u,OF 5: fi 1: nlV V^/Aavaaiii^"^ ^y. j - - I ^OfCALIFO/.*^ iVrSl iV©i ^ ^^Wt•ljNIVER% ^l ^ ^^^l•llBRARYQ^ 30 S ^•j/Oinvj-jo"^ ^WElIN(Vn?.t;>. == ee s s 5? naOJITVDJO'^ MIFO% .^.OFCAIIF0% ^ ... ,\WEUNIVERSy/t "^J^UONVSOl^ v^lOSANCEier- VOFCAIIFOR^ MSI .irKAMf.nrr. .v\1P.tlRDiDV/)^ .i\f4IRDADV/)A -(V^FIIMIVFP.C/x. 3 /'/^ REMEDIES AND REMEDIAL RIGHTS THE CITIL ACTION, ACCOBDIKG TO THE REFORMED AMERICAN PROCEDURE. A TREATISE ADAPTED TO USE IN ALL THE STATES AND TERRITORIES WHERE THAT SYSTEM PREVAILS. BY JOHN NORTON POMEROY, LL.D., AUTHOE OF "AN INTKODUCTIOX TO MUXICIPAL LAW," "AN I2fTEODUCTIOK TO CONSTITUTIONAL LAW," ETC., ETC. SECOND EDITION. BOSTON: LITTLE, BROWN, AND COMPANY. 1883. 'f'?V^^ Entered according to Act of Congress, in the year 1876, By John Norton Pomeroy, In the Oflice of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1883, By John Norton I'umeroy, In the Ollice of the Librarian of Congress, at Washington. T m3 University Press: John Wilson and Son, Cambridob. TO AARON J. VANDERPOEL, Esq., OF THE NEW YORK BAK, THIS BOOK IS INSCRIBED ALIKE AS A TRIBUTE TO HIS HIGH PROFESSIONAX, CHARACTER, AND A3 AN EXPRESSION OF THE AIJTHOB'S PERSONAL REGARD. 4/?0^ PREFACE TO THE SECOND EDITION. A SECOND EDITION of this work has for some time been needed, and the delay in preparing it must be attributed to an overwhelming pressure of other engagements. In now present- ing it to the profession, I desire to express my sincere thanks for the favor with which the book has been received by the Bar and the Bench. The work, when originally published, was to some extent an experiment. It was, I believe, the first attempt pro- fessedly to treat of those features which are common to all the codes of procedure, and which constitute the essential elements of the new system. In it I ventured to call that system the "Reformed American System of Procedure," and was gratified to know that the name was accepted by one of its principal authors as distinc- tive and appropriate. The abbreviated title 4)y which my book is commonly known, — " Remedies," — and which it is now too late to change, is in some respects misleading ; for it fails to in- dicate the real subject-matter and purpose of the work. In the full title given to it, the words " by the civil action " were meant to be the most emphatic and important. The work is intended to be both a scientific and a practical treatise of the fundamental principles and essential elements of the " Civil Action," as the instrument for administering justice established by the Reformed Procedure in all the Code States of our own country, and in Eng- land, and in many of the British colonies. Whatever varieties of vi PREFACE TO THE SECOND EDITION, detail in matters of mere practice may be found in the different State codes, these principles and elements are fundamental and essential, and are inherent in the Reformed Procedure wherever it prevails, whether in the United States or in Great Britain. They are the union of legal and equitable rights of action and remedies in the same civil action, resulting from the abolition of the distinction between actions at law and suits in equity, and of the forms of legal actions ; the equitable instead of the legal theory of parties ; the general principles of pleading, including the union of causes of action in the same complaint or petition ; the mode of stating causes of action ; the answer of "denial," and what defences may be proved under it ; the answer of " new matter," and what defences it embraces, and equitable defences ; the counter-claim, including all affirmative relief, legal or equita- ble, to the defendant; the final reliefs, or judgments. In adjudi- cating upon these most important matters, the courts of the vari- ous Code States have, with a remarkable unanimity, substantially reached the same conclusions. At the inauguration of the new system, it is not surprising that there should have been some discrepancy of judicial opinion ; but every year has shown a stronger tendency towards a complete agreement, so that the unity of the system throughout the Code States is now virtually established. It would be a source of the highest gratification if I might believe that my own book had contributed anything to the attainment of this result. These are the subjects with which it deals ; and by citing and comparing the corresponding sections of the codes, as well as the decisions interpreting them, in differ- ent States, it endeavors to present all that is essential to the reformed procedure, as one complete whole, and as both scien- tifically and practically superior to the common-law methods which it has displaced. In preparing this edition, I have not thought it expedient to alter in any substantial manner the original text ; a few mistakes and omissions have been corrected, but the text stands virtually PREFACE TO THE SECOND EDITION. VU unchanged. I have seen no sufficient reason to modify any of its theoretical conclusions, and several of its practical conclusions have been sustained by the courts ; none, so far as I am aware, have been distinctly condemned. The new matter is, therefore, chiefly confined to the notes ; and it brings the discussions of the text, as illustrated by judicial opinion, down to the present day. The important decisions in each of the Code States and Territo- ries, made since the publication of the first edition, have been collected and arranged in the notes in connection with the doc- trines and rules to which they relate. Some cases may have been overlooked, but I believe the additions will enable the reader to discover the present condition of the law and of judi- cial authority upon all the important topics discussed in the text. A new and much fuller Index has also been added. I had re- ceived complaints from several sources that the Index of the first edition was too meagre for the wants of the practising lawyer ; I trust it will be found that this defect has been cured. All other substantial additions, and new materials or modes of treat- ment, are reserved for the supplemental work on the Civil Action, by which I still hope to complete my original design. The Reformed Procedure is no longer an experiment. It is certain to become universal wherever the common law and equity jurisprudence is found. The fact that it was accepted, in all of its essentials, by the ablest judges, lawyers, and statesmen of England, shows that it rests upon a scientific as well as practical basis. It has been adopted, since the publication of this work, by two additional American States, Colorado and Connecticut ; its adoption in substance by all is, in my opinion, a mere ques- tion of time. There is, however, one grave defect in the legis- lation of all our American commonwealths, — with the single exception of Connecticut, — to which I would earnestly call the attention of all judges and lawyers who are interested in the im- provement of the law : a defect which is the immediate cause of nearly all the uncertainties, discrepancies, and conflicts of judicial Viii PREFACE TO THE SECOND EDITION. opinion that have arisen under the system. By the union of legal and equitable rights and remedies in the single civil action, courts were necessarily confronted with the direct opposition between many doctrines and rules of the common law and of equity, applicable to exactly the same condition of facts ; and the question at once arose, How is this opposition to be dealt with in the practical administration of justice ? Every lawyer who has carefully considered this matter, and especially every lawyer who has examined the course of judicial decision through all the Code States, will agree with me that this conflict between equitable and legal rules concerning the same state of facts has been the source of all the real difficulty in interpreting and set- tling the Reformed Procedure. Some courts have evaded the difficulty by retaining the distinctions between legal and equita- ble actions, and legal and equitable remedies, practically as broad and well defined as under the former S3'stem ; but this method plainly violates both the spirit and the letter of the codes. The whole difficulty and its cause might be removed by a brief addi- tion to the codes, which would carry out to its final results the clear intent of the reform. The same difficulty presented itself to the advocates of the new procedure in England while the measure was pending in Parliament; it was obviated by insert- ing in the " Supreme Court of Judicature Act " the following clause : " Generally in all matters in which there is any conflict or variance between the rules of equity and the rules of the com- mon law, with reference to the same matter, the rules of equity shall prevail.'" The State of Connecticut has incorporated the clause into its recent reformatory legislation. If the provision, or one substantially the same, were added to all the codes, the union of legal and equitable remedies would be made })erfect, and the Reformed Procedure would be freed fiom the only practical difficulty which it has encountered ; until such an amendment is effected, it must lemain somewhat crippled in it^ operations, and imperfect in its results. PREFACE TO THE SECOND EDITION. ix In conclusion, I desire to acknowledge the aid which I have received, in preparing this edition, from ray former students, Mr. Charles W. Slack and Mr. Marcellus A. Dorn, members of the San Francisco Bar. JOHN NORTON POME ROY. San Francisco, Feb. 17, 1883. Hastings College of the Law : University of California. PREFACE TO THE FIRST EDITION. The new procedure which was devised by the codifiers and inaugurated by the Legislature of New York, in the year 1848, now prevails in more than twenty other States and Territories of this country, and may, therefore, be properly termed " The Re- formed American System of Procedure." After a most careful consideration, and the most cautious and deliberate examination by a commission composed of the ablest judges and barristers, it has finally been accepted in its essential features and elements by the British Parliament, and has recently displaced the time-hon- ored methods of the common-law and the equity courts in Eng- land. This fact alone may be regarded as decisive of its intrinsic excellence, as conclusively demonstrating that it is founded upon natural and true principles ; that it embodies rational notions in respect to the manner of conducting judicial controversies be- tween private litigants ; and that, in its conception and design, it is far superior to the artificial, technical, and arbitrary modes which had so long been looked upon as perfect by generations of English and American lawyers. It is shown in the Intro- ductory Chapter of the present work that this whole course of reform is but a repetition, not simply in a general outline, but even in the minute details, of what took place in the jurispru- dence of Rome ; so that the modern legislation has, in this re- spect, merely followed an inevitable law of progress, which XU PREFACE TO THE FIRST EDIHON. always works out the same results under the same social con- ditions and circumstances. Although the codes which have been enacted in the various States and Territories sometimes differ slightly from each other in respect to the minor measures and steps of practice, and al- though some of them, in reference to certain special matters, have more freely carried out the original and underlying theory to its logical results, and have by distinct provisions expressl}^ abro- gated particular dogmas of the old law, which in other States are only included in the general language of the statute, and are thus left within the domain of judicial construction, yet in all its essential notions and fundamental doctrines the reformed pro- cedure is one and the same wherever it prevails, either in the United States or in England, The " Civil Action " which it has created and introduced as the single and sufficient instrument for the trial of all judicial controversies between private suitora and for the pursuit of all judicial remedies is the same in concep- tion, in form, and in substance, possessing the same characteristic features, governed by the same elementary rules, and embodying the same organic principles. How completely the reformed sys- tem is severed from the ancient common-law modes, how entirely it abandons all the arbitrary, formal, and technical notions which were their very essence and life, and how firmly it rests upon natural and necessary facts as its foundations, is shown in the Introductory Cliai)ter and in other portions of this work. It is impossible, therefore, that its full benefits can be attained, and tliat full scnpe can be given to its original purpose, until the courts and the profession shall accept it in its simplicity, and shall cease to obstruct its efficient operation and to interrupt its free movements by antiquated dogmas and rejected doctrines drawn from the system wiiich it lias thoroughly overthrown and 8U[»plantc'd. The design of the author is to present the entire rcuicdial department of the law — the remedies and remedial rights — PREFACE TO THE FIRST EDITION. XUl according to the reformed procedure. The volume now sub- mitted to the profession, although in itself a complete and inde- pendent work, accomplishes a part of this full purpose. It treats of the " Civil Action," which is the central fact of the new pro- cedure, and which, as has been said, is everywhere the same in all its distinctive features and elements. It is not a treatise upon " Practice ; " but it discusses in a thoroughly practical manner those features and elements which constitute the Civil Action, and which differentiate that judicial proceeding from the action at law and the suit in equity. The discussions and conclusions which it contains are not theoretical ; they are everywhere and always based upon an exhaustive examination, analysis, and com- parison of the decided cases : and the author has freely drawn upon the judicial decisions of the States, and by this means presents to the reader a body of authority which fully indicates the action of the courts and their theories and modes of interpre- tation throughout the commonwealths in which the system pre- vails. Although it cannot be pretended that every case referring to the Civil Action has been cited, — in fact, many of them are unworthy of citation, since they are the reflections of crude and incorrect opinions long since rejected, while others are the mere repetitions of points already well settled, — yet it is believed that none are omitted which contain the statement of a new and correct principle. The author has endeavored to collect all the leading cases in every State, — all those which have been finally accepted as authoritative, and which represent the mature thought and convictions of the judiciary ; and in no other work can be found such a mass of judicial opinion gathered from courts of the various States, giving a construction to tlie statu- tory provisions whicli describe the Civil Action, and building up an harmonious and consistent system of procedure upon the reform legislation. While the author has everywhere endeav- ored to reach the true principles of interpretation, and to extract from the cases a statement of universal doctrines which shall Xi7 PBEFACE TO THE FIRST EDITION, aid in the solution of all future questions, and has not scrupled to express his own views and opinions, such speculations and arguments are always plainly indicated and represented in their real character, so that the reader need never confound them with the results of actual judicial decision, and be thus led to accept as settled law what is only a personal conviction or suggestion of the author. While the work is thus intended to be a practical handbook for the lawyer, as an aid in the e very-day duties of his profession, it is hoped that its use may tend to bring the procedures of the different States into closer relations, and may finally produce the perfect identity of method and form which Ls possible from the legislation itself, and which was, beyond doubt, the design of the several legislatures in adopting the reform. Such an iden- tity is entirely practicable, and the full beneficial results of the change will not be attained until it is reached. In every State there lias accumulated a growing amount of judicial interpreta- tion which would be of the greatest assistance to the Bench and Bar of all the other States ; and in several of them certain spe- cial rules and methods have been wrought out and finally estab- lished, which need only to be known in order to be universally followed. Such a reform, founded on the nature of things, and not upon artificial and arbitrary assumptions, never goes back- ward : and the time will surely come when the system that has already spread so widely will be introduced into every com- monwealth, and when the distinction between legal and equita- ble modes of pursuing remedies will disappear, and finally be forgotten. The central conception of the reformed procedure, and the one from which all the elements of the Civil Action are developed, is the abolition of the dLstinction between legal and equitable suits, and the substitution of one judicial instrument, by which both legal and equitable remedies may be obtained, either singly or in combination. The full scope and effect of this grand principle PREFACE TO THE FIRST EDITION. XV are exhaustively discussed in the opening chapter, while the necessary limitations upon its operation which inhere in our judi- cial institutions are also carefully pointed out. Having thus laid the foundation upon which the whole superstructure rests, the remaining parts of the Civil Action are examined in turn, and the practical rules which control their use are minutely explained in the light of judicial authority. These general features are the parties to the Civil Action, plaintiff and defendant, the presenta- tion of the cause of action by the plaintiff, and of the defence or claim of affirmative relief by the defendant. The two latter divisions include, among other important particulars, the princi- ples of the reformed pleading ; the scope and effect of the gen- eral denial, with the defences which may be proved under it; the nature and object of specific denials ; the answer of new matter, and the defences which must be specially pleaded ; and the coun- ter-claim. The discussion of these special topics, being of the greatest practical importance, has been purposely made very full and minute. An attempt has also been made to obtain, in a general and complete form, the true meaning of certain phrases found in all the codes, upon which the interpretation of most important provisions, and the practical rules resulting therefrom, so closely depend. Among the statutory phrases are " the cause of action," "the subject of action," "transaction," "causes of action arising out of the same transaction," and the like. If the author has succeeded in ascertaining the true meaning of these and similar expressions, and the legislative intent in their use, he is confident that he will have rendered a substantial aid to the profession, and even to the courts, in the difficult work of statu- tory interpretation. The treatise, as a whole, if its purpose has been properly carried out, will be a practical handbook, adapted to the use of the profession in every State and Territory where the reformed procedure prevails. It is also designed as a text- book for students, whether in offices or in law schools ; and to that end frequent reference has been made to the common-law and Xvi PREFACE TO THE FIRST EDITION. equity systems of procedure, in explanation of tbeir more general doctrines and principles, and in comparing them with those which have been substituted in their place. If its reception by the Bar shall be favorable, the author's original design will be completed by a second, but entirely distinct and independent, volume, which will treat of the remedies arid remedial rights that may be ob- tained and enforced by means of the Civil Action, their nature and classification, and the particular rules and doctrines which regulate the employment of the action in their pursuit. JOHN NORTON POMEROY. Rochester, N. Y., December, 1875. TABLE OF CONTENTS. INTRODUCTORY CHAPTER. Section. Remedies defined 1-4 SECTION FIRST. The Remedial System prior to the Modern Reforms. The prevalence of technical forms 5 I. The Universal Principle of Legal Development in respect to Remedies and Remedial Rights. Use of forms ; fictions ; equity ; and legislation 6-10 II. The Workings of this Principle in the Roman Law. Early actions ; jurisdiction of the praetors ; formulae 11-14 III. The Workings of this Principle in the English Laio. Common-law actions described 15-21 Origin and growth of equity 22 Resemblance between the English and the Roman laws 23 Effect of the use of actions upon the law 24 SECTION SECOND. Remedies and Remedial Rights prior to the Modern Reform in Procedure. The practical mode of classification under the former system . . . 25-27 SECTION THIRD. Remedies and Remedial Rights under the Reformed American Procedure. I. The Reformatory T^egislation. Fundamental principles of the new procedure 28-30 h xviii TABLE OF CONTENTS. IT. The General Nature of the Civil Action. Essential features and principles of the civil action described . . . 31-41 Plan and divisions of this work 42, 48 PA.RT FIRST. THE CIVIL ACTION ACCORDING TO THE AMERICAN SYS- TEM OF PROCEDURE: ITS ESSENTIAL PRINCIPLES AND FEATURES. CHAPTER FIRST. Tlie Principle of Unity in all Judicial Proceedings ; Abolition of the Dis- tinctions between Actions at Law and Suits in Equity, and of the Com- mon-Laic Forms of Action ; Adoption of a Single Civil Action for all Purposes. Statutory provisions 44 SECTION FIRST. A Theoretical Unity in Procf.dure ; or, The Theory of an Abso- lute Unity of Legal and Equitable Actions. The nature of " equity " 45-53 Equitable primary rights and remedies compared with legal .... 46-52 Theory of a complete union of legal and equitable actions .... 54-64 SECTION SECOND. The General Principles in respect to a Union of Legal and Equitable Methods as adopted by the Courts : how far such A Union has been effected by a Judicial Interpretation of the Codes. Statement of the question to be discussed 65 Restrictive system of interpretation advocated by certain judges . . 66 Liberal and correct system established by the courts 67-73 This system as applied to pleading 74, 75 SECTION THIRD. The Combination by the Plaintiff of Legal and Equitable Pri- mary Rights and Remedies in one Action. General nature of such a union 76, 77 The various cases of legal and equitable causes of action and remedies united in the same suit, stated and illustrated 78-85 Mode of trial of legal and equitable issues when thus united ... 86 TABLE OF CONTENTS. XIX SECTION FOURTH. Equitable Defences to Actions brought to obtain Legal Remedies. Former mode of using an equitable right to defeat a legal action . . 87 Nature of an equitable defence ; whether it must entitle defendant to affirmative relief 88-91 Examples of equitable defences 92-97 SECTION FIFTH. A Legal Remedy obtained upon an Equitable Ownership ob Equitable Primary Right. Whether the owner of an equitable estate in land can ever maintain a legal action to recover possession, discussed 98-103 Actions between partners, whether the former rule has been changed 104 Examples of other actions 105 Summary of the foregoing discussion 106 SECTION SIXTH. The Nature of Civil Actions, and the Essential Differences between them. Essential distinctions still existing between actions ; in what features these distinctions are found 107-111 CHAPTER SECOND. The Parties to the Civil Action. SECTION FIRST. Statutory Provisions. Legal and equitable theories of parties contrasted 112 Provisions of the codes, and the general principles established by them 113-123 SECTION SECOND. The Real Party in Interest to be made Plaintiff. Provision of the codes 124 Discussion of the doctrine that the assignee of a thing in action should sue in his own name 125-138 XX TABLE OF CONTENTS. The person for whose benefit a promise is made to another may sue in his own name 139 Other examples of real parties in interest 140, 141 Suits by tax-payers against local officials, &c. ; and by the people . 142 " grantee of land in name of the grantor 143 SECTION THIRD. The Assignability of Tiiixgs in Action. The principle of survivorship stated and discussed 144—146 "What things in action are assignable ; examples 147-152 Things in action not assignable 152, 153 SECTION FOURTH. Effkct of an Assignment of a thing in Action upon the Defences THERETO. Provision of the codes 154 Interpretation of this provision ; equities and defences in favor of the debtor 155-157 Equities between assignors and assignees ; general discussion of the doctrine 158-162 When defendant can set up a claim against assignor as a set-off or other defence to the assisrnee 163-170 SECTION FIFTH. When a Trustee of an Express Trust may sue. " Trustee of an express trust " defined 171-174 Suits by persons " by whom, &c. , a contract is made for the benefit of another" 175-177 Suits by other trustees 178 " public officers, &c. ; by " persons expressly authorized by statute " 179, 180 " executors or administrators ; special law of California . . 181 " guardians of infants ; of lunatics, &c 182 SECTION SIXTH. Wno MAY BE joined AS PLAINTIFFS. Provisions of the codes 183 Common-law rules as to joinder of plaintiffs ; joint right . . . . 184-193 Fundamental principles of the codes as shown by their language . 194-200 TABLE OF CONTENTS. XXI General theory of interpretation established by the courts . . . 201-205 How questions as to misjoinder or nonjoinder of plaintiffs are raised 20G-216 Rules as to Plaintiffs in Particular Classes of Cases. Divisions of the subject 217 First. Union or Separation of Plaintiffs in Legal Actions. I. Actions by owners in common, or joint-owners of land . . . 218-220 II. Actions by joint-owners of chattels 221-225 III. Actions by persons having joint rights arising from contract . 226-228 IV. Actions by persons having several rights arising from contract 229 Y. Actions by persons having joint rights arising from personal torts 230 _ YI. Actions by persons having several rights arising from personal torts 231 YII. Actions in special cases 232, 233 Second. Actions hj and between Hushand and Wife. Statutory provisions in various States 234-236 Interpretation : cases discussed in which a wife may sue alone, or with her husband ; when she may sue her husband 237-246 Third. Equitable Actions. Doctrines and rules as to plaintiffs in equitable actions fully dis- cussed 247-270 SECTION" SEVENTH. TVho may be joined as Defendants. Provisions of the codes ; divisions of the subject 271, 272 Common-law rules as to the joinder of defendants 273-283 General piinciples of the reformed procedure 284-286 How questions of misjoinder and nonjoinder are to be raised , . . 287-292 Effect of a nonjoinder ; bringing in the necessary parties .... 293 First. Rules as to Defendants in Legal Actions. I. In actions against owners or occupants of land 294-296 II. In actions against owners or possessors of chattels .... 297, 298 HI. In actions upon contract, joint liability 299-304 IV. In actions upon contract, joint and several liability .... 305 \. In actions upon contract, several liability 306 VI. In actions for torts 307-314 VII. In actions in settlement of decedents' estates 315 VIII. In special actions 316, 317 Xxii TABLE OF CONTENTS. Second. Actions against Husband and Wife. General nature of the modern legislation 318, 319 Discussion of cases when wife may be sued alone ; when sued with her husband 320-328 lliird. Equitable Actions. I. General principles 329-332 II. Actions to foreclose mortgages 333-345 III. Creditors' actions 346-350 IV. Actions relating to decedents' estates 351-355 V. Actions in reference to trusts 356-359 VI. Actions against corporations and stockholders ; and between partners 360-305 VII. Actions for a specific performance 366-368 VIII. Actions to quiet titles 369-372 IX. Actions for a partition 373-377 X. Actions for miscellaneous objects ; partnership matters and accounting ; rescission ; enforcement of liens ; contribu- tion ; by taxpayers ; to redeem 378-387 SECTION EIGHTH. When one Person may sue or be sued on Behalf of all the Persons interested. Provisions of the codes 388 Their interpretation, general scope and meaning 389-393 Cases in which such a representative action may be brought . . . 394, 395 Rights of the persons represented ; how they are affected by the de- cree, &c 396-401 SECTION NINTH. Persons severally Liable on the Same Instrument. Provisions of the codes 402, 403 Their interpretation 404-406 Discussion of cases within the provision, and of rules resulting from it 407-410 SECTION TENTH. Bringing in New Parties ; Intervention. Statutory provisions 411-413 Proceedings provided for by the codes 414-417 I. Bringing in additional parties ; examples 418-422 II. Intervention, or the coming in of third persons on their own motion, as found in the codes generally 423-425 III. Iowa and California system of intervention 426-431 TABLE OF CONTENTS. XXIU CHAPTER THIRD. The Affii-mative Subject-Matter of the Action : the Formal Statement of the Cause of Action by the Plaintiff. SECTION FIRST. The Statutory Provisions. Provisions of the codes 432-435 Divisions of the subject 436 SECTION SECOND. Joinder of Causes of Action. Divisions of the section 437 I. Statutory provisions 438-441 II. The fornas and modes in which a misjoinder may occur ; and the manner in which it must be objected to and corrected . 442-451 III. Meaning of the term " cause of action; " when one cause of action only is stated, although several different kinds of re- lief are demanded 452-461 IV. The joinder of causes of action arising out of the same transac- tion ; or transactions connected with the same subject of action; legal meaning of the terms "transaction" and " subject of action " 462-478 V. Instances in which the proper joinder of causes of action is connected with the proper joinder of defendants ; discussion of the provision that all the causes of action must affect all the parties 479-490 VI. Instances in which all the causes of action are against a single defendant, or against all the defendants alike 491-505 SECTION THIRD. The General Principles of Pleading. The ancient types of pleading ; by allegation ; equitable, and com- mon-law, described 506-512 The reformed pleading ; on what based ; extent of its application . 513-516 The fundamental rules stated 517 " Cause of action" defined ; distinction between legal and equita- ble ; elements which enter into the cause of action 518-529 Foregoing doctrines ilustrated by decided cases 530-532 Examples of sufficient and insufiicient allegations 533-536 Mode of alleging an implied promise, discussed 537-541 xxiv TABLE OF CONTENTS. Use of the common counts, discussed 542-544 Further divisions of the subject 545 Liberal construction of pleadings 546, 547 I. InsufHcient, imperfect, &c., allegations ; how objected to and corrected 548-550 IT. Redundant and irrelevant 551, 552 III. The cause of action or defence proved must correspond with that alleged ; actions ex contractu and ex delicto .... 553-564 Amendments of pleadings 5G5, 566 Election between actions for tort and those on contract .... 5G7-573 SECTIOX FOURTH. The Form of the Complaint or Petition. How separate causes of action should be stated 574-576 Joint demurrers and answers, effect of 577 Allegations admitted by a failure to deny 578 Defects in complaint or petition when supplied by the answer . . 579 Prayer for relief, effect of 580 CHAPTER FOURTH. The Defensive Subject-Matter of the Action; the Formal Presentation of his Defence, or his Claim for Affirmative Relief, by the Defendant. SECTION FIRST. Statutory Provisions. Provisions of the codes, arranged and classified 581-590 Divisions of this chapter 591 SECTION SECOND. General Requisites of an Answer ; General Rules Applicable to ALL Answers. Kinds of defences ; questions of form and of substance concerning them 592-595 Defective answers, mode of correcting them 596-605 Joint answers ; demurrers to entire answers 606 Pailial defences, how pleaded 607-609 TABLE OF CONTENTS. XXV SECTION THIRD. The Defence of Denials. Kinds of denials described ; divisions of tlie subject 610-612 I. External form of denials general or specific 013 II. Nature and object of specific denials 614-016 III. Allegations admitted by a failure to deny 017 IV. Denials in the form of a negative pregnant 018-623 V. Argumentative denials ; specific defences equivalent to the general denial 624-632 VI. General denials of all allegations not otherwise admitted, &c. 633-636 VIL Allegations of issuable facts not conclusions of law to be denied 637-039 VIII. Denials of knowledge or information, &c 040, 641 IX. Issues raised by denials, and what may be proved under them 642-682 General statement of the questions involved 642-644 " General issues " at the common law stated and discussed . 645-656 General nature and object of the " general denial;" what issues it raises 657-669 ''General nature of the defences admissible under it ... . 670-673 Particular defences which have been held admissible . . . 674-682 X. Some special statutory rules concerning the general denial . 683-685 SECTION FOURTH. The Defence of New Matter. Divisions of the subject 686 I. How defences of new matter should be pleaded 687-689 II. General nature of new matter ; defences in mitigation and in abatement 690-698 III. Particular defences held to be new matter 099-714 SECTION FIFTH. Union of Defences in the Same Answer. Divisions of the subject, &c 715 I. How the separate defences should be stated 710-720 II. What kind of defences may be joined ; in abatement and in bar ; inconsistent defences 720-725 SECTION SIXTH. Counter-claim, Cross-Complaint, and Cross-Demand. Classification and divisions of the subject 726, 727 Cross-demands in the former procedure, set-off, recoupment . . . 728-733 I. General description of the counter-claim ; its nature, objects, and uses 734-748 XXVI TABLE OF CONTENTS. 11. The parties in their relations with the counter-claim .... 749-762 1. The defendant : must be a demand in favor of the defend- ant wlio pleads it 749-751 2. The plaintiff : must in general be a demand against the plaintiff or all the plaintiffs 752-754 3. When it may be in favor of one or more of sevei'al defend- ants, and against one or more of several plaintiffs . . . 755-762 III. The subject-matter of the counter-claim, or the nature of the causes of action -which may be pleaded 763-803 A. Whether it may be an equitable cause of action .... 764-767 B. The particular questions arising under the first clause of the statutory definition 768-794 General principles of construction 769-776 I. Where the counter-claim arises out of the contract set forth in the complaint or petition 777-780 11. Where it arises out of the transaction set forth in the comi^laint or petition 781-792 III. Where it is connected with the subject of the action . 793, 794 C. Counter-claims embraced within the second subdivision of tlie statutory definition, and set-offs 795-803 IV. Some miscellaneous provisions in relation to counter-claims . 804, 805 Cross-complaints 800-808 TABLE OF CASES CITED. [the references ABE TO THE PAGES.] Abadie v. Carrillo, 32 Cal. 172 594 Abbe V. Clarke, 31 Barb. 238 250, 750 Abbot V. Chapman, 2 Lev. 81 705 Abbott V. Jewett. 25 Hun, 603 463 V. Monti, 3 Col. 501 121, 845 Abeel v. Van Gelder, 36 N. Y. 513 351 Abendroth r. Boardley, 27 Wis. 555 639 Abcraman Iron Co. v. Wiekens, L. 11. 4 Cb. App. lOi 316 Abiel V. Harrintrton, 18 Kan. 253 587 Acker v. McCuilousli, 50 Ind. 447 644 Ackley v. Tarbo.K, 31 N. Y. 564 253, 289 Ackroyd v. Brisjgs, 14 W. R. 25 804 Adair v. New Kiver Co., 11 Ves. 444 424, 441, 444 Adams v. Adams, 25 Minn. 72 587 V. Bissell, 28 Barb. 382 512, 519 V. Curtis. 4 Lans. 164 290 V. Farr, 5 N. Y. Sup. Ct. 59 281 V. Hall. 2 Vt. 9 334 V. HoUev, 12 How. Pr. 326 593 V. Honness, 62 Barb. 326 289, 376 V. Kodarmel. 19 Ind. 339 198, 201 V. Sater, 19 Ind. 418 287 V. Trigg, 37 Mo. 141 761 Adams Ex. Co. v. Darnell, 31 Ind. 20 675, 685, 714, 722 V. Hill, 43 Ind. 157 727 Addicken v. vScHirubbe, 45 Iowa, 315 522 Adkins v. Adkins, 48 Ind. 12 668 Agar V. Fairta.x, 17 Ves. 542 428 Agard V. Valencia, 39 Cal. 292 420 Agate V. King, 17 Abb. Pr. 159 782 Aliern v. Collins, 39 Mo. 145 556 Aiken v. Bruen, 21 Ind. 137 641 Ainsley v. Mead, 3 Lans. 116 376 Ainslie v. Boynton, 2 Barb. 258 189 Ainsworth v. Bowen, 9 Wis. 348 812, 823, 827 Akerly v. Vilas, 15 Wis. 401 812, 833, 842 Aleix V. Derbigny. 22 La. An. 385 473 Alexander, In re. 37 Iowa, 454 290 V. Barker, 2 Tyr. 140 227 Alexander v. Cana, 1 De G. & Sm. 415 422 V. Gaar, 15 Ind. 89 V. Hurd, 64 N. Y. 228 i>. Jacoby, 23 Oliio St. 358 V. Quigley, 2 Duvall, 300 Alford V. Barnuni, 45 Cal. 482 Allaire v. Whitney, I Hill, 484 Allen V. Brown, 44 N. Y. 228 V. Buffalo, 38 N. Y. 280 I'. Fosgate, 11 How. Pr. 218 V. Jeraidd, 31 Ind. 372 V. Knight, 5 Hare, 272 V. Miller, 11 Oliio St. 374 V. Patterson, 7 N. Y. 476 V. Randolph, 48 Ind. 4'.)6 V. Ranson, 44 Mo. 263 r. Saunders, 6 Neb. 436 V. Shackelton, 15 Ohio St. 145 250 281 272, 276 405 751 769 15.5, 161 251, 2-53 362, 456 371 314 165 94. 593 368, 685, 829 351 733 784, 83.'? 418 167, 168 674, 688 739 V. Smith, 16 N. Y. 415 V. Thomas, 3 Mete. 198 AUis V. Leonard, 46 N. Y. 6S V. Nanson, 41 Ind. 154 Allison V. Chicago, &c. R. R., 42 Iowa, 274 740 V. Louisville, &c. R. R., 9 Bush, 247 174 t'. Robinson, 78 N. C. 222 302 V. Weller, 6 N. Y. Sup. Ct. 291 404 AUred v. Brav, 41 Mo. 484 364 Alnutt V. Leper, 48 Mo. 319 344, 345 Alspaugh V. Franklin, &c. Ass'n, 51 Ind. 271 480 Alston V. Wilson, 44 Iowa, 1.30 642 Althouse V. Rice, 4 E. D. Smith, 347 744 Alvey V. Wilson, 9 Kan. 401 355 Alvord V. Essner, 45 Ind. 150 668 Amador Co. v. Buttertield, 51 Cal. 526 714, 760, 761 American, &c. Co. v. Gurnee, 45 Wis. 49 641 Ammerman v. Crosby, 26 Ind. 451 714, 725 Amos V. Humbolt Loan Ass'n, 21 Kan. 474 843 xx^'Ul TABLE OF CASES CITED. Anderson v. Case, 28 Wis. 505 V. Hill, 53 Barb. 238 G17, G21, (i2(i 373, 493, 5()'J, 520 V. Hunn, 5 Hun, 79 85, 90 V. Martindale, 1 Kast, 497 22(5, 227, 229 V. Nicholas, 28 N. Y. 600 ]90, 191 V. Sutton, 2 Duv. 480 307 V. Watson, 3 .Meto. 509 224 Andreas v. llolconihf, 22 Minn. 339 5»(J Andrews v. Bund, 10 Barb. 033 707, 717 V. Brown, 21 Ala. 437 V. Gillespie, 47 N. Y. 487 V. McDaniel, 68 N. C. 385 V. Mokelumne Hill Co., 7 722 310 118, 189, 418, 804 154, 102 Cal. sm v. Pratt. 44 Cal. 309 Annett r. Kerr, 28 How. Pr. 324 Anonvmous, 3 Atk. 572 8" How. Pr. 434 3 Swanst. 139 1 ViTn. 201 1 Ves. 29 Anson v. Anson, 20 Iowa, 55 247, 250, 270, 274 174 217 319 738 304 410 530 391, 399, 403, 437 730 399, 401 849 V. Dwiglit, 18 Iowa, 241 Anthony v. Nye, 30 Cal. 401 V. Stinson, 4 Kan. 211 Antisdel v. Cliieago & N. W, R. R., 26 Wis. 145 582, 606 Archibald c. Mut. Life Ins. Co., 38 Wis. 542 152 Ardrv v. Ardry, 16 Louis. 264 473 Arendell v. Blackwell, Dev. Eq. 3-54 310 Argotsinger r. Vines, 82 N. Y. 308 586 Argucll.) V. Edinger, 10 Cal. 150 118 Ariniond r. Green Bay, &c. Co., 31 Wis. 316 622 Arnnne v. Spencer, 4 Wend. 406 229 Armstrong i: Armstrong, 27 Ind. 186 806 V. Ilali, 17 How. Pr. 76 540 V. Hinds, 8 Minn. 254 518, 534 V. Nicliols, 32 Ind. 223 379 r. Vroman. 11 Minn. 220 416 Arnold v. Angell, 62 N. Y. 508 104. 611, 614 V. Bainbrigge, 2 De G. F. & J. 92 308, 400 V. Baker, 6 Neb. 1-34 586 V. Dimon, 4 Sandf. 680 761 f. Nichols, 64 N. Y. 117 169 V. Suffolk IJank. 27 Barb. 424 363 Arsdale v. Drake. 2 Barl). 599 ^ 428 Artliur V. Homestead Ins. Co., 78 N. Y. 402 105 Aschermann v. Wrigglesworth, 44 Wis. 255 Aslibv V. Winston, 26 Mo. 210 Ashlt'y I'. Marshall, 29 N. Y. 494 Askins v. Hearns, 3 Abb. Pr. 184 Atkinson v. Collins, 9 Abb. Pr. 353 613 492 834 810. 831 596 Atteberry v. Powell, 29 Mo. 429 Atty.-Gen. v. Mayor, 3 Duer, 119 V. Stephens, 1 K. & J. 724 V. Wynne, Mos. 12(5 Atwater v. Schcnck, 9 Wis. 160 Aiibuchon v. Lory, 33 Mo. 99 Auburn, Nat. Bk. of v. Lewis, 81 N. Y. 15 Aucker v. Adams, 23 Ohio St. 543 Audsley v. Horn, 26 Bcav. 195 308, Auld r. Butcher, 2 Kan. 135 Aull V. Jones, 5 Neb. .500 Austin V. Miinro, 47 N. Y. 360 526, V. Rawdon, 44 N. Y. 63 618, V. Sciduvster, 7 Hun, 275 Averbeck i.'."Hall, 14 Bush, 505 Ayers v. Lawrence, 59 N. Y. 192 Aylesworth c. Brown, 31 Ind. 270 Ayrault ?•. Pacific Bank, 6 Kobt. 337 Ayres v. Covill, 18 Barb. 264 V. O 'Farrell, 4 Robt. 668 B. B V. Walford, 4 Russ. 872 Baas V. Chicago, &c. R. R., 39 Wis. 296 400, 403, Babbage v. Baptist Church, 54 Iowa, 172 Babbett v. Young, 51 Barb. 466 Backus V. Clark, 1 Kan. 303 Badger r. Benedict, 4 Abb. Pr. 176 Badgley v. Decker, 44 Barb. 577 282, Baggott V. Boulger, 2 Duer, 160 Bagsliaw v. Eastern Union R. Co., 7 Hare, 114 Bailey v. Bayne, 20 Kan. 657 V. Bergen, 4 N. Y. Sup. Ct. 642 V. Inglee, 2 Paige, 278 V. Myrick, 36 Me. 50 308, Bainbridge t'. Burton, 2 Beav. 539 Baird ;-. Morford, 29 Iowa, 531 761, Baken v. Hander, 6 N. Y. S. C. 440 Baker v. Bailey, 16 Barb. 54 V. Bartol, 7 Cal. 551 V. Connell, 1 Daly, 469 V. Dessauer, 49 Ind. 28 v. Jewell, 6 Mass. 460 228, V. Kistler, 13 Ind. 63 675, 1-. Rilev, 16 Ind. 479 Balch V. Wilson, 25 Minn. 299 Baldrcer. Davenport, 7 La. An. 587 Baldwin v. Canfield, 26 .Minn. 43 V. Martin, 14 Abb. Pr. N. S. 9 V. V. S. Tel. Co., 54 Barb. 505 Ball V. Bennett, 21 Ind. 427 373, V. Fulton, 31 Ark. :>71» 595, Ballard r. Burgett, 40 N. Y 314 191, Bailey. Mossiey, 13S. C. 439 Ballin i). Dillave, 37 N. Y. 35 Baltimore v. (iill, 31 Md. 562 Banfield v. Rumsey, 4 N. Y. S. C. 761 463 305 303 838 264 822 344 400 761 604 640 624 687 686 174 354 182 643 827 Bank v. Herbert, 53 Cal. 375 422 463 674 790 753 518 289 217 302 727 114 411 437 320 794 376 677 172 823 611 2.30 741 467 586 473 250 753 756 374 604 194 644 379 174 377 396 TABLE OF CASES CITED. XXIX Bank v. Kitehing. 7 Bosw. 664 609 Banks v. Joluisun, 4 J. J. Marsh. tj4y 578 Bannister v. Grassy Fork D. Ass'n, 52 Inil. 178 0»5 Baptist Ch. V. Presb. Ch., 18 B. Mon. 035 311, ;}12, 321 Barclay v. Quicksilver Mining Co., 6 Lans. 25 751 V. Yeonians, 27 Wis. 082 _ ^ 349 Barden r. .Supervisors, o3 Wis. 45 753 Banistown, &c. K. li. v. Metcalf, 4 Mete. 199 219, 440, 443 Barlivte v. Huglies, 33 Barb. 320 810, 831 Bariiis f. Nasli, 1 Ves. & B. 551 304, 428 Barker v. Bradley, 42 N. Y. 316 107, 169 V. Knickerbocker Life Ins. Co. 24 Wis. 630 824 V. Walters, 8 Beav. 92 444 Barlow v. Burns, 40 Cal. 351 639 V. Meyers, 6 N. Y. Sup. Ct. 183 167, 169, 199, 202 V. Scott, 12 Iowa, G3 357 t'. Scott, 24 N. Y. 40 87, 102, 502, 624 041 324 293 020 822 523 610 Earner '•. Moreliead. 22 Ind. 354 Barnes v. Bcloit, 19 Wis. 93 V. Martin, 15 Wis. 240 V. Quigley, 59 N. Y. 265 617, V. Racine, 4 Wis. 454 V. Smith, 16 Ahb. Pr. 420 V. Stephens, 02 Ind. 226 Barnett v. Leonard, 66 Ind. 422 250, 293, 604 Barnstead v. Empire Min. Co., 5 Cal. 299 104, 130 Barr v. Deniston, 19 X. H. 170 174 V. Hack, 46 Iowa, 308 700 V. Sliaw, 10 Hun, 580 519 Barrall c. De Groot, 5 Duer, 382 788 Barrett v. Goodshaw, 12 Bush, 592 093 V. Tewksbury, 18 Cal. 334 291, 295 r. Watts, 13 S. C. 441 499 Barron v. Frink, 30 Cal. 486 578 Barrv r. Equitable Life Ins. Soc, 59 N."Y. .587 180, 190 Bartges v. O'Neil, 13 Ohio St. 72 255, 291 Barthgate v. Haskin, 59 N. Y. 5-33 798, 836 Barthol r. Blakin, 34 Iowa, 452 162, 602 Bartlett v. Drew, 57 N. Y. 587 319, 407 V. Judd, 21 N. Y. 200 116, 120 V. Pickersgill, 1 Cox, 15 301 Barton r. Speis, 5 Hun, 60 363, 450, 522 Bass V. Comstoek, 38 N. Y. 21 491 Bassett v. Crowell, 3 Robt. 72 353 V. Lederer, 1 Hun, 274 741 I'. Warner, 23 Wis. 673 408, 492, 501 Bastable i-. Poole, 1 C. M. & R. 410 172 Bate V. Graham, 11 N. Y. 237 606, 643 V. Sheets, 50 Ind. 329 714 Bateman v. Bargerison, 6 Hare, 496 314 Bates r. Cobb, 5 Bosw. 29 593 V. Rosekrans, 37 N. Y. 409 787, 788, 790 V. Ruddick, 2 Iowa, 423 392, 399 Batterman v. Peirce, 3 Hill, 171 768, 769 Bauer v. Wagner, 30 Mo. 385 750, Baum, Succession of, 11 Rob. 314 V. Grigsby, 21 Cal. 172 V. Mullen, 47 N. Y. 577 Bayley v. Best, 1 Russ. & My. 659 Baynard v. Woolley, 20 Beav. 583 Beach v. Bradley, 8 Paige, 146 Beals V. Cobb, 51 Me. 348 Bean v. Kiah, 6 N. Y. Sup. Ct. 464 Beard v. Dedolph, 29 Wis. 136 Bearss v. Montgomery, 46 Ind. 544 Beaty v. Swarthout, 32 Barb. 293 717, Beandette v. Fond du Lac, 40 Wis. 44 Beaumont v. Miller, Stant. Ky. Code, 42 288, Beaver Dam v. Fringe, 17 Wis. 398 Bebee v. Hutchinson, 17 B. Mon. 496 Becker v. Boon, 61 N. Y. 317 657, I'. Crow, 7 Bush, 198 V. Sandusky City Bk., 1 Minn. 311 V. Sweetzer, 15 Minn. 427 669, Beckett r. Lawrence, 7 Abb. Pr. 403 Beckwith V. Dargels, 18 Iowa, 303 339, r. Peirce, 22 La. An. 67 ?\ Union Bank, 9 N. Y. 211 188, Bedell v. Haves, 21 La. An. 643 Beers v. Shannon, 73 N. Y. 292 r. WaterVjury, 8 Bosw. 396 Beeson r. Howard, 44 Ind. 413 668, Belknap v. Mclntyre, 2 Abb. Pr. 366 V. Sealey, 14 N. Y. 143 Bell V. Brown, 22 Cal. 671 Belleau i\ Thompson, 33 Cal. 495 Bellinger v. Craigue, 31 Barb. 534 Belloc r. Rogers, 9 Cal. 123 393, Bellows V. Rosenthal, 31 Ind. 116 Bendell v. Hettrich, 45 How. Pr. 198 Benedict v. Benedict, 85 N. Y. 625 Benjamin v. Loughborough, 81 Ark. 210 Benkard v. Babcock, 2 Robt. 175 Bennett v. McGrade, 15 Minn. 132 V. McGuire, 5 Lans. 183 V. Preston, 17 Ind. 291 249, r. Titherinston, 6 Bush, 192 106, Bensley v. McMillan, 49 Iowa, 517 Bentley r. Bustard, 16 B. Mon. 643 V. Jones, 7 Oreg. 108 Bentz I'. Thurber, 1 N. Y. Sup. Ct. 645 Bercich v. Mayre, 9 Nev. 312 Berkshire v. Shultz, 25 Ind. 523 249, 255 2 oC Berly v. Taylor, 5 Hill, 577 ' 63l! Bernheimer v. Wallis, 11 Hun, 16 Berry v. Brett, Bosw. 627 V. Carter, 19 Kan. 135 Besser i\ Hawthorne, 3 Oreg. 129 Bethel v. Wilson, 1 Dev. & Bat. Eq. 610 761 473 187 375 305 313 411 437 289 288 224 708, 751 293 880 219 281 732 642 118 688 737 424 473 198, 199 473 251 788 749 793, 796 621 760 771 777, 843 395 379 272 644 413 823 164 405 644 119 642 732 587 357 194 251, 307 6.32 810 840 489 400 310 XXX TABLE OF CASES CITED. Bettinprer r. Bell, > Tnd. 445 436 Botts c. Baclie, 14 Abu. Pr. 279 593 Bevicr r. l)illiiij;hain, 18 Wis. 629 340 Bt-yer r. Heiil, 18 Kan. 86 629 Bid.lle c. Hamsav. 52 Mo. 153 (3U4 Bi.lwfll r. Astor Milt. Ins. Co.. 16 N.Y. 2G3 83, 80, UO, 100, 500, 520 r. Madi.'^on, 10 Minn. 13 838 Bigclow r. Btisli, (1 I'aiKe, 343 389, 393 r. Gove, 7 Cal. 1.33 542 Biggs V. Hitigs, 50 Wis. 443 009 V. Penn. 4 Hare. 409 414 V. Williams, 00 N. V. 427 223 Bill V. Cureton, 2 .M. & K. 503 318 Billings r. Drew, 52 Cal. 505 760, 701 Bingham v. Kimball, 17 Ind. 396 714, 749 Birbeck v. StaflTord, 14 Abb. Pr. 285 184 Bird r. Maver, 8 Wis. 302 557, 559 r. McCov. 22 Iowa, 549 790, 799 Birdsall r. Birdsall, 52 Wis. 208 039 Bishop i: Davis, 9 Hun, 342 018, 620 I'. Edminston, 10 Abb. Pr. 466 268 V. Griffith. 4 Col. 08 610, 614 Bitter r. Katiiman. 61 N. Y. 512 289 Bitting c. Thaxton, 72 N. C. 541 831, 834 Black r. Duncan. 60 Ind. 522 340 r. Klnier. 54 Ind. 544 822 Bl.nckburn r. vSweet. 3S Wis. 578 344 Blair r. Hamilton, 48 Ind. 32 ISO V. Shelby Co. Agr. Soc, 28 Ind. 175 443 Blake r. Buffalo Creek K. R., 50 N. Y. 485 113 V. Conim'rs. 18 Kan. 266 642 V. Jones, 3 Anst. 651 302 r. Van Tilborg. 21 Wis. 672 501, 520 Blakelev v. I^ Due, 22 Minn. 476 250 Blanchard r. Klv, 21 Wend. .342 709 Bland r. Winter, 1 S. & S. 246 431, 435 Blanke v. Brvant, 55 N. Y. 649 376 BlanUenship V. Rogers, 10 Ind. 333 799. 840 Blank man r. Vallejo, 15 Cal. 638 678 Blasdel V. Williams, 9 Nev. 161 602, 604, 005 Bleakslev r. Bomff. 71 Ind. 93 777 Bledsoe 'v. Irvin. 35 Ind. 293 354 V. Rader. 30 Ind. 354 771 V. Simms. 53 Mo. .305 350, 725, 753 Bletben .-. Blake. 44 Cal. 117 752 Blew r. Hoover. 30 Ind. 450 840 Bliss V. Cottle, 32 Bnrb. 322 677 1-. Lawrence, 58 N. Y. 442 184 Blizzard r. Appleeate, 01 Ind. 368 727 Blood V. Fairbanks, 48 Cal. 171 104, 431, 629 Bloomer r. Stnrcres, 58 N. Y. 108 899, 4.37 Blossom V. Barrett, 37 N. Y. 434 492 Blount r. Burrow, 3 Rro. C. C. 90 314 Bliim r. Robinson. 24 ChI. 127 118 Blydenburgh v. Thavcr, 3 Keyes, 293 189, 198 Boardmnn v. Bockwith. 18 Iowa, 292 218 V. Griffin. 52 Ind. 101 010 Boardman v. L. S., &c. R. R., 84 N. Y. 157 Boaz V. Tate, 43 Ind. 00 Bobb V. Woodward, 42 Md. 482 Bockes c. Lansing, 74 N. Y. 437 Bodine v. Killeen, 53 N. Y. 93 Boehme v. Sunie, 5 Neb. 80 Bogardus v. Parker, 7 How. Pr. 499 731, 744 89,98 104 376 586 305 430, 810 Bogartr. O'Regan. 1 E. D. Smith, 590 216 Bogert r. Culick, 05 Barb. 322 377 Boliall V. Diller, 41 Cal. 5.32 586 Boit r. Sims, 60 N. Y. 162 830 Bolcn V. Crosby, 49 N. Y. 183 104 r. San Gorgonio Co., 55 Cal. 464 611 Bond !•. Corbet, 2 Minn. 248 609, 709 V. Kenosha, 17 Wis. 284 174 V. Smith, N. Y. Sup. Ct. 239 180, 358, 304 V. Wagner. 28 Ind. 462 740, 759 Bondurant r. Bladen, 19 Ind. 160 362, 371, 456, 685, 723 Bonesteel v. Bonesteel. 28 Wis. 245 77. 79 Bonham r. Craig, 84 N. C. 224 642 Bonnell v. Allen, 53 Ind. 130 644 V. Jacobs, 30 Wis. 59 676, 822, 824 Bonney !'• Reardin. 6 Busli, 34 493 Booher r. Goldsborough, 44 Ind. 490 609 Bool V. Watson, 13 Ind. 387 840 Boomer r. Koon. Hun, 045 717, 723, 748 Boone Co. v. Keck. 31 Ark. 387 404 Boorman v. Wis.. &c. Co., 30 Wis. 207 434 Boos r. Gomber, 24 Wis. 499 295 Booth r. Farmers' & Mechanics' Bk. 1 N. Y. S. C. 45 534, 539, 691 , 635, 636 r. Sherwood, 12 Minn. 426 761 Borah v. Archers, 7 Dana, 176 304 Borden v. Gilbert. 13 Wis. 670 602 Bort r. Yaw. 46 Iowa, 323 257 Bosley v. Mattingley, 14 B. Mon. 89, 119 Boston Mills v. Eull, Abb. Pr. n. s. 319 780 Botev V. Griswold. 2 Mont. 447 577 Botkin V. Earl. 6 Wis. 393 287 Botsford V. Burr. 2 Johns. Ch. 409 301 Bottovf r. Wise, 53 Ind. 32 634 Botts 1-. Patton, 10 B. Mon. 452 411 Bougher r. Scobey, 16 Ind. 151 492 Bouijhton V. Smith. 26 Barb. 635 187 Bouslog V. Garrett. 39 Ind. .338 594, 668 Bouton r. Citv of Brooklyn, 15 Barb. 375 ■ ■ 245 r. Orr, 51 Iowa. 473 250 Bnwdoin r. Coleman, 3 Abb. Pr. 431 164 Bowen v. Aubrey, 22 Cal. Hm 83. 93, 557 r. Enunerson. 3 Oreg. 452 557, 502, 595 Bowers c. Keesecher, 9 Iowa, 422 339, 408, 501 Bowles r. Sacramento Turnp. Co., 6 Cal. 224 642 Bowman r. Sheldon. 5 Sandf 657 609 V. Van Kuren. 2.1 Wis. 203 628 Boyee v. Bradv. (U Ind. 432 604 V. Brown, "7 Barb. 80 665 TABLE OF CASES CITED. XXXI Boyd r. Blaisdell, 15 Ind 73 i\ Foot, 5 Bosw. 110 V. Hovt, 5 Paige, 65 406. V. Schlesiiiirer, 59 N. Y. 301 Bover r. Clark.^i Neb. 161 Boyle I-. Robbing. 71 N. C. 1:50 155, Bnii'e t: Burr. (37 N. Y. 237 Bradburne r. Botfield, 14 M. & W. 559 Bradbury v. Cronise, 46 Cal. 287 675, Bradford v. Tonev. 30 Ark. 703 Bradliurst v. Townsend. 11 Hun, 104 Bradley v. Aldricii, 40 X. Y. 504 1U4, V. Ansrell, 3 N. Y. 475 r. r;irkhurst, 20 Kan. 462 Bradsliaw v. Outram, 13 Ves. 2^34 Brady v. Ball, 14 Ind. 317 V. Brennan, 25 Minn. 210 632, 815, V. Cliandler. 31 ilo. 28 V. Weeks, 3 Barb. 157 Braitliwaite c. Britain, 1 Kern. 219 Brake r. Corning. 19 Mo. 125 Braker i-. Devereau.x. 8 Paige, 513 Branch v. Booker, 3 Munf. 43 V. Wi.. Pyser, 81 Cal. 383 Caldwell v. Anger, 4 Minn. 217 V. Bruggerman, 4 Minn. 270 669, Caleb i: Morgan, 83 N. C. 211 Calhoun i>. Hallen, 25 Hun, 165 California, Bank of v. Collins, 6 Ilun, 209 Cal. Steam Nav. Co. r. Wright, 8 Cal. 585 Calkins v. Smith, 48 N. Y. 614 Callaghan r. McMahan, 33 Mo. Ill Callanan v. Edwards, 82 N. Y. 483 Calverley ;•. Phelj), Mad. 229 313, Calvin v. Duncan, 12 Bush, 101 V. Woollen, 60 Ind. 404 481, Calvo V. Davies, 73 N. Y. 211 Camp ('. McGillicuddy, 10 Iowa, 201 V. Pulver, 5 Barb. 01 Campbell v. Fox, 11 Iowa, 318 V. Galbreath, 12 Bush, 459 V. Genet, 2 Hilt. 290 V. Mackay, 1 Myl. & Cr. 603 V. Perkins, 8 N. Y. 430 V. Routt, 42 Ind. 410 762, 786, V. Stakes, 2 Wend. 137 Canefox v. Anderson, 22 Mo. 847 Cannon v. McManns, 17 Mo. 345 Capell V. Powell, 17 C. B. n. s. 743 Capuro V. Builders' Ins. Co., 39 Cal. 123 Carman v. Plass, 28 N. Y. 286 462 Carmien v. Whitaker, 36 Ind. 509 Carney v. La Crosse, &c. R. R., 15 Wis. 503 340, Carpenter i-. Brenham,50 Cal. 549 V. Leonard, 5 Minn. 156 782, V. Manhattan, &c. Co., 22 Hun, 49 8;31, V. Mann, 17 Wis. 155 V. Miles, 17 B. Mon. 598 160, V. O'Dougherty, 50 N. Y. 660 V. Stilwell, 3 Abb. Pr. 459 V. Tatro, 30 Wis. 297 152, Carpenticr r. Williamson, 25 Cal. 161 Carr i'. Collins, 27 Ind. 806 V. Waldron, 44 Mo. .393 340. Carrere v. Spofford, 16 Abb. Pr. n. 8. 47 Carrieo v. Tomlinson, 17 Mo. 499 Carrillo v. McPliillii)s, 65 Cal. 130 Carroll r. Paul, 16 Mo. 226 593, Carswell v. Niville, 12 How. Pr. 446 Carter r. Mills, 80 Mo. 432 317, 407, V. Sanders, 2 Drew. 248 V. Zeublin, 68 Ind. 436 113 728 580 349 009 96, 600 686 358 287 751 709 822 088 186 761 258 619 189 402 686 608 604 468 636 840 288 790 628 634 788 634 163 759 874 781 4.56, 457 344 434 644 790 810 832 173 163 876 033 288 393 464 436 271 81 228 596 467 408 318 641 TABLE OF CASES CITED. XXXlU Carver v. Shelley. 17 Kan. 472 L'ary v. Allen, 3y Wis. 481 r. Wheeler, 14 Wis. 281 401, 493, Casad v. Ilohlridire, 50 Iml. 529 727, ?'. Hughes, 27 Inch 141 Case V. Carroll, 35 N. Y. 385 249, Cashman v. Wood, Hun, 520 222, Cassiday v. McDaniel, 8 B. Mon. 519 Cassidy i-. Caton, 47 Iowa, 22 Cassin v. Delaney, 38 N. Y. 178 335, Castle V. Houston, 19 Kan. 417 Castner r. Sumner, 2 Minn. 44 Caswell V. West, 3 N. Y. Sup. Ct. 383 Catlin V. Gunter, 1 Duer, 253 V. Pedriok, 17 Wis. 88 V. Wheeler, 49 Wis. 507 Caulfield v. Sanders, 17 Cal. 569 Cavalli v. Allen, 57 N. Y. 508 714, 117, 804, Cave V. Crapto, 53 Cal. 125 Cavender v. Smith, 8 Iowa, 360 Cecil V. Smitli, 81 N. C. 285 Central Bank r. Knowlton, 12 Wis. 624 Centre Turnpike Co. v. Smith, 12 Vt. 217 Certwall v. Hovt, 6 Hun, 575 Chace r. Peck, 21 N. Y. 581 Chad wick v. Maden, 9 Hare, 188 31 7, Ciiamballe v. McKenzie, 31 Ark. 155 Chamberlain v. Burlington, 19 Iowa, 395 V. Plainsville, &c. R. R., 15 Ohio St. 225 V. Williamson, 2 M. & S. 408 180 Chambers v. Goldwin, 9 Ves. 269 I'. Lewis, 2 Hilt. 591 631, 632, V. Nicholson, 30 Ind. 349 390, Chamboret v. Cagney, 35 N. Y. Sup. Ct. 474 Champion r. Brown, 6 Johns. Ch. 402 Chance t\ Indianapolis, &c. Road Co., 32 Ind. 472 r. Isaacs, 5 Paige, 592 Chancellor v. Morecraft, 11 Beav. 262 Chapman r. Callahan, 66 Mo. 299 V. Hunt, 1 McCarter, 149 V. Pluramer, 36 Wis. 262 180, 836, V. West, 17 N. Y. 125 Chappell V. Rees, 1 De G. M. & G. 393 Charboneau v. Henni, 24 Wis. 250 Charles u. Haskins, 11 Iowa, 329 153 Charlestown School District v. Hay, 74 Ind. 127 Ciiarlotte, Bank of v. Britton, 66 N. C. 365 Charlton v. Tardy, 28 Ind. 452 Chase r. Abbott, 20 Iowa, 154 836 587 502 748 204 321 282 301, 411 651 374 608 161 99, 180 747 639 282 678 783, 807 743 351 V. Long, 44 Ind. 427 804, 379, 399, 727 636 282 116 ,422 613, 632 174 663 ,181 436 829 400 290 421 727 200 314, 414 434 307 198, 837 422 437 371 ,164 608 748 842 391. 401 751 Chase v. VanderbiU, 02 N. Y. 307 Ciiatfit-ld V. Frost. 3 N. Y. S. C. 357 Ciiautauqua v. Gifford, 8 Hun, 152 Chautauqua Co. Bank v. White, 6 N. Y. 236 Cheely v. Wells, 33 Mo. 106 493, Cheeseman v. Wiggins, 1 N. Y. Sup. Ct. 595 Cheltenham Fire-brick Co. v. Cook, 44 Mo. 29 Cheshire Iron Works v. Gay, 3 Gray, 531 Chester v. I^ickerson, 52 Barb. 349 Chesterson v. Munson, 27 Minn. 498 Chicago, &c. R. R. v. N. W. Union P. Co., 38 Iowa, 377 557, 581, 612, 685, Chilcote V. Conley, 36 Ohio St. 545 Childers ?;. Vomer, 12 S. C. 1 Childs V. Hyde, 10 Iowa, 294 Chiles V. Drake, 2 Mete. 146 Chime r. Trustees, 32 Ohio St. 236 Chipman v. Montgomery, 63 N. Y. 221 302, Cholmondeley v. Clinton, 2 Jac. & W. 134 808, 318, Christy r. Dana, 42 Cal. 174 Chunot r. Larson, 43 Wis. 536 Church V. Smith, 39 Wis. 492 306, Churchill v. Churchill, 9 How. Pr. 552 V. Trapp, 3 Abb. Pr. 306 Cicero, &c. Co. v. Craighead, 28 Ind. 274 Cincinnati, &c. R. R. v. Chester, 57 Ind. 297 V. Washburn, 25 Ind. 259 Citizen's Bk. v. Closson, 29 Ohio St. 78 Claflin V. Jaroslanski, 64 Barb. 468 V. Ostrom, 54 N. Y. 581 167, V. Reese, 54 Iowa, 544 ;;. Taussig, 7 Hun, 223 034, V. Van Wagoner, 32 Mo. 252 Clague V. Hodgson, 16 Minn. 329 Clapp V. Cunningham, 50 Iowa, 307 V. Phelps, 19 La. An. 461 V. Preston, 15 Wis. 543 362, V. Wright, 21 Hun, 240 Clarissy v. Mut. Fire Dept., 7 Abb. Pr. (n. s.) 352 Clark r. Bates, 1 Dacota, 42 140, 556, V. Boyer, 32 Ohio St. 299 374, V. Cable, 21 Mo. 223 270, V. Clark, 5 Hun, 340 V. Fenskv, 3 Kan. 389 V. Finnel'l, 16 B. Mon. 337 689, V. Han. & St. Jo. R. R.,36 Mo. 202 V. Harwood, 8 How. Pr. 470 V. Huber, 25 Cal. 593 118, V. Langworthy, 12 Wis. 441 V. Lineberger, 44 Ind. 223 490, r. Lockwood, 21 Cal. 222 113, V. Miller, 4 Wend. 628 V. Reyburn, 8 Wall. 318 416 612 219 501 525 310 215 319 363 608 683, 717 371 600 357 493 85 317 437 690 613 394, 434 640 454 727 540 644 760 729 ,169 692 652 287 609 651 473 455 836 220 562 745 274 732 593 840 491, 535 609 751 625 576 128 228 402 XXXIV TABLE OF CASES CITED. Clark V. Slanton, 24 Minn. 232 463 V. Story, 29 Karb. 295 839 I'. Supervisors, 27 111. 305 174 Clarkson v. Carter, 3 Cow. 85 228 V. De I'eyster, 3 I'aige, 320 319 Claussen v. La Franz, 4 Greene, 224 77 Clay V. Edgerton, 19 Oiiio St. 549 584, 600, 602, 605 Clav Co. V. Simonsen, 1 Dacota, 403 556, 562, 570, 580 Ciayes v. Hooker, 4 Ilun, 231 013, 732 Clavton V. School Di.strict, 20 Kans. 206 727 Ciegrr V. Rowland, L. U. 3 Eq. 368 410 Clegiiorn v. Postlewaite, 43 111. 428 174 Clemens v. Clemens, 37 N. Y. 59 426, 428 Clemons i". Elder, 9 Iowa, 272 414, 433 Cleveland v. Barrows, 59 Barb. 364 535 V. Comstock, 22 La. An. 597 473 Clifford r. Dam, 81 N. Y. 52 745 Clift V. Northrup, 6 Lans. 330 839 Clinc V. Ciine, 3 Orecr. 355 557, 559 Clink r. Tliurston, 47 Cal. 21 682, 751 Clinton v. Eddy, 1 Lans. 61 780, 826 Cloon V. City Ins. Co., 1 Handy, 32 354 Clougii V. Thomas, 53 Ind. 24 371 Coaklcy v. Chamberlain, 8 Abb. Pr. N. s. 37 343, 352 Coates V. Day, 9 Mo. 315 Coats V. McKee, 22 Ind. 223 Cobb V. Depue, 22 La. An. 244 V. Dows, Barb. 230 V. III. Cent. II. R., 38 Iowa, 601 405 379 473 538 490, 493 V. Smith, 38 Wis. 21 364, 367 Coburn v. Smart, 53 Cal. 742 476 Cock r. Evans, 9 Yerg. 287 421 Cockburn i\ Thompson, 16 Ves. 328 310, 443, 447, 530 Codd ;-. Rathbone, 19 N. Y. 37 752 Cody V. Bomis, 40 Wis. 666 613 Coey. Beckwitii, 10 Abb. Pr. 296 443 V. Lindley, 32 Iowa, 437 848 Coffin v. McLean, 80 N. Y. 560 789 Coffman v. Putnam Co., 24 Ind. 509 174 Coghiil r. Marks, 29 Cal. 673 475 Cogswell V. Murpliy, 46 Iowa, 44 345, 365, 522 Cohen V. Cont. L. Ins. Co., 69 N. Y. 300 577, 580 Cole V. Reynolds, 18 N. Y. 74 77, 83, 84. 245, 275, 371 V. Turner. 6 Mod. 149 230 Colegrove v. N. Y., obc. R. R., 20 N. Y. 492 864 Coles V. Forrest, 10 Beav. 552 402 V. Soulsby, 21 Cal. 47 693, 752 Colgrove r. Koonce, 76 N. C. 363 349 Collart V. Fisk, 38 Wis. 238 693 Colk-tt .'. Hover, 1 Coll. 227 317 »-. Wf.llaston, 3 Hro. (). C. 228 411 Collier I-. Erwin, 3 Mont. 142 641, 828 Collins V. Butler, 14 Cal. 223 840 V. Cownn, 52 Wig. (i:M 499 V. Grosccloee, 40 Ind. 414 840 Collins V. Rogers, 63 Mo. 515 Colorado Cent. R. R. v. MoUaudcn, 4 Col. 154 Colton V. Hanchett, 13 III. 615 Colton Co. r. Raynor, 57 Cal. 588 Coltzhauser v. Simon, 47 Wis. 103 Colwell i;. N. Y. & E. R. R., 9 How. Pr. 311 Combes V. Chandler. 33 Ohio St. 178 Combs V. Watson, 32 Ohio St. 228 Comer V. Knowles, 17 Kan. 436 Comins v. Supervisors, 3 N. Y. Sup. Ct. 296 Commercial Bank v. Colt, 15 Barb. 506 Commissioners v. Blair, 76 N. C. 136 V. Lafayette, &c. li. R., 50 Ind. 85 V. Lineberger, 3 Mont. 31 V. Markle, 46 Ind. 96 V. McClintock, 51 Ind. 325 V. Slatter, 52 Ind. 171 V. Swain, 5 Kan. 376 355, V. Templeton, 51 Ind. 266 V. Verbaug, 63 Ind. 107 Commonwealth v. Cook, 8 Bush, 220 V. Todd, 9 Bush, 708 Compton V. Davidson, 31 Ind. 62 Comstock v. Hier, 73 N. Y. 269 Conant v. Frary, 49 Ind. 530 Conanghty v. Nichols, 42 N. Y. 83 619, 621, Conaway v. Carpenter, 58 Ind. 477 Cone i>. Niagara Fire Ins. Co., 60 N. Y. 619 m, 100, 168, Conger v. Parker, 29 Ind. 380 111, Conklin r. Bishop, 3 Duer, 646 Conlin v. Cantrell, 64 N. Y. 217 Conn. Fire Ins. Co. v. Erie R. R., 73 N. Y. 399 Conn. Life Ins. Co. v. McCormick, 45 Cal. 580 Conn. Mut. Ins. Co. i'. Cross, 18 Wis. 109 Conner v. Winton, 7 Ind. 523 814, Connor v. Board of Education, 10 Minn. 439 V. Paul, 12 Bush, 144 Conro V. Port Henry Iron Co., 12 Barb. 27 Conross v. Meir, 2 E. D. Smith, 314 Considerant r. Brisbane, 22 N. Y. 389 Converse v. Symmes, 10 Mass. 377 Conwav v. Smith, 13 Wis. 125 r. Wharton, 13 Minn. 158 Conyngham v. Smith, 16 Iowa, 471 162, 170, Cook V. Finch, 19 Minn. 407 V. Ilorwitz, 10 Hun, 580 V. Jenkins, 79 N. Y. 575 804, V. Klink, 8 Cal. .347 V. Lovell, 11 Iowa, 81 115 685 174 652 657 538 190 753 586 174 189 629 325, 846 219 174 174 288 361 174 595 676, 600 792 169 6.32 467 140, 624 804 169 668 468 377 173 731 502 824. 828 500 222 319 642 212, 214 230 838 760 164, 837 760 622 822 295 840 TABLE OF CASES CITED. XXXV Cook V. Putnam Co., 70 Mo. 668 580 V. Smith, 54 Iowa, G;J(> 675 V. Soule, 5G N. Y. 4^0 81^3 V. Wiirdeiis, 5 Hun, 293 2(35 CookinglKiin v. Lasher, 2 Keyes, 454 357 Cooley r. Brown, 30 Iowa, 470 314 V. Howe Mac. Co., 53 N. Y. 620 167 Coolidge V. Parris, 8 Ohio St. 594 373, 381 Cooper V. French, 52 Iowa, 531 677, 609 Cope V. Parry, 2 Jac. & W. 538 301, 317 Copis V. Mid.lleton, 2 INIad. 410 405 Coppard v. Allen, 2 De G. J. & S. 173 411, 414 Corby v. Weddle, 57 Mo. 452 723 Corcoran v. Doll, 32 Cal. 82 287 Cord r. Hirscli, 17 Wis. 403 340, 389, 392 Corey v. Rice, 4 Lans. 141 278 Corn. Ex. Ins. Co. v. Babcock, 42 N. Y. 613 376 Cornell v. Dakin, 38 N. Y. 253 752 V. Radway, 22 Wis. 260 409 Cornin? v. Cornino;, Q N. Y. 97 660 V. Smith, 6 N."Y. 82 402 Cornish v. Gest, 2 Cox, 27 304 Corpenny i\ Sedalia, 57 Mo. 88 602, 605 Corwin v. Ward, 35 Cal. 195 840 Coryell v. Cain, 16 Cal. 567 557 Cosley V. Wickliffe, 7 B. Mon. 120 819, 385 Coster V. Brown, 23 Cal. 142 475 V. Mayor, 43 N. Y. 399 167, 169 V. N. Y. & E. R. R., 3 Abb. Pr. 332 267, 538 Cottle V. Cole, 20 Iowa, 481 153, 159, 161, 170, 470, 837 Cottrell V. Cramer, 40 Wis. 555 657 Coursen v. Hamlin, 2 Duer, 513 802 Covert V. Hughes, 8 Hun, 305 377 Covini^ton, &c. R. R. v. Bowler, 9 Bush, 408 301, 313 Cowin V. Toole, 31 Iowa, 513 557, 580 Cowles V. Cowles, 9 How. Pr. 361 796 V. W^arner, 22 Minn. 449 614 Cox V. Bird, 65 Ind. 277 250 V. West. Pac. R. R., 47 Cal. 89 492, 493 Coy V. Downie, 14 Fla. 544 842 Craft V. Commissioners, 5 Kan. 518 174 Craig v. Heis, 30 Ohio St. 550 822 Cramer v. Benton, 00 Barb. 216 111 V. Morton, 2 Molloy, 108 314 Craneh v. Gridley, 6 Hill, 250 185 Crane v. Hardman, 4 E. D. Smith, 448 745 V. Morse, 49 Wis. 368 676 V. Turner, 67 N. Y. 437 170 Crary v. Goodman, 12 N. Y. 266 83, 86, 116 Crawford v. Adams, Stanton's Code (Ky.), 91 760 V. Furlong, 21 Kan. 698 587 V. Gunn, 35 Iowa, 543 263 V. Ncal, 56 Cal. 321 223, 587 Crawfordsville i-. Barr, 65 Ind. 367 434 Creager v. Walker, 7 Bnsh, 1 106, 117 Creecy v. Pearce, 69 N. C. 67 401 Creed v. Hartman, 29 N. Y. 591 303 Creighton r. Newton, 5 Neb. 100 727 Crews c. Lackland, 67 Mo. 619 344 Crocker u. Craig, 46 Me. 327 818 Croft V. Waterton, 13 Sim. 658 302 Crogan v. Spence, 53 Cal. 15 403 Cropsey v. Sweeney, 27 Barb. 310 77, 588 Crosby v. Davis, 9 Iowa, 98 422 Crosier v. McLaughlin, 1 Nev. 348 83, 133 Cross V. Ilulett. 53 Mo. 397 266 V. Truesdale, 28 Ind. 44 167 Croumger ?'. Parze, 48 Wis. 229 822 Crow V. Vance, 4 Iowa, 434 392 Cruger v. McLaury, 41 N. Y. 219 263, 264 Cudlipp V. Whipple, 4 Duer, 610 593, 603 Cuff V. Dorland, 55 Barb. 481 102 Cullen V. Queensbury, 1 Bro, C C. 101 309, 441 Cumings v. Morris, 3 Bosw. 560 791 Cummins v. Barkalow, 4 Keyes, 514 218 Curamings v. Long, 25 Minn. 337 614 V. Morris, 25 N. Y. 625 162, 245, 802 V. Vorce, 3 Hill, 282 636 Cunningham v. Pell, 5 Paige, 007 314, 412 Curd V. Dodds, 6 Bush (Ky.), 681 373. 374 V. Lackland, 43 Mo. 139 89, 98, 504 Curran i-. Curran, 40 Ind. 473 594, 668, 840 Currie v. Cowles, 6 Bosw. 453 780, 842 l: Fowler, 5 J. J. Marsh. 145 578 Curry v. Keyser, 30 Ind. 214 731 V. Roundtree, 51 Cal. 184 344 Curtis V. Barnes, 30 Barb. 225 838 V. Curtis, 3 Louis. 513 473 V. Del., &c. R. R., 74 N. Y. 116 289, 295 V. Herrick, 14 Cal. 117 223 V. Mohr, 18 Wis. 615 161 V. Moore. 15 Wis. 134 641 V. Richards, 9 Cal. 33 690, 692, 693 V. Sprague, 51 Cal. 239 158 Cushman v. Henry, 75 N. Y. 103 377 V. Jewell, 7 Hun, 525 632 Cutts V. Guild, 57 N. Y. 229 190, 192 V. Thodev, 13 Sim. 206 317 Cythe V. Fountain, 51 Barb. 186 117 D. Daby v. Ericsson, 45 N. Y. 786 271 Da honey v. Hall, 20 Ind. 264 422 Dail V. Harper, 83 N. C. 4 657 Dailev v. Houston, 58 Mo. 361 250, 293, 374, 523,- 524, 613 Daily v. Litchfield, 10 Mich. 29 420 Daking v. Whimi)er, 26 Beav. 568 316 Dale V. Masters, Stanton's Code (Ky.), 97 824,826 XXXVl TABLE OF CASES CITED. Dale V. Thomas, 67 Ind. 570 Dalrymple r. Hillenbrand, 02 N. Y. 5 V. Hunt, 5 Hun, HI 727, Daly V. Burchell, 13 Abb. Pr. n. s. V. Nat. Life Ins. Co., 04 Ind. 1 II. Troetz, 20 Minn. 411 Danibnian v. Sc-iiulting, 4 Hun, 50 V. White. 48 Cal. 439 Daniels v. Clark, 38 Iowa, 556 Danjean r. Blaoketcr, 13 La. An. 595 Dann r. Gibson, 9 iS'eb. 513 Darbv v. Callashan, 16 N. Y. 71 Dare'r. Allen, 1 Green, Ch. 288 Darlinfifton ?;. Efley, 13 Iowa, 177 396, Dart V. McQuilty, 6 Ind. 391 Darwent v. Walton, 2 Atk. 510 Davanay v. Eggenlioff, 43 Cal. 395 Davenport v. Murray, 68 Mo. 198 V. Short, 17 Minn. 24 V. Tiirpin, 43 Cal. 597 393, David V. Frowd, 1 Mvl. & K. 200 Davidson r. Elms, 07 N. C. 228 V. Remington, 12 How. Pr. 310 V. Smith, 20 Iowa, 466 Davies v. Davies, 11 Eng. L. & Eq. R. 199 V. Williams, 1 Sim. 5 Davis V. Bechstein, 69 N. Y. 440 190, 0. C. & W. W. R. R., 46 Iowa, 389 V. Davis, 26 Cal. 23 V. Eppingcr, 18 Cal. 878 V. Hoppoc'k, Duer, 254 V. Lainbertson, 56 Barb. 480 96 r. Mason, 3 Oreg. 154 V. Mayor, 2 Duer, 603 V. Milburn, 3 Iowa, 163 V. Morris, 30 N. Y. 509 88, 102, V. Neligli, 7 Neb. 84 V. Notware, 13 Nev. 421 V. Payne. 45 Iowa, 194 V. Reynolds. 5 Hun, 051 V. Shuler, 14 Fla. 438 u. Stover, 58 N. Y. 473 793, r. Sutton, 23 Minn. 307 V. Touhnin, 77 X. Y. 280 777, V. Van Buren, 72 N. Y. 587 V. Warfield, 38 Ind. 401 Davison v. Associates, 71 N. Y. 333 Davoue f. Fanning, 4 Jolnis. Ch. 199 Dawley v. Brown, 9 Hun, 461 Dawson v. Graham, 48 Iowa, 378 Day r. Haniniond, 57 N. Y. 479 V. Patterson, 18 Imi. 114 V. Pnoi, 52 N. Y. 416 V. Vaiiette, 25 Ind. 42 639, r. Wamsley, 3:', Ind. 145 683, 085, DayhufT i'. Dayhuffs Adm'r, 27 Ind. 158 Dayton v. Wilkes, 5 Bosw. 655 604 748 748 394 845 748 052 580 409 473 041 289 314 392, 403 405 310 712, 742 499 753 725 447 218 780, 791 296 310 314 250 609 751 475 723 97, 503 596 463 840 106 198 7'.»8 651 158 685 840 198 789 358 723 106 310 740 044 7^.2 107 824 755 723 840 467 Dayton Ins. Co. v. Kelly, 24 Ohio St. 345 643 Dean v. Chamherlin, 6 Duer, 091 273 V. English, 18 B. Mon. 135 164, 280, 490 V. Leonard, 9 Minn. 190 676 V. Yates, 22 Ohio St. 388 617, 622 De Baun v. Van Wagoner, 56 Mo. 347 378 Debolt V. Carter, 31 Ind. 355 251, 255, 257 Decker v. Gaylord, 8 Hun, 110 456 V. Mathews, 12 N. Y. 313 609 V. Trilling, 24 Wis. 610 452, 455 Deery v. McClintock, 31 Wis. 196 103 De Forest v. Holuni, 38 Wis. 516 394, 396 De Golls V. Ward, 3 P. Wms. 311 315 De Graw v. Elmore, 50 N. Y. 1 557, 501, 614, 617, 622 De Houghton v. Money, L. R. 2 Ch. App. 104 316 De Jolinson v. Sei)ull)eda, 5 Cal. 149 265 Delabere v. Norwood, 3 Swanst. 144 400 De la Guerra v. New hall, 55 Cal. 21 588, De la Mar v. Hurd, 4 Col. 442 Delancy v. Murpliy, 24 Hun, 503 Delaplaine v. Lewis, 19 Wis. 476 591 643 403 389, 395 014 V. Turnley, 45 Wis. 31 De la Vergne v. Evertson, 1 Paige, l&l 321 De Leyer v. Micliaels, 5 Abb. Pr. 203 788, 807 Denning i-. Kemp, 4 Sandf. 147 769 Dennis v. Belt, 30 Cal. 247 824, 826 Denten v. Logan, 3 Mete. (Ky.) 434 749 Denton v. Nanny, 8 Barb. 024 388 De Puy V. Strong. 37 N. Y. 372 250, 203 Derby r. Gallup, 5 xMinn. 119 760 De Bidder v. Schermerliorn, 10 Barb. 038 362, 456 Derr v. Stubbs, 83 N. C. 539 843 Desmond i'. Brown. 33 Iowa, 13 739 Despard i-. Walbridge, 15 N. Y. 374 119 De Uprey v. De Uprey, 27 Cal. 329 380, 430 473 414 180 158 169 828 111 2(55 Devall V. Boatner, 2 La. An. 271 Devaynes r. Robinson, 24 Beav. 86 Devlin v. Mayor, 03 N. Y. 8 152 Devol r. Barnes, 7 Hun, 342 V. Mcintosh, 23 Ind. 529 107 Dcvries v. Warren, 82 N. C. 356 Dewey )•. Hong, 15 Barb. 365 !'. Lambicr, 7 Cal. 347 V. Moyer, 9 Hun, 473 301, 320, 407. 413 De W^itt V. Chandler, 11 Abb. Pr. 459 221 r. Hayes, 2 Cal. 403 77, 79, 83 Dezengremel v. Dezengremel, 24 Hun, 457 753 Dias V. Bouchaud, 10 Paige, 445 411 V. Merle, 4 Paige, 259 403, 437 Dice I'. Morris, 32 Ind. 283 846 TABLE OF CASES CITED. XXXVll Dickens v. N. Y. C. K. R., 13 How. Pr. 228 526 Dickinson v. Vanderpoel, 6 N. Y. Sup. Ct. 1(J8 250 Dickson v. Cole, 34 Wis. 621 77, 88, 103, 642 Diddell v. Diddell, 3 Abb. Pr. 167 806 Dietrich v. Koch, 35 Wis. 618 783 Dillave r. Niles, 4 Abb. Pr. 253 79] V. Parks, 31 Barb. 132 250, 751 Dillon V. Bates, 3!) Mo. 292 410, 414 Dimmock v. Bi.xby, 20 Pick. 368 528 Diniiuiy v. Fay, 38 Barb. 18 182 Dist. Townp. V. Directors, 52 Iowa, 287 604 V. Dist. Townp. 44 Iowa, 512 844, 345 Dix V. Akers, 30 Ind. 431 218 V. Briggs, 9 Paige, 595 406 Dixey v. Pollock, 8 Cal. 570 475 Dean V. Holly, 26 Mo. 186 502 Dob V. Halsey, 16 Johns. 34 230 Dobson I'. Duckpond, &c. Ass'n, 42 Ind. 312 480 V. Pearce, 12 N. Y. 156 83, 110, 112, 115, 120 Dodd V. Denney, 6 Oreg. 156 613 Dodge V. Dunham, 41 Ind. 186 668 Dole V. Burceigh, 1 Dacota, 227 642, 676 Dotph V. Rice, 21 Wis. 590 790 Donaliue v. Prosser, 10 Iowa, 276 8i0 Donald v. Bather, 16 Beav. 26 302 Donellan v. Hardy, 57 Ind. 303 608 Donnan v. Intelligencer Co., 70 Mo. 168 250 Donnell v. Walsh, 33 N. Y. 43 250, 267 Donovan v. Dunning, 69 Mo. 436 499 Doody V. Higgins, 9 Hare, Ap. 32 314 Doolittle V. Greene, 32 Iowa, 123 600, 079 V. Supervisors, 18 N. Y. 155 173 Doremus i-. Sclden, 19 Johns. 213 229 Dorsett v. Adams, 50 Ind. 129 587 Dorsev v. Hall, 7 Neb. 460 604 f." Reese, 14 B. Mon. 157 119, 840 Dorwin v. Potter, 5 Denio, 306 709 Doughty V. Atlantic R. R., 78 N. C. 22 538 Douglas V. Bishop, 27 Iowa, 214 390, 395 V. First Nat. B'k, 17 Minn. 35 838 I'. Haberstro, 25 Hun, 262 121, 733 V. Horsfall, 2 S. & S. 184 313 Douglass V. Placervilie, 18 Cal. 643 174 Dounce v. Dow, 57 N. Y. 16 823, 824 Dousman v. Wis., &c. Min. Co., 40 Wis. 418 325, 443 Douthitt V. Smith, 69 Ind. 463 810 Downer v. Smith, 24 Cal. 114 118 Downey v. Dillon, 52 Ind. 442 587 Downing r. Gibson, 53 Iowa, 517 198 Downs i". McCombs, 16 Ind. 211 728 Dows V. Ciiicago, 11 Wall. 108 174 V. Kidder, 84 N. Y. 121 463 Doyle V. Franklin, 48 Cal. 537 642 V. Phoenix Ins. Co., 44 Cal. 264 578, 601, 607 Dragoo v. Levi, 2 Duv. 520 493, 509, Drais v. Hogan, 50 Cal. 121 Drake v. Cockrol't, 4 E. D. Smith, 34 V. Phillips, 40 111. 388 Draper v. Lord Clarendon, 2 Vern. 518 V. Stouvenel, 35 N. Y. 507 r. Van Horn, 15 Ind. 155 Drew V. Person, 22 Wis. 651 V. Harman, 5 Price, 319 Drury v. Clark, 16 How. Pr. 424 389, Duanesburgh v. Jenkins, 46 Barb. 294 Dubbers v. Joux, 51 Cal. 153 Dubois V. Hermance, 56 N. Y. 673 731, Dubroca r. Dubroca, 3 La. An. 331 Duck V. Abbott, 24 Ind. 349 130 Dudley v. Scranton, 57 N. Y. 424 Duffy V. Duncan, 35 N. Y. 187 V. O'Donovan, 46 N. Y. 227 Duncan v. Berhn, 5 Robt- 457 V. Stanton, 30 Barb. 533 V. Whedbee, 4 Col. 143 V. Wickliffe, 4 Scam. 452 Duncorabe v. Hansley, 3 P. Wms. 333 Dunderdale v. Grymes, 16 How. Pr. 195 Dunham v. Bower, 77 N. Y. 76 V. Gillis, 8 Mass. 460 Dunlap V. Snvder, 17 Barb. 561 Dunn V. Hannibal, &c. R. R., 68 Mo. 268 V. Remington, 9 Neb. 82 556, Dunning v. Leavitt, 85 N. Y. 30 V. Ocean Nat. Bk., 61 N. Y. 497 V. Rumbaugh, 36 Iowa, 566 674 r. Thomas, 11 How. Pr. 281 Du Pont V. Davis, 35 Wis. 634 106, Durant v. Gardner, 10 Abb. Pr. 445 Durton v. Kelly's Adm'r, 22 Ind. 183 Duress v. Ilorneffer, 15 Wis. 195 Durgin V. Ireland, 14 N. Y. 322 155, Durham v. Bischof, 47 Ind. 211 371, V. Hall, 67 Ind. 123 Durkee v. City Ba i, 13 Wis. 216 Durland v. Piteairn, 51 Ind. 426 Durnford v. Weaver, 84 N. Y. 445 Dussol V. Bruguire, 50 Cal. 456 Dutcher v. Dutcher, 39 Wis. 651 727, 740, 750, 753, Dutil V. Pacheco, 21 Cal. 438 Duvall V. Tinsley, 54 Mo. 93 502, D'WoIf r. D'Wolf. 4 R. I. 450 Dyer v. Barstow, 5 Cal. 652 Dyson v. Hornby, 7 De G. M. & G. 1 V. Morris, 1 Hare, 413 314, V. Ream, 9 Iowa, 51 714, ,520 604 810, 828 174 399 289 432 105 436 388, ,895 220 463 723, 749 473 ,418 823 792 117 356 791 222 421 896 249 718 228 738 250 562 169, 199 173, 282 ,723 640 113, 803 526 840 288 161 424 276 639, 641 587 613 358 219, 760 475 504 311 541 315 410 744 xxxvm TABLE OF CASES CITED. E. Eagle V. Swayze, 2 Daly, 140 375 Eagle Fire Ins. Co. v. Lent, 6 Paige, G37 402 Earle r. Bull, 15 Cal. 421 823 V. Hale, 31 Ark. 47.] 121, 845 V. Patterson, 67 Ind. 503 604 Eastman v. Linn, 20 Minn. 433 78G, 804, 833, 834 V. St. Anthony's Falls W. P. Co., 12 Minn. 137 753 V. Turmaii, 24 Cal. 379 502 East River Bank v. Rogers, 7 Bosw. 493 789 Eaton V. Alger, 47 N. Y. 345 157, 159, 454 V. Burns, 31 Ind. 390 358 V. Smith, 19 Wis. 537 127 V. Talhnage, 22 Wis. 526 842 Eccleslon v. Clipshaiu, 1 Wm. Saund. 153 226, 228, 331 Eddie v. Parke, 31 Mo. 513 410 Ederlin i'. Judge, 36 Mo. 350 493, 539 Edo;erlv v. Farmers' Ins. Co., 43 Iowa', 587 608 Edgerton v. Pace, 20 N. Y. 281 809, 828 I'. Smith, 3 Duer, 614 609 Edwards ;•. Bohannon, 2 Dana, 98 307 V. Campbell, 23 Barb. 423 156 V. Edwards, 24 Ohio St. 402 746 Egberts v. Woods, 3 Paige, 517 310 Egdell V. Haywood, 5 Atk. 357 319 Ehle V. Ilaller, 6 Bosw. 661 539 V. Purdy, 6 Wend. 629 330 Elam V. Garrard, 25 Ga. 557 321 Elder v. Spinks, 53 Cal. 293 580, 714 Eldredge v. Putnam, 46 Wis. 205 276, 301, 309 Eldridge v. Adams, 54 Barb. 417 135, 137 r. Mather, 2 N. Y. 127 723 •Elfrank v. Seiler, 54 Mo. 134 604 Ellicott V. Mosicr, 7 N. Y. 201 350 Ellithorpe r. Buck, 17 Gliio St. 72 88 Ells I'. Pacific R. U., 55 Mo. 278 679 Elmore v. Hill, 46 Wis. 618 657 Elson V. (VDowd, 40 Ind. 300 751 Elwell V. Skiddv, 8 Ilim, 73 822 Emeric v. IVmiiman, 20 Cal. 119 128, 223 Emerson r. Fox, 3 Louis. 178 473 Emory >: Pi-ase, 20 N. Y. 62 86, 104, 130 Emigrant Bank v. Goldman, 75 N. Y. 127 400 Emily v. Harding, 63 Ir.d. 102 727, 746 Emnierson's Adm'r v. Herriford, 8 Bush, 229 838 Fmmert ?•. De Long, 12 Kan. 07 414 E'lmions r. Kiger, 2."! Ind. 483 77 Emslie i'. Leavenworth, 20 Kan. 562 588, 691, 595 Kiiderhv, E:r pnrip, 2 B. & C. 389 795 KndersV, Beck, 18 Iowa, 86 293 Enciandcr v. Hocers, 41 Cal. 420 586 Englc'breclit v. Rickert, 14 Minn. 140 806 Englis V. Furniss, 4 E. D. Smith, 687 371 280 788 217 110 790 473 344 751 480 307, Ennis v. Harmony Fire Ins. Co., 3 Bosw. 516 Equitable Life Ass. Soc. v. Cayler, 75 N. Y. 511 Erickson i-. Compton, 6 How. Pr. 471 Erie Railway r Ramsey, 45 X. Y. 037 Ernst V. Kunkle, 5 Oliio St. 520 Erwin r. Lowry, 1 La. An. 276 V. Scotten, 40 Ind. 389 Estabrook v. Messersmith, 18 Wis. 545 "55, 256, 270 V. Omaha Hotel Co., 5 Neb. 76 586 Estrada v. Murphy, 19 Cal. 272 118 Ktcheborne v. Auzerais, 45 Cal. 121 Etchinson Ditching Ass'n v. Busen- bach, 39 Ind. 362 Etheridge v. Vernoy, 71 N. C 184 396, 401, 402 Evans v. Clermont, &c. Co., 51 Ind. 160 480 V. Job, 8 Nev. 322 577 r. Harris, 19 Barb. 410 593, 596 V. Neale, 69 Ind. 148 600 V. Southern Turnp. Co., 18 Ind. 101 728 r. Tripp, 35 Iowa, 371 434 V. Williams, 00 Barb. 340 710, 723 Evansville v. Thayer, 59 Ind. 324 604 Evansville, City of v. Evans, 37 Ind. 229 714, 747 Evens v. Hall, 1 Handy, 434 838, 840 Everett v. Lockwood, 8 Hun, 356 ■ 741 Eversole v. Moore, 3 Bush, 49 840 Ewen V. Chicago, &c. R. R., 38 Wis. 64 Ewing V. Patterson, 35 Ind. 326 845, Excelsior Draining Co. v. Brown, 38 Ind. 384 Excelsior Petroleum Co. v. Lacey, 03 N. Y. 422 Exchange Bank v. Rice, 107 Mass. 729 848 480 251 Exline v. Lowry, 40 Iowa, 556 Eyre v. Cook, 10 Iowa, 586 F. Fabricotti v. Launitz, 3 Sandf. 743 Faesi v. Goetz, 16 Wis. 231 Fagan v. Barnes, 14 Fla. 53 419, 464, Fairchild v. Amsbaugli, 22 Cal. 572 Fairfield v. Adams, 16 Pick. 381 Faithful r. Hunt, 3 Anst. 751 Fankboner i'. Fankboner, 20 Ind. 62 Fargo V. Ames, 45 Iowa, 494 Farlow v. Scott, 24 N. Y. 40 Farman v. Chamberlain, 74 Ind. 82 Farmer v. Calvert, 44 Ind. 209 723, V. Curtis, 2 Sim. AW) 3u8, Farmers' Bank v. Bayliss, 41 Mo. 274 169 777 840 609 602 525, 534 712, 742 172 402 641, 840 675 86 641 748 437 491, 521 TABLE OF CASES CITED. XXXIX Farmers' Bank v. Sherman, 33 N. Y. 69 OOo, 742 r. Tlie Board, &c., 75 N. C. 45 6'.)2 Farmers' National Bank v. Fletclier, 4t Iowa, 252 190 Faniliaiii v. Campbell, 10 Paige, 598 31!) Farrar v. Triplet, 7 Neb. 237 604 Farrell r. Ileiincsv, 21 Wis. 632 643 V. Smitli, 2 Ball & B. 337 410, 447 Farron v. Sbcrwood, 17 N. Y. 227 557, 587, 593, 596 Farwell v. Jackson, 28 Cal. 105 502 Fasnaclit v. Stehn, 53 Barb. 650 609 Faubie v. Davis, 48 Iowa, 402 614 Fay V. Cobb, 51 Cal. 313 057 V. Davidson. V.] Minn. 523 363 V. Grimsteed, 10 Barb. 321 747 Fear v. Jones, 6 Iowa, 169 172 FeariniT v. Bali, 6 Louis. 685 473 Feelev'r. Shirley, 43 Cal. 369 678 Fek-irr. Beaudry, 40 Cal. 439 690 Fell V. Brown, 2 Bro. C. C. 278 308, 396, 437 Fellows V. Fellows, 4 Cow. 682 406, 436 V. Webb, 43 Iowa, 133 642 Fells V. Vestvali, 2 Keyes, 152 594, 596 Fenton v. Hnglies, 7 Ves. 288 530 Fenwick v. Bulman, L. R. 9 Eq. 165 316 Ferguson i'. Ferguson, 1 Hayes & J. 300 314 V. Ilo-an, 25 Minn. 135 586 V. Ramsey, 41 Ind. 511 685, 723 V. V. & T. R. R., 13 Nev. 184 600 Ferreira v. \)e Pew, 4 Abb. Pr. 131 788, 791 Ferrer v. Barrett, 4 Jones Eq. 455 431 , 435 Fcrrin v. Myrick, 41 N. Y. 315 526, 540 Ferris v. Dickerson, 47 Ind. 382 306 Fetberly v. Burke. 54 N. Y. 646 749 Field V. Halm, 65 Mo. 417 795 V. Harrison, 20 La. An. 411 473 V. Hurst, 9 S. C. 277 492 V. Mathison, 3 Rob. 38 473 I'. Mayor, 6 N. Y. 179 184, 206 Fields V. Bland, 81 N. Y. 239 140, 632 Filbey v. Carrier, 44 Wis. 469 282 Finch V. Finch, 2 Ves. Sen. 492 316 Finley v. Haves, 81 N. C. 368 489 V. Quirk, 9 Minn. 194 708, 749 Finnegan v. Carraiier, 47 N. Y. 493 351 Finnell v. Nesbitt, 16 B. Mon. 354 840 Finney v. Brant, 19 Mo. 42 277 First Div. St. Paul R. R. v. Rice, 25 Minn. 278 • 644 First Nat. Bank v. Church, 3 N. Y. S. C. 10 660 V. Haire, 36 Iowa, 443 377 t;. Hogan, 47 Mo. 472 679 V. Indianapolis, &,<: Co., 45 Ind. 5 368 V. Kidd, 20 Minn. 234 792 Fish V. Uerkev, 10 Minn. 199 520 V. Howlaiid, 1 Paige, 20 301, 313, 441, 443 V. Redington, 31 Cal. 185 678 V. Hall, 41 N. Y. 416 250, 264, 265 Fisher v. Hamilton, 48 Ind. 239 723 V. Hepburn, 48 N. Y. 41 350, 425 V. Hubbell, 65 Barb. 74 281, 303, 370 V. Moulick, 13 Wis. 321 804 Fisk V. Tank, 12 Wis. 276 503, 612, 728 Fitch V. Cesser, 54 Mo. 267 281 V. Rathbun, 61 N. Y. 579 152, 289 Fithian v. Monks, 43 Mo 502 89, 98 Fitzsimmons i-. City Fire Ins. Co., 18 Wis. 234 668 Flack V. Dawson, 69 N. C. 42 370, 670 Flanders r. Cottrell, 36 Wis. 564 613, 629 V. McClanahan, 24 Iowa, 486 424 V. McVickar, 7 Wis. 372 602, 059 Flanagan r. Tinen, 53 Barb. 587 374 Fleming v. McDonald, 50 Ind. 278 364 V. Mershon, 3(i Iowa, 413 324 V. People, 27 N. Y. 329 732 V. Shields, 21 La. An. 118 473 Fletcher v. Holmes, 25 Ind. 458 389, 402, 848 V. Holmes, 40 Me. 364 318 Flint V. Spurr, 17 B. Mon. 499 444 Flynn v. Bailey, 50 Barb. 73 521 Foerster v. Kirkpatrick, 2 Minn. 210 595 Foland v. Johnson, 16 Abb. Pr. 235 737, rrOQ Foley V. Addenbroke, 4 Q. B. 197 228 Follett V. Heath, 15 Wis. 601 111 Folsom V. Carli, 6 Minn. 420 841 Fond du Lac Co. v. Haskins, 51 Wis. 135 894 Foot V. Bronson, 4 Lans. 47 S22 Foote I'. Latlirop, 53 Barb. 183 381 Ford r. Bronaugh, 11 B. Mon. 14 228 V. Ind. Dist. of Stuart, 46 Iowa, 294 325, 371 V. Mattice, 14 How. Pr. 91 640 Fordyce v. Hathorn, 57 Mo. 120 759 Forepaugii v. Appold, 17 B. Jlon. 632 463 Forkner v. Hart, Stanton's Code, 60 493, 539 Forsyth v. Edmiston, 2 Abb. Pr. 430 367 Fort Stanwi.x Bank v. Leggett, 51 N. Y. 552 301,-320, 340, 343 Fort Wayne, &c. E. R. v. McDonald, 48 Ind. 241 594 Fosgate v. Herkimer Mfg. Co., 12 N.Y. 580 350, 351 Foster r. Brown, 65 Ind. 234 218 V. Conger, 61 Barb. 145 376 V. Elliott, 33 Iowa, 216 264, 281, 600 V. Hickox, 38 Wis. 408 401, 484 V. Hooper, 2 Mass. 572 333 V. Tovvnshend, 12 Abb. Pr. N. s. 469 405 V. Watson, 16 B. Mon. 377 102, 106 Foulkes r. Davies, L. R 7 Eq. 42 318 Foulks r. Rliodes, 12 Nev. 225 836 Fowler r. Frisbie, 37 Cal. 34 272, 275 );. Houston, 1 Nev. 469 357 V. Seaman, 40 N. Y. 592 376 Fox V. Barker, 14 Ind. 309 840 V. Duff, 1 Daly, 196 289 xl TABLE OF CASES CITED. Fox V. Kerper, 51 Ind. 148 l\>x r. Mover, o4 N. Y. 125 301, Foy r. llaiigliton, 8o X. (.". 467 Fraker c. Callum, 24 Kan. 679 Fraler v. Sears Un. W. Co., 12 Cal. 555 France f. Krugcr, 42 Iowa, 143 Francis i\ Edwards, 77 N. C. 271 I-. Franci-s 18 B. Mon. 57 Franco r. Franco, 3 Ves. 77 Frank r. Dunning, 38 Wis. 270 r. Kessier, 30 Ind. 8 Frankbouer v. Frankbouer, 20 Ind. 62 Franklin v. Kelley, 2 Neb. 79 Frans r. Youiijr, 24 Iowa, 375 255, Fraser ;;. Ciiarleston, 13 S. C. 533 Frayser v. Kerscliner, 73 Ind. 183 Frazer r. Frazcr, 70 Ind. 411 Frear v. Br^an, 12 Ind. 343 Freaking v. Kolland, 53 N. Y. 422 Freeman i'. Carpenter, 17 Wis. 126 I'. Engleman Tran. Co., 36 Wis. 571 V. Lorrillard, 61 X. Y. 612 792, V. Sprague. 82 N. C. 346 Freer v. Denton, 61 N. Y. 492 223 320 732 822 535 371 777 690 313 587 526 731 725 270 404 604 755 464 376 740, 759 401, 618. Freethy v. Freetby. 42 Barb. 641 Freitag r. Burke, 45 Ind. 38 French v. Gifford, 30 Iowa, 148 321, V. Salle, Stanton's Code (Ky.) 96 V. Salter. 17 Hun, 546 509, V. Turner, 15 Ind. 59 371, 390, Freser v. Charleston, 11 S. C. 486 Frick V. Wlnte, 57 N. Y. 103 Friddle v. Crane, 68 Ind. 583 Fried r. N. Y. Cent. K. R., 25 How. Pr. 285 Friermutb v. Frierniutb, 46 Cal. 42 Friscb v. Caler, 21 Cal. 71 712. 714, Frisbee v. Langworiliy, 11 Wis. 375 Fritz r. Fritz. 23 Ind. 388 493, Frost V. Hatlord, 40 Cal. 165 Front V Hardin. 50 Ind. 165 140, Fry V. Bennett, 5 Sandf. 54 555, V. Evans, 8 Wend. 530 206, Frybarger v. Cokefair, 17 Ind. 404 Fugate V. Pierce. 49 Mo. 441 Fulliam V. McCarthy, 1 II. L. Cas. 703 Fulkerson v. Davenport, 70 Mo. 541 Fuller V. Benjamin, 23 Sle. 255 V. Fuller, 5 Hun. 595 257, V. Fullerton, 14 Barb. 59 FuUerlon v. .McCunly, 4 Laos. 1-32 Fulton F. Ins. Co. v. Baldwin, 37 N.Y. 648 182, Fultz 1-. Fox. 9 B. Mon (Ivy.) 499 v. WycolT, 25 Ind. 321 Furnian v. Van Sise, 56 N. Y. 4.35 732 795 726 533, 632 290 665 414, 417 823 541 398 726 198 587 182 596 742 743, 744 537 690 617 642 793 714, 749 761 318 4:n 310 268 217 420 251 3S0 659 282 G. Gabe v. McGinnis, 68 Ind. 5.38 609 Gaines v. Union Ins. Co., 28 Ohio St. 418 613 V. Walker, 16 Ind. 361 390, 399 Galbreath v. Gray, 20 Ind. 290 350 Gale V. Battin, 16 Minn. 148 407 Gallagher v. Xichols,60N. Y.438 152, 164 Galliniore r. Animernian, .30 Ind. 323 731 Galloway v. Jenkins, 63 N. C. 147 174 V. Stewart, 49 Ind. 156 Gallup V. Albany K. K., 7 Lans. 471 Gander v. State, 50 Ind. 539 Ganes v. Page, 15 La. An. 108 Gannon v. Dougherty, 41 Cal. 661 Gardinier v. Kellog, 14 Wis. 605 Gardner v. Clark, 21 N. Y. 399 740, V. Ogden, 22 N. Y: 327 V. Walker, 20 How. Pr. 405 Garner v. Cook, 30 Ind. 331 V. McCullough, 48 Mo. 318 614 828 608 473 837 218 759 523 364 169 577, 583, 606 414 169 376 77, 83 228 643 V. Wright, 24 How. Pr. 144 Garnsey r. Kogers, 47 N. Y. 233 Gan-ctson r. Seaman, 54 N. Y. 652 Garrett v. Gault, 13 B. Mon. 378 V. Hundley, 4 B. & C. 664 i: Trotter, 65 N. C. 430 Garrison r.Clark, II Ind. 369 160, 685, 751 V. Howe, 17 N. Y. 458 277 Garver v. Kent, 70 Ind. 428 218, 219 Garvey v. Jarvis, 54 Barb. 179 805 Gas Co. V. San Francisco, 9 Cal. 453 691 Gaskell v. Gaskell, 6 Sim. 643 805 Gasquet v. Johnson, 1 La. B. 431 472, 478 Gaston r. McLeran, 3 Oreg. 389 V. Owen, 43 Wis. 103 Gates V. Boomer, 17 Wis. 455 665, 732 614 318, 320, 501 96 433 V. Kief, 7 Cal. 124 V. Lane, 44 Cal. 392 V. Salmon, 46 Cal. 361 430, 557, 580, 642 Gazynski r. Colburn, 11 Cush. 10 Gte r. Lewis, 20 Ind. 149 Gen. Mut. Ins. Co. r. Benson, 5 Duer, 168 Genesee Bank v. Patchin Bank, 13 N. Y. 309 Gentz v. Martin, 75 Ind. 228 Geoghegan v. Ditto, 2 Mete. (Ky.) 443 Gertler v. Lin.scott, 26 .Minn. 82 519, 538 Getty r. Binsse, 49 N. Y. 385 358 r. Devlin, 70 N. Y. 504 .309, 431 V. Hudson Kiver II. II., 6 How Pr. -269 Gharkv, Est. of, 57 Cal. 274 Ghirardelli r. Bourland, 32 Cal. 585 Gibson r. Foster, 2 La. An. 503 r. Gibson, 41 Wis. 419 293, 644 Giffert V. West, 33 Wis. 617 612, 613, 824 Gilbert v. Allen, 57 Ind. 524 340 2.30 287 312 bob 604 840 83 577 524 473 TABLE OF CASES CITED. xli Gilbert v. Rounds, 14 How. Pr. 46 738 V. Snge, 5 Laiis. ^87 751 Gililersleeve v. Burrows, 24 Ohio St. 204 198 Giles V. Austin, G2 N. Y. 486 110, 117, 848 r. Lyon,4 N. Y. (500 8:3 Gill V. Jolinston, 1 Mete. (Ky.) 649 164, 371 Gillam v. Sigraan, 20 Cal. 637 340, 345, 350 Gillespie v. Alexander, 3 Russ. 130 447 V. Fort \Vayne, &c. R. R., 12 lud 398 V. Torrance. 25 N. Y. 306 Gillett V. Hill, 32 Iowa, 220 V. Treganza, 13 Wis. 472 Gillilan v. Norton, 6 Robt. 540 Gilman v. Filrnore, 7 Oreg. 374 Gilmer v. Hill, 22 La. Ann. 465 Gilmore v. Fox, 10 Kan. 509 t". Norton, 10 Kan. 491 Gilpin V. Wilson, 53 Ind. 443 Gimbel v. Pii,Miero, 62 Mo. 240 Giraud v. Beach, 3 E. D. Smith, 337 100 789, 843 753 89, 127, 625, 646 361 644 174 324 324 788, 810 250 255, 379 614 824 Glasgow V. Hobbs, 52 Ind. 239 Gleadell u. Thomson, 56 N. Y. 194 Gleason v. Moen, 2 Duer, 639 780, 791, 816 Glen V. Hope Mat. Life Ins. Co., 56 N. Y. 379 167, 169 Glen, &c. Co. v. Hall, 61 N. Y. 226 835 Glen & Hall Man. Co. v. Hall, 61 N. Y. 226 804, 805 Glenn v. Waddell, 23 Oliio St. 605 322, 324 Gock V. Keneda, 29 Barb. 120 250, 268 Goddard v. Fulton, 21 Cal. 430 714 Godfrey v. Chadwell, 2 Vern. 601 399 V. Townsend, 8 How. Pr. 398 468 Goebel V. Hough, 26 Minn. 252 828 Goeltii r. White, 35 Barl). 76 593 Goff V. Su[)ervisors, 43 Wis. 55 643 Goings V. White, 33 Ind. 125 584 Goldberg r. Utley, 60 N. Y. 427 493 Goldsmid v. Stonehewer, 9 Hare App. 38 402 Goldsmith v. Boersch, 28 Iowa, 351 616 Goller V. Fett, 30 Cal. 481 265 Goncelier v. Foret, 4 Minn. 13 321 Good V. Blew it, 19 Ves. 336 309. 444, 449 Goodall V. Mopley, 45 Ind. 355 306, 644 Goodell V. Bloomer, 41 Wis. 436 693 Gooding v. McAllister, 9 How. Pr. 123 500 Goodnight v. Goar, 30 Ind. 418 244, 255, 256, 276 Goodrich v. Milwaukee, 24 Wis. 422 218 Goodwin v. Mass. Mut. Life Ins. Co., 73 N. Y. 480 748 Gordon v. Bruner, 49 Mo. 570 631, 632, 815, 824, 826, 838 V. Horsfall, 5 Moore, 393 308 V. Swift, 46 Ind. 208 799 Gorham u. Gorham, 3 Barb. Ch. 32 224 Gorman v. Russell, 14 Cal. 531 441, 443 Gossard v. Ferguson, 54 Ind. 519 804 (iosnian v. Crugor, 7 Hun, 60 377 Goss V. Commissioners, 4 Col. 468 110, 617 Gossom V. Badgett, 6 Bush, 97 355 Gott r. Powell, 41 Mo. 416 89, 98, 504 Gottler V. Babcock, 7 Abb. Pr. 392 832 Gould V. Glass, 19 Barb. 179 219 V. Gould, 8 Cow. 168 228, 229, 290 V. Hayes, 19 Ala. 438 314, 321 V. Williams, 9 How. Pr. 51 609 Goulet I'. Asseler, 22 N. Y. 225 135 Gower v. Howe, 20 Ind. 396 371, 390, 398 Grace v. Terrington, 1 Coll. 3 310 Gradwohl v. Harris, 29 Cal. 150 155, 161, 475 Graham v. Camman, 5 Duer, 697 603 V. Chicago, &c. R. R., 49 Wis. 532 629 V. Harrower, 18 How. Pr. 144 744 V. Henderson, 35 Ind. 195 344 V. Ringo, 67 Mo. 324 363, 456 V. Tilford, Stanton's Code, 98 840 Grain v. Aldrich, 38 Cal. 514 77, 86, 87, 154, 1B6 Grannis v. Hooker, 29 Wis. 65 593, 594 Grant v. McCarty, 38 Iowa, 468 490, 493, 518, 537 Grash v. Safer, 6 Iowa, 301 761 Grattan v. Wiggins, 23 Cal. 16 223 Graves v. Spier, 58 Barb. 349 101, 102, 179, 183, 186, 586 V. Waite, 59 N. Y. 156 140, 618 Gray v. Coan, 23 Iowa, 344 600 V. Dougherty, 25 Cal. 266 96, 519 V. Durland, 50 Barb. 100 282 V. Fretwell, 9 Wis. 186 743 V. Garrison, 9 Cal. 325 163 V. Palmer, 9 Cal. 616 418 V. Payne, 43 Mo. 203 89, 98, 504 V. Schenck, 4 N. Y. 460 405 V. Tyler, 40 Wis. 579 349 Greason v. Keteltas, 17 N. Y. 491 624 Great West., &c. Co. v. JEtaa. Ins. Co., 40 Wis. 373 257, 276, 339 Great West. Ins. Co. v. Pierce, 1 Wyom. 45 790, 798 Green i-. Di.xon, 9 Wis. 532 389, 399 V. Gilbert, 21 Wis. 395 593, 596 V. Green, 69 N. C. 294 259, 341 V. Lake Superior, &c. Co., 46 Cal. 408 660 V. Louthain, 49 Ind. 139 608 V. Lyndes, 12 Wis. 404 297 V. Marble, 37 Iowa, 95 154, 162 V. Palmer, 15 Cal. 411 556 V. Putnam, 1 Barb. 500 428 V. Richardson, 4 Col. 584 169 V. Soutliain, 49 Ind. 139 587 V. Walkill Nat'l B'k, 7 Hun, 63 320, 404 Greenbaum v. Turrill, 57 Cal. 285 657 Greene v. Breck, 10 Abb. Pr. 42 442 V. Niagara Ins. Co., 6 Hun, 128 152, 158 xlii TABLE OF CASES CITED. Greene v. Nunncmaokcr, 36 Wis. 50 364, 367, 522 V. Republic Fire Ins. Co., 84 N. Y. 572 173 r. Sisson, 2 Curtis, 171 321 V. Warwick, t;4 N. Y. 220 lUO Greenfield v. Mass. JMut. L. Ins. Co., 47 N. Y. 430 210, 6G8, 700 Greentree r. Itoscnstock, 61 N. Y. 583 140, 618 Greenwood v. Atkinson, 5 Sim. 419 385 Greer v. Greer, 24 Kan. 10 83(5 Gregory v. Gregory, 60 X. Y. 522 428 V. Hish, 20 Ind. 527 430 Gregsley I: Barr, 14 Bush, 330 643 Greither v. Alexander, 15 Iowa, 470 502 Gress v. Evans, 1 Dacota, 387 85 Gridler v. Farmers' & 1). Bank, 12 Bush. 333 693 Gridley *;. Gridley, 24 N. Y. 130 533 Griliin v. Cox, 30 Ind. 242 840 V. Grittin, 23 How. Pr. 183 806 V. Moore, 52 Ind. 295 822 Griffith V. Vanheythuysen, 9 Hare, 85 318 Grigffs V. Staplee, 2 De G. & S. 572 818 Griines v. Diizan, 32 Ind. 361 804, 833 Griunell v. Buchanan, 1 Daly, 538 83, 84 V. Sclmiidt, 2 Sandf. 706 218, 245 Groat V. Fiiillips, 6 N. Y. Sup. Ct. 42 355 Grocers', &c. Co. v. Newby, 58 Ind. 570 830 Grocers' Bk. (;. Clark, 48 Barb. 20 181, 183 V. O'Korke, 6 Ilun, 18 692, 729 Grossman v. Lauber, 29 Ind. 618 840 Grosvenor v. Allen, 9 Paige, 74 319 V. Atlantic Fire Ins. Co., 1 Bosw. 469 748 Grove v. Schweitzer, 36 Wis. 5.53 843 Groves v. Marks, 32 Ind. 319 128 V. Tallnian, 8 Kev. 178 557, 577 Guedici v. Hoots, 42 Cal. 462 116 Guernsey v. Am. Ins. Co., 17 Minn. 104 96, 106, 500 Guilford v. Cooley, 58 N. Y. 116 219 Guiod V. Guiod, 14 Cal. 506 295 Gulick V. Conncly. 42 Ind. 134 668 Gunn ;;. Madigan, 28 Wis. 158 582, 600 Gurney v. Atlantic, &.C. II. R., 58 N. Y. 358 824 Gutcliess V. Whiting, 46 Barb. 139 619 Guttman v. Scannell, 7 Cal. 455 288 Gwaltney v. Cannon, 31 Ind. 227 589, 594 Gwalhney v. Chatham, 21 lluu, 576 843 H. Ilaliiclit V. Pemberton, 4 Sandf. 057 247, 442 Ilablitgel v. Latham, 35 Iowa, 550 119, 121 Ilaclictt V. Bank of California, 57 Cal. 335 617 Ilackett V. Carter, .38 Wis. 394 522, V. Schad, 3 Bush, 353 Ilackett, Tutorship of, 4 Rob. 290 llackley v. Draper, 60 N. Y. 88 (-'. Ogniun, 10 How. Pr. 44 Haddix r. Wilson, 3 Bush, 523 Hade v. McVay, 31 Ohio St. 231 Iladley i\ Brown, 2 Kans. 416 Hagadorn v. Raux, 72 N. Y. 583 Ilagan v. Burch, 8 Iowa, 309 f. Walker, 14 IIow. U. S. 37 Haggard v. Hay, 13 B. Mon. 175 V. Wallen.'o Neb. 271 Ilaggerson r. Phillips, 37 Wis. 364 Ilaggin V. Clarke, 51 Cal. 112 Haight V. Badgeley, 15 Barb. 499 V. Green, 19 Cal. 113 V. Ilayt, 19 N. Y. 464 179, 183, Hain v. N. W. Gravel R. Co., 41 Ind. 196 Haines v. Beach, 3 Johns. Ch. 459 V. HoUister, 64 N. Y. 1 320, 404, Haire v. Baker, 5 N. Y. 357 114, 120, Hale V. Omaha Nat. Bank, 49 N. Y. 626 602, 641, V. Walker, 31 Iowa, 344 Haley v. Bagley, 37 Mo. 3(i3 Hall V. iEtna Man. Co., 30 Iowa, 215 ti. Austin, 2 Coll. 570 V. Carter, 83 N. C. 249 V. Cincinnati, &c. R. R., 1 Disney, 58 V. Clayton, 42 Iowa, 520 V. Gale, 14 Wis. 54 V. Hall, 38 How. Pr. 97 V. Lonkey, 57 Cal. 80 V. Kelson, 23 Barb. 88 388, V. Oluev, 65 Barb. 27 V. Plaine, 14 Ohio St. 417 16G, V. Roberts, 61 Barb. 33 Ilallahan v. Herbert, 57 N. Y. 409 Hallett V. Hallett, 2 Paige, 15 310, 441, 443, 444, Hallock V. De Munn, 2 N. Y. S. C. 350 V. Smith, 4 Johns. Ch. 649 Ham V. Greve, 34 Ind. 18 V. Henderson, 50 Cal. 367 Hamill v. Thompson, 3 Col. 518 87, 104, Hamilton v. Fond du Lac, 40 AVis. 47 V. Wright, 36 N. Y. 502 Hamlin /•. Wright, 23 Wis. 491 320, Ilammell v. Queen's Ins. Co., 50 Wis. 240 Hammond i\ Mu.^kwa. 40 Wis. 35 V. Pennock, 61N. Y. 145 309, f. Perry, 38 Iowa, 217 115, V. S. C. & P. ]{. R., 49 Iowa, 450 V. Terry, 3 Lans. 186 Ilamp >: Robinson, 3 De G J. & S. 97 Ilampson v. Fall, 64 Ind. 382 113, Hancock v. Johnson, 1 Mete. 242 534 739 473 416 761 840 822 288 219 751 400 689 643 307 832 751 181 186 577 399 412, 499 251 96, 644 731 425 729 414 657 181 843 842 503 644 392 741 172, 216 168 152 315, 447 376 308 731 222 102, 384 370 175 406 280 293 432 121 629 839 410 115, 804 493 TABLE OF CASES CITED. xliii Hancock v. Ritchie, 11 Tnd. 48 Haiilin v. Martin, 58 Cal. 821 Hann v. Van Voorliis, 5 Hun, 425 Hanna v. Jeffersonviile, &c. R. R., 32 Ind. 113 Hannibal, &c. R. R. v. Kundson, 62 Mo. oti'J HanniiifT v. Bassett, 12 Busli, 361 586, Hansford r. Holdam, 14 Bnsli, 210 Hanson v. Clieatovicli, 13 Ncv. 395 V. Vernon, 27 Iowa, 28 Hardcastle v. Sniitlison, 3 Atk. 245 Hardee i-. Hall, 12 Bush, 327 Harden v. Atcheson, &c. R. R., 4 Neb. 321 V. Corhett, 6 Hun, 522 Hardin v. Helton, 50 Ind. 319 152, Hardy v. Blazer, 29 Ind. 226 354, V. Miller, 11 Neb. 395 340, 489, V. Mitchell, 67 Ind. 485 Hares v. Stringer, 15 Beav. 206 310, Harlan v. Edwards, 13 Ind. 430 Harlin v. Stevenson, 30 Iowa, 371 Harlow v. Hamilton, 6 How. Pr. 475 Harney v. Charles, 45 Mo. 157 V. Butcher, 15 Mo. 89 V. Indianapolis, &c. R. R., 32 Ind. 244 Harpending v. Shoemaker, 37 Barb. 270 Harper v. Milwaukee, 30 Wis. 365 Harral v. Gray, 10 Neii. 186 89. Harrington v. Bruce, 84 N. Y. 103 V. Fortner, 58 Mo. 468 V. Higham, 15 Barb. 524 Harris ?'. Avery, 5 Ivans. 146 V. Brvant, 83 N. C. 568 V. Burwell, 05 N. C. 584 343, 509: 302, 202, 201, 609. 117, V. Harris, 61 Ind. 117 V. Hillegass, -54 Cal. 463 V. Kasson, 79 N. Y. 381 V. Rivers, 53 Ind. 216 789, 790, V. Shoutz, 1 Mont. 212 V. Todd, 16 Hun, 248 V. Turnbridge, 83 N. Y. 92 V. Vinyard, 42 Mo. 568 V. White, 81 N. Y. 532 Harris Man. Co. i>. Marsh, 49 Iowa, 11 Harrison v. Barnby, 5 T. R. 249 V. Juneau Bk., 17 Wis. 340 106, V. Martinsville, &c. R. R., 16 Ind. 505 V. Stewardson, 2 Hare, 530 320, 424, 441, Harrison Co. v. McCarty, 27 Ind. 475 Harrod v. Burgess, 5 Rob. 449 Harsh v. Morgan, 1 Kan. 293 325, Hart V. Coffee, 4 Jones Eq. 321 4-31, V. Crawford, 41 Ind. 197 659, V. Cundiff, Stanton's Code, 61 V. Young, 1 Lans. 417 Harte v. Houcliin, 50 Ind. 327 158, 222. 163 608 320 753 481 076 ()44 752 174 424 340 676 618 158 371 491 320 312 288 405 642 174 216 174 631 612 104 140, 618 115 362 ;520 ,407 796, 797 ,282 580 614 , 828 678 618 629 121 732 587 229 501 728 414, 442 174 473 525 435 742 493 375 199, 836 738 128, 745 753 643 314 371 428 397 476 393, Ilartcr v. Crill, 33 Barb. 283 Hartley v. Brown, 46 Cal. 201 Ilartson v. Hardin, 40 Cal. 264 Hartwell v. Page, 14 Wis. 49 Harvey v. Harvey, 4 Beav. 215 V. Wilson, 44 Ind. 231 Ilarwood o. Kirby, 1 Paige, 469 V. Marye, 8 Cal. 580 V. Quimby, 44 Iowa, 385 Hasbrouck v. Bunce, 3 N. Y. Sup. Ct. 309 264, 265 Hasheagan v. Specker, 36 Ind. 413 379 Haskell v. Haskell, 54 Cal. 262 541, 610 V. Moore, 29 Cal. 437 839 Hatcher v. Briggs, 6 ( )reg. 31 113, 121, 345 Hathaway v. Baldwin, 17 Wis. 616 693 V. Cincinnatus, 62 N. Y. 434 219 V. Quimbv, 1 N. Y. S. C. 386 585, 601, 607 V. Toledo, &c. R. R., 46 Ind. 25 586 Hatsall V. GrifRtli, 4 Tyr. 487 226, 227 Hauenstein v. Kull, 59 How. Pr. 24 223 Haughton v. Newberry, 69 N. C. 450 138, Havana, Bk. of v. Magee, 20 N. 355 Hawke v. Thorne, 54 Barb. 164 Hawkins v. Borland, 14 Cal. 413 I'. Craig, 1 B. Mon. 27 V. Hawkins, 1 Hare, 543 Hawley v. Commissioners, &c., N. C. 22 Hawse v. Burgmere, 4 Col. 313 Hay y. Hay, K3 Hun, 315 V. Short, 49 Mo. 139 352 Y. 249 181, 533 714 315, 321 310 82 370 608 509, 536 770, 785, 824. 826, 843 Haycock v. Haycock, 2 Ch. Cas. 124 304, 305, 410 Haydel v. Bateman, 2 La. An. 755 473 Hayes v. Hathorne, 74 N. Y. 486 158 V. Hill, 17 Kan. 360 436 Haynes v. Harris, 33 Iowa, 516 282, 303 Hays V. Crist, 4 Kan. 350 268 V. Crutcher, 54 Ind. 260 359 V. Miller, 12 Ind. 187 480 Haywood v. Buflfiilo, 14 N. Y. 534 102 V. Stearns, 39 Cal. 58 393, 399 V. Ovey, 6 Mad. 113 435 Hazard v. Agricultural Bk., 11 Rob. 326 473 Hazleton v. Union Bank, 32 Wis. 34 600, 602, 605 Heaston r. Cincinnati, &c. R. R., 16 Ind. 275 728, 733 Heath V. Heath, 31 Wis. 223 753 V. Silverthorn Min. Co., 39 Wis. 146 400, 522 Heaton v. Dearden, 10 Beav. 147 304 Heavenridge v. Mondy, 34 Ind. 28 199, 213, 641 Heavilon v. Heavilon, 29 Ind. 509 130 Heermans v. Robertson, 64 N. Y. .332 115 Hees V. Nellis, 1 N. Y. Sup. Ct. 118 250, 278 Hegler v. Eddy, 53 Cal. 597 741, 748, 752 xliv TABLE OF CASES CITED. Ileimstreet v. Winnie, 19 Iowa, 430 392, 899, 400 Heine r. Meyer, 01 N. Y. 171 843 lleinnuillcr v. Gray, 13 Abb. Pr. n. s. 299 304 Heir 1-. Grant, 47 N. Y. 278 718 Hehn v. Hanlin, 'J U. Mon. 2.32 313, 414 Hembroc'k r. Stark. 63 Mo. 588 824 llenune r. Hays, iit> Cal. 337 057 Heninienway v. Stone, 7 Mass. 58 330 Henderson v. Diekey, 50 Mo. 151 89, 90, 97, 98, 103, 127, 504 Hendricks c. Decker, 35 Barb. 298 714, 743 V. IJobinson, 2 Jolins. C:h. 283 447 Hendricksi)n r. I5eers, Bosw. 039 183 llendri.x r. Gore, 8 Oreij. 400 732 c. Money, 1 Bush, 300 443 Hendry i: Hench-y, 32 Ind. 340 401, 839 Henley v. Stone, 3 Beav. 355 437 i\ Wilson, 77 N. C. 216 600 Henry v. Cass Co., &,c. Co., 42 Iowa, 33 476 V. Earl, 8 I\I. & W. 228 705 f. Henry. :! Kobt. 014 541, 800, 831 r. Marvin, 3 K. 1). Smith, 71 632 Hereth c. Smith. 33 Ind. 514 157, 160, 732 Herriek r. Woolverton. 41 N. Y. 581 203 Herrinj? r. Ilely, 43 Iowa, 157 87, 644 r. Yoe, 1 Atk 290 310 Herrington v. Robertson, 71 N. Y. 280 102 Ilerron v. Jurv, Idaho R. 228 118 llerschfield (-."Aiken, 3 Mont. 442 043 Hervev r. Saverv, 48 Iowa, 313 345 Hess V. Yoiintr, 59 Ind. 379 580, 830 Hewett ?•. Swift, 10 Am. L. Reg. 505 367 Hewlett V. Owens. 51 Cal. 570 20t) Hibben v. Soyer, 33 Wis. 319 720 Hibernia Sav. Soc. v. Ordway, 38 Cal. 679 492, 493 Hichens r. Kellv, 2 Sm. & G. 264 301 Hicks r. Doiy, 4 Bush. 420 104 r. Keigle, 32 Ind. 300 728 V. Sheyipard, 4 Lans. 335 111, 803 1-. Whitniore. 12 Wend. 548 172 Hicksville, &c. R. H. i-. Long Island R. U., 48 Barb. 355 804 Hier v. Grant, 47 N. Y. 278 714, 723 V. Staples, 51 N. Y. 136 340, 375, 376 Higgins V. Germaine, 1 Mont. 230 580. 594, 674, 690 I". Jefifersonville, &c. R. R., 52 Ind. 110 580 V. Senior, 8 M. & W. 834 172, 218 V. Wortel. 18 Cal. 3.30 090 High 1-. Worley, 32 Ala 709 321 Higler i'. Kddy, 53 Cal. 597 740 Higley r. Gilmer, 3 Mont. 90 586 Hill V. Adams, 2 Atk. 39 437 V. Barrett, 14 B. Mon. 83 135, 1.38, 556 V. Butler, Ohio St. 207 784, 8.33 r. Davis, 3 N. H. 384 032 Hill V. Durand, 50 AVis. 354 413 V. Gibbs, 5 Hill, 50 203 V. Golden, Id B. Mon. 551 793 V. Marsh, 40 Ind. 210 247, 249, 270, 274, 339 V. Perrott, 3 Taunt. 274 636 V. RosscUe, 6 Hun, 031 877 V. Supervisors, 10 Ohio St. 621 616 V. Supervisors. 12 N. Y. 52 220, 370 V. Tucker, 1 Taunt. 7 226, 227 Hillman v. Hillman, 14 How. Pr. 450 289, 640 V. Newington, 57 Cal. 56 304, 307 Hills V. MeRae, 9 Hare, 297 431 V. Nash, 1 Piiil. 594 309, 312 V. Sherwood, 48 Cal. 386 113, 303, 319 Hilton t'. Lotlirop, 46 Me. 297 437 V. Waring, 7 Wis. 492 101 Hinckley r. Smith, 51 N. Y. 21 376 Hinds V. Tweddle, 7 How. Pr. 278 031, 032 Hinkie v. Davenport, 38 Iowa, 355 279, 490, 493, 537 V. Margcrum, 50 Ind. 240 113, 118, 804, 822 r. San Francisco, &c. R. R., 55 Cal. 027 614 Ilinman v. Bowen, 5 N. Y. Sup. Ct. 234 169 Hi.xon ?•. Gurge, 18 Kan. 253 651 Iloaixland v. llan. & St. Joseph R. R., 39\Mo. 451 491, 538 Hobart v. Abbott, 2 P. Wms. 043 437 I'. Frost, 5 Dnor, 672 251 Hobbs V. Duff, 23 Cal. 596 840 Ilobson r. Ogden, 10 Kan. 388 629 Hodge V. Sawver, 34 Wis. 397 628 Hodges r. Kiinbali, 49 Iowa, 577 463 Hodgman v. Chicago, &c. R. R., 28 Minn. 48 174 V. Western R. R., 7 How. Pr. 492 185 Ilodson V. Davis, 43 Ind. 258 879 Iluffa r. Iloflijum, 33 Ind. 172 823 Hollinan r. Ki)pcrs, 41 Wis. 2.57 671 Iloflhiaiin r. Kojijielkora, 8 Keb. 344 009 Ilogendobler r. Lyon, 12 Kan. 270 274 Holl)rook V. N. J. Zinc Co., 57 N. Y. 616 194 Ilolcraft V. Mellott, 57 Ind. 539 657 Holden v. N. Y. & Erie Bank, 72 N. Y. 286 218, 301 Iloldridge v. Sweet, 23 Ind. 118 371,390, 398 Ilolgate r. Broome, 8 Minn. 243 839 Holland r. Baker, 3 Hare, (iS 414, 424 V. Drake, 29 Ohio St. 441 404 r. Johnson, 51 Ind. .340 110, 118 Ilollenbeck v. Clow, 9 IIow. Pr. 289 760 Holliday v. McMillan, 83 N. C. 270 792, 830 Ilollincsworth v. State. 8 Ind. 257 287 r.Swedenbonr, 49 Ind ."hS 282,288 Holmes r. Davis, 21 Barb. 205 534 V. Richet, 50 Cal. 307 788 TABLE OF CASES CITED. xlv Holmes v. Williams, 16 Minn. 104 525. 534,601,606,007 Holzbauer v. Heine, 37 Mo. 44.3 785, 702 Hook V. Craif;liead. 32 Mo. 405 V. Turner, 22 Mo. 333 V. Wiiite, 36 Cal. 299 Hooker v. Green, 50 Wis. 271 Hoover v. Donally, 3 Hen. & Mun. 310 Hope Life Ins. Co. v. Taylor, 2 Robt. 278 Hopkins r. Oilman, 22 Wis. 481 V. Oraill, 51 Cal. 537 V. Orjian, 15 Ind. 188 Hopkinson v. Lee, 6 Q. B. 971 Hoppough V. Struble, 60 N. Y. 430 Hopwood V. Patterson, 2 Oreg. 49 Hord V. Chandler, 13 B. Mon. 403 Horn 732 725 712 i 760] 316 218 1 345, 624 i 611 371 ' 227 115, 116 759 135, 493 Hnd«:on r. McCartney, 33 Wis. 331 615 Huffarker r. Nat. Bank, 12 Bush, 287 693 Hughes V. Boone, 81 N. C. 204 282, 309 Chicago, &c. R. K., 38 Wis. 463 586 V. Luddington, 32 Wis. 73 99, 103, 557, 559, 563, 574, 602 V. Volcano W. Co.. 13 Cal. 62 469, 473 Hornby v. Gordon, 9 Bosw. 656 467, 468 Horneffer r. Duress, 13 Wis. 604 288 Horner v. Wood, 23 X. Y. 350 184 Horsley r. Fawcett, 11 Beav. 565 313 Horstkotte i: Menier, 50 Mo. 158 434 Horton v. Ruhlintr, 3 Nev. 498 748 Hosley v. Black, 28 X. Y. 438 340, 593, 596 Houghton V. Lynch, 13 Minn. 85 216 V. Tovvnsend, 8 How. Pr. 447 555 House v. Dexter, 9 Mich. 246 421 V. Lowell. 45 Mo. 381 491, 493 V. Marshall, 18 Mo. 368 840 j Howard v. Johnston, 82 N. Y. 271 822 ' V. Shores, 20 Cal. 277 840 V. Throckmorton, 48 Cal. 482 675 V. Tilfanv, 3 Sandf. 695 555 Howe V. Peckham, 10 Barb. 656 503, 520 Howell V. Howell, 15 Wis. 55 753 i Howe Machine Co. v. Reber, 66 Ind. 489 822 Howes r. Racine, 21 Wis. 514 174 Howland v. Fish, 1 Paige, 20 315 V. Needham, 10 Wis. 495 135, 625 Howland Coal Co. v. Brown, 13 Bush, 681 643 Howse V. Moody, 14 Fla. 59 433, 501, 524 Hoyt r. McNeil, 13 Minn. 390 753 V. Thompson. 5 N. Y. 320 179 Hubbard v. Burrell, 41 Wis. 365 276 V. Gurnev, 64 N. Y. 457 344 V. Johnson Co., 23 Iowa, 130 174 Hubbell V. Lerch, 58 X. Y. 237 265, 525 V. Medburv, 53 X. Y. 98 215, 321 V. Meigs, 50 N. Y. 480 139, 364 V. Skiles. 16 Ind. 138 371 I. Von Sciioening, 49 X. Y. 330 117 Hubble V. Vaughan, 42 Mo. 138 115 Hubler v. Pullen, 9 Ind. 273 741 Hudson V. Caryl, 44 X. Y. -553 96, 97 V. Commissioners, 12 Kan. 140 824 Davis. 40 Cal. 117. 118 Hughsen v. Cookson, 3 Y. & C. 578 Hulce V. Thompson, 9 How. Pr. 113 Hull 1-. Vreeland, 18 Abb. Pr. 182 Hume V. Dessar, 29 Ind. 112 Humphrey v. Merritt, 51 X. Y. 197 725 305 541 536 641 830. 836 357 316 364, 416 317 792, 842 312 Humphreys v. Crane, 5 Cal. 173 V. Hollis, Jac. 73 Hun V. Gary, 82 X. Y. 65 Hunt V. Acre, 28 Ala. 580 V. Chapman, 51 X. Y. 555 V. Peacock, 6 Hare, 361 V. Winfield, 36 Wis. 154 293 Hunter v. Commissioners, 10 Ohio St. 515 217 V. Macklew, 5 Hare, 238 308 V. Martin, 57 Cal. 365 690 v. Mathis, 40 Ind. .3-56 714, 725 r. McCoy, 14 Ind. 528 501 V. McLaughlin, 43 Ind. 38 733 r. Powell, 15 How. Pr. 221 539, 609 Huntington v. Mendenhall, 73 Ind. 460 614 Hural V. Gray. 10 Xeb. 186 102 Hurlbut V. Post, 1 Bosw. 28 357 Hurst V. Litchfield, 39 X. Y. 377 593, 596 Huson V. McKenzie, Dev. Eq. 463 310 Huston V. Craiehead, 23 Ohio St. 108 753 V. Plato, 3 Col. 402 632 V. Stringham, 21 Iowa, 36 391, 395, 396 v. Twin, 45 Cal. 550 690 Hutchings r. Castle, 48 Cal. 152 660, 665 V. Weems, 35 ]\Io. 285 166 Hutchins v. Moore, 4 Mete. (Ky.) 110 787 Hutchinson v. Roberts, 67 X. C. 223 311 Hyde i: Lamberson, 1 Idaho, 536 753 V. Su]iervisors, 43 Wis. 129 641 Hynds v. Havs. 25 Ind. 31 609 Hyslop V. Randall, 4 Duer, 660 185 Iliflfr. Brazill, 27 Iowa, 131 Independent School Dist. v. Ind. School Dist., 50 Iowa. 322 Indiana. &e. R. R. v. McKeman, 24 Ind. 62 371 Indianapolis, «S;c. R. R. v. Ballard, 22 Ind. 448 r. McCaflTev, 72 Ind. 307 V. Milligan, 50 Ind. 393 r. Risby, 50 Ind. 60 657, V. Robinson, 35 Ind. 380 V. Rutherford. 29 Ind. 82 685, Indianapolis F. &M. Co. v. Herkimer, 46 Ind. 142 Ingle V. Jones, 43 Iowa, 286 476, 556, 889 257 ,418 840 608 586 ,690 578 722 727 562, 688 xlvi TABLE OF CASES CITED. Ingles V. Patterson, 30 Wis. 373 117, Ingrahaiii r. Disbrough, 47 N. Y. 421 Inslee v. FTampton, 8 Ilun, 230 International Bank r. Franklin Co., 65 Mo. 105 Iowa, &c. R. R. I'. Perkins, 28 Iowa, 281 Ireland v. Nichols. 1 Sweeney, 208 Ireson v. Denn, 2 Cox, 425 Ireton v. Lewes, Finch, 'M Irish V. Sneison, 10 Ind. 305 Irvin V. Wood, 4 Robt. 138 Isliam V. Davidson, 52 N. Y. 237 703, Isler r. Koonce, 83 N. C. 55 Isley V. Hnber, 45 Ind. 421 731, Ives V. Miller, 19 Barb. 196 V. Van Epps, 22 Wend. 155 Jackson i'. Allen, 30 Ark. 110 V. Daggett, 24 Hun, 204 152, v. Featlier River Co., 14 Cal. 18 V. Fosbender, 45 Ind. 305 V. Rq.wlins, 2 Vern. 195 431, V. Whedon, 1 E. I). Smith, 141 Jackson Sharp Co. v. Holland, 14 Fla. 384 GOO, Jacob r. Lucas, 1 Beav. 430 Jacobs V. Remsen, 12 Abb. Pr. 390 Jacot V. Boyle, 18 How. Pr. 106 James v. Clialmers, N. Y. 209 r. Cutter, 53 Cal. 31 V. Enierv, 5 Price, 529 V. Wilder, 25 Minn. 305 Jameson v. King, 50 Cal. 132 Jamison i: Copher, 35 Mo. 483 492, Janes v. Williams, 31 Ark. 175 300, Jagers v. Jagers, 49 Ind. 428 Jarvis i-. Peck, 19 Wis. 74 785, Jauch V. Jauch, 50 Ind. 135 Javcox V. Caldwell, 51 N. Y. 395 Jerterson v. Hale, 31 Ark. 280 Jeffersonville, &c. R. R. i-. Bowen, 40 Ind. 545 V. Dunlap, 29 Ind. 426 V. Ovler, CO Ind. 383 V. Vancant. 40 Ind. 2-33 V. Worland, 50 Ind. 339 Jeffrie r. Walsh, 14 Nev. 143 Jemison v. Walsh. 30 Ind. 167 Jenkins r. Long. 19 Ind. 28 V. N. C. Ore Dressing Co., 65 N. C. 503 V. Sniitli. 4 Met. (Ky.) 380 I'. Steanka. 19 Wis. 120 Jenks r. Upp, 43 Ind. 108 354, Jennings i-. Palerson, 15 Beav. 28 Jesse V. Bennett, De G. M. & G. 000 JesBup v. City Bank, 14 Wis. 331 Joeet V. Williams, 42 Ind. 565 804 189, 192 843 608 537 83 308 309 840 300 824 463 744 839 709 349 180 722 008 435 751 693 318 744 400 157 810 226, 228 489 004 539 384 480 804 737 377 608 685, Oil. 586 722 804 (i41 i;i4 029 130 730, 748 042 300 075 355 410 314, 414 502 731 Johannesson v. Borschenius, 35 Wis. 131 1.33, 138, 017, Johns V. Potter, 55 Iowa, G(;5 Jolinson r. Asliland Co., 44 Wis. 119 V. Britton, 23 Ind. 105 340, 390, V. Chandler, 15 B. :\lon. 584 V. C. R. I. & P. R. R., 50 Iowa, 25 V. Cuddington, 35 Ind. 43 714, r. Dicken, 25 Mo. 580 V. Filkington, 39 Wis. 02 V. Gunter, Bush, 534 V. Kilgore, 39 Ind. 147 579, I'. Kent, 9 Ind. 252 V. Knapp, 36 Iowa, 016 V. Miller, 47 Ind. 376 V. Monell, 13 Iowa, 300 392, V. Moss, 45 Cal. 515 V. Orog. Nav. Co., 8 Oreg. 35 V. Robinson, 20 Minn. 170 425, V. Strader, 3 Mo. 359 V. Tutewiler, 35 Ind. 353 V. White, 6 Hun, 587 Johnston v. Bennett, 5 Abb. Pr. n. s. 331 183, V. Neville, 08 N. C. 177 403, V. Pate, 83 N. C. 110 Joliet Iron, &c. Co. v. C. C. & W. R. R. 51 Iowa, 300 Jolly 1-. Terre Haute, &c. Co., 9 Ind. 421 Jones ('. Billstein, 28 Wis. 221 V. Cin. Type Foundry, 14 Ind. 89 V. Felch, 3 Bosw. 03 V. Frost, 51 Ind. 69 586, 657, 668, V. Goodchild, 3 P. Wms. 33 V. Hoar, 5 Pick. 285 V. How, 7 Hare, 207 V. Jenkins, 9 liob. 180 V. Jones, 3 Atk. 110 V. Keep, 23 Wis. 45 V. Ludluni, 74 N. Y. 01 V. I\Iial. 79 N. C. 104 V. Moore, 42 Mo. 419 588, 591, 785, 804, 834, V. Palmer, 1 Abb. Pr. 442 V. Rahilly, 16 Minn. 320 V. Seward Co., 10 Neb. 154 714, V. Shaw, 67 Mo. 607 V. Sheboygan, &c. R. R., 42 Wis. 307 V. Smitli, 2 Ves. 372 V. Steamship Cortes, 17 Cal. 487 137, 514, r. Vantress, 23 Ind. 5-33 403, V. Williams, 31 Ark. 175 Jopp V. Wood, 2 De G. J. & S. 323 Jordan i-. White, 20 Minn. 91 Joubert v. Carli, 20 Wis. 594 584, Joyce r. Whitney, 57 Ind. 550 Judah V. Trustee, 16 Ind. 50 830, 834, V. Univ. of Vincennes, 23 Ind. 272 Judd V. Moseley, 30 Iowa, 423 V. Young, 7 IIow. I'r. 79 621 609 587 399 463 586 744 293 029 790 594 799 107 751 ,395 016 587 602, 005 632 379 052 186 464 587 '475 556 302 728 203 732 314 632 410 473 411 358 671 595 829, 840 041 723 717 732 727 308 135, 518 464 407 318 167 600 846 842 682 421 467 TABLE OF CASES CITED, xlvii Judy V. Farmers', &c. Bank, 70 Mo. 407 463 Justice V. riiillips, 3 Bush, 200 250, 208 Jewett V. Honey Creek Co., oO Ind. 245 G41 K. Kalin V. Kahn, 15 Fla. 400 90, 490 Kaliinvoiler v. Anderson, 78 N. C. 133 173 Kalcklioff iK Zoelirlaut, 40 Wis. 427 604, 632 Kamm v. Marker, 3 Oreg. 208 354 Kansas City Hotel Co. v. Sauer, 65 Mo. 279 642 r. Sigement, 53 Mo. 176 503 Kansas Pac. R. R. v. McBratney, 12 Kan. 9 129 V. McCorniick, 20 Kan. 107 580 Kantrowitz v. Pratlier, 31 Ind. 92 378 Karnes v. Rochester, &c. R. R., 4 Abb. Pr. N. s. 107 417 Kasson v. People, 44 Barb. 347 363, 368 Kaster v. Raster, 52 Ind. 531 604 Katzhausen v. Koehler, 42 Wis. 232 675 Kavanauiih v. Janesville. 24 Wis. 618 293 Kay V. Whittaker, 44 N. Y. 565 394, 307, 678 Kaye v. Fosbrooke, 8 Sim. 28 315 Kavs V. Phelen, 19 Cal. 128 287 Kavser v. Siciiel, 34 Barb. 89 577, 634 Keeler v. Keeler, 3 Stockt. 458 315, 321 Keep V. Kaufman, 56 N. Y. 332 539 Keigiitiey r. Walls, 24 Ind. 205 840 V. Watson, 3 Exch. 716 228 Keim, &c. Co. v. Avery, 7 Neb. 54 732 Kellar v. Beelor, 5 Monr. 573 310 Keller v. Biasdel, 1 Nev. 491 354 V. Boatman, 49 Ind. 104 489, 538, 068 V. Hicks, 22 Cal. 457 534 V. Jolinson, 11 Ind. 337 730 V. Tracy, 11 Iowa, 530 442 V. Williams, 49 Ind. 504 371 Kelley v. Thornton, .56 Mo. 325 282 Kel!oi,^g V. Adams, 51 Wis. 138 173 V. Alierin, 48 Iowa, 299 121, 315 V. Baker, 15 Abb. Pr. 286 761 V. Mai in, 62 Mo. 429 250 V. Ohnsted, 6 How. Pr. 487 369 V. Oshkosh, 14 Wis. 623 174 V. Schuyler, 2 Denio, 73 185 V. Sweeney, 1 Lans. 397 216 Kelly V. Bernheimer, 3 N. Y. S. C. 140 761 V. Dee, 2 N. Y. Sup. Ct. 286 115 Kelsey v. Bradbury, 21 Barb. 531 454 r. Henry, 48 Ind. 37 577, 641 V. Murray, 28 How. Pr. 243 467 Kelty V. Long, 4 N. Y. S. C. 163 377 Kendig v. Marble, 55 Iowa, 386 732 Kennard r. Sax, 3 Oreg. 263 378, 451 Kennedv v. Filan, 17 Alib. Pr. 73 216 V. Gibson, 8 Wall. 498 320 V. Shaw, 38 Ind. 474 723 V. Williams, 11 Minn. 314 287, 753 Kenner's Syndic v. Holliday, 19 Louis 154 Kent V. Agard, 24 Wis. 378 V. Cantrall, 44 Ind. 452 V. Rogers, 24 Mo. 306 V. Snyder, 30 Cal. 666 Kentficld v. Hayes, 57 Cal. 409 Kentucky, &c. Co. v. Commonwealth, 13 Bush, 436 690 Kenyon r. Quinn, 41 Cal. 325 111 Kersteller v. Raymond, 10 Ind. 199 724 583 167 Kettle V. Crary, 1 Paige, 417 Keyes v. Little York Co., 53 Cal Kilbourn v. St. Jolm, 59 N. Y. 21 Killian v. Eigenman, 57 Ind. 480 Killmore v. Culver, 24 Barb. 656 Kilsey v. Henry, 48 Ind. 47 Kimball v. Darling, 32 Wis. 675 V. Noyes, 17 Wis. 695 V. Spicer, 12 Wis. 668 r. Wiiitney, 15 Ind. 280 Kimberlin v. Carter, 49 Ind. Ill King V. Anderson, 20 Ind. 385 V. Conn, 25 Ind. 425 V. Cutts, 24 Wis. 625 V. Enterprise Ins. Co., 45 Ind. 43 580 V. Hoare, 13 M. & W. 499 V. Knapp, 59 N. Y. 460 V. Lawrence, 14 Wis. 238 V. Martin, 2 Ves. 643 V. Montgomery, 50 Cal. 115 V. Orser, 4 Duer, 431 V. Talbot, 40 N. Y. 76 Kingsland v. Braisted, 2 Lans. 17 Kingsley v. Oilman, 12 Minn. 515 669, Kinkle v. Margerum, -50 Ind. 240 Kinnaman v. Pvie, 44 Ind. 275 Kirk V. Clark, Prec. Ch. 275 V. Woodbury Co., 55 Iowa, 190 V. Young, 2 Abb. Pr. 453 Kirkpatrick v. State, 5 Kan. 673 Kiskadden v. Jones, 63 Mo. 190 Kittle V. Fremont, 1 Neb. 329 V. Van Dyck, 1 Sandf. Ch. 76 Klais V. Pulford, 36 Wis. 587 Klonne v. Bradstreet, 7 Ohio St. 322 Klussman v. Copeland, 18 Ind. 306 Knailler v. Sharp, 36 Iowa, 232 Knapp V. Runnells, 37 Wis. 135 Knarr v. Conaway, 42 Ind. 200 Kneedler v. Sternbergii, 10 How. Pr. 07 Knichbaum v. Melton, 49 Ind. 50 Kniffen v. McConnell, 30 N. Y. 290 Kniglit V. Knight, 3 P. Wms. 333 V. Pocock, 24 Beav. 436 Knott V. Stephens, 3 Oreg. 269 Knour r. Dick, 14 Ind. 20 799, Khowles V. Gee, 8 Barb. 300 V. Rablin, 20 Iowa, 101 391, 399, 473 113 792 840 731 113 ,692 113 593, 596 310 365 174 640 157 586 ,002 , 169 218 357 651 263 840 224 557, ,609 227 822 409 530 008 364 412 340, 356 ,688 480 379 313 6.51 441 174 745 173 398 732 77, 121 359 153 741 755 738 845 7.38 385 .306 419 ,840 555 403, 437 xlviii TABLE OF CASES CITED. Knowlton r. Mickles, 29 Barb. 4G5 432 Koeuipc'l V. Sliaw, 13 Minn. 488 777, 824, 820 Koenigr i'. Steckel, 58 N. Y. 475 308 Koenijrer v. Creed, 58 Ind. 554 270 Kowing V. iManly, 57 Barb. 579 373, 374 Kramer v. Cauger, 16 Iowa, 434 288 V. Rebnian, 9 Iowa, 114 83 Kretser v. Carev, 52 Wis. 374 643 Kuelin i: Wilson, 13 Wis. 104 602 Kuiiiand V. Sedgwick, 17 Cai. 123 678 Kupfer V. Sponliorst, 1 Kan. 75 362 Kurtz i>. McGuire, 5 Duer, 660 827 Lackey v. Vanderbilt, 10 How. Pr. 155 640 La Crosse v. Melrose, 22 Wis. 459 219 Ladd V. James, 10 Obio St. 437 502 La Farge v. llalsev, 1 Bosw. 171 789 La Favctte v. Fowler, 34 Ind. 140 174 Lafavette, &c. R. K. v. Eliman, 30 " Ind. 83 714 V. Huffman, 28 Ind. 287. 586 Lafayette Co. v. Hixon, 69 Mo. 581 173, 219 Lafever v. Stone, 55 Iowa, 49 586 Lake v. Cruiksbank, 31 Iowa, 395 728 Lake Ontario, &c. R. R. v. Curtiss, 80 K. Y. 219 169 Lamb v. Brolaski, 38 Mo. 51 840 Lamon v. Hackett, 49 Wis. 261 641 Lamoreux v. Atlant. M. Ins. Co., 3 Duer, 680 609 Lampman v. Hammond, 3 N. Y. Sup. Ct. 293 382 Lamson v. Falls, 6 Ind. 309 160, 751 Lancaster v. Gould, 40 Ind. P,91 303, 370 Lancaster, &c. Man. Co. v. Colgate, 12 Obio St. 344 761, 824 Landau v. Levy, 1 Abb. Pr. 376 540 Landers v. Bolton, 26 Cal. 393 678 V. Douglas, 46 Ind. 522 751 Lane v. Cameron, 38 Wis. 613 617, 620 I'. Doty, 4 Barb. 534 357 V. Drinkwater, 1 C. M. & R. 599 227 r. Gilbert, 9 How. Pr. 150 738 1-. Miller, 27 Ind. 534 602 V. Salter, 51 N. Y. 1 354 V. Scbromp, 5 C. E. Green, 82 174 V. State, 7 Ind. 426 493, 524, 641 Lang V. Waring, 25 Ala. 625 310 Lange v. Benedict, 73 N. Y. 12 642 Langsdale v. Girton, 51 Iiul. 99 251, 657 Langton v. Hagerty, 3.'j Wis. 150 739, 744 Lanier r. Irvine, 24 Minn. 116 358 Lansdale v. Mitcliell, 14 B. Mon. 350 840 Lansing r. Packer, 9 Hf)w. Pr. 288 761 Lap[)ing c Diiffv, 47 Iml. 56 155, 165 Large r. Van Doren, 1 McCarter, 208 307, 313, 4.36 Larimore v. Wells, 29 Obio St. 13 657 Larkin v. Noonan, 19 Wis. 82 Larned v. Hudson, 57 N. Y. 151 626 497, 518, 534 V. Rensbaw, 37 Mo. 458 429 Larson v. Reynolds, 13 Iowa, 579 380 Larue v. Hays, 7 Busb, 50 578 Larum v. Wilner, 35 Iowa, 244 752 Lasb V. Cbristic, 4 Neb. 262 604 V. McCormick, 17 Minn. 403 792 V. Rendell, 72 Ind. 475 755 Lasber v. Williamson, 55 N. Y. 619 789 Latbrop v. Godfrey, 6 N. Y. Sup. Ct. 96 198, 660, 792 V. Heacock, 4 Lans. 1 881 V. Knapp, 37 Wis. 307 218 Latlin v. McCarty, 41 N. Y. 107 77, 501, 620 Laub V. Buckmiller, 17 N. Y. 020 83, 86, 96. 97, 501, 520 Laudon v. Burke, 36 Wis. 378 378 Langblin v. Greene, 14 Iowa, 92 221 Lawe V. Hlyde, 39 Wis. 345 96, 99, 104, 113, 804, 832 Lawley v. Walden,3 Swanst. 142 305 Lawrence i'. Bk. of Republic, 35 N. Y. 320 404 V. Fox. 20 N. Y. 268 168, 169 V. Martin, 22 Cal. 173 185 V. Montgomery, 37 Cal. 183 204, 272, 492 V. Nelson, 21 N. Y. 158 205 V. Rokcs, 53 Me. 110 310, 312 Lawson v. Barker, 1 Bro. C. C. 303 410 r. Plaff, 1 Handy, 449 77 Lazard v. Wbeeler, 22 Cal. 1-39 163, 181 Leabo v. Dctrick, 18 Ind. 414 639. 755 Leacb v. Leacb, 2 N. Y. 8. C. 657 533! 631 V. Rbodes, 49 Ind. 291 677, 686 Leaird r. Smitb, 44 N. Y 018 117 Leavenson v. Lafontane, 3 Kan. 523 198, 202, 204 Leavenwortb v. Packer, 52 Barb. 132 780, 823 629 748 473 705 194,619 604 609 518 493, 626 282 165 665, 731 , 64 Barb. 23 394 Leidersdorf r. Flint, 50 Wis. 401 96, 499 V. Second Ward Bk., 50 Wis. 406 493 Leigb V. Tbomas, 2 Ves. 312 447 Leigbton v. Grant, 20 Minn. 345 731 Leiby v. Asbland, &c. Co., 49 Wis. 165 686 Leitcb I-. Wells, 48 N. Y. 585 194 Leavenwortb, &c. R. R. v. Van Riper 19 Kan. 317 Leavitt v. Catler, 37 Wis. 40 Ledda r. Maumus, 17 La. An. 314 Lediard v. Boucber, 7 C. & P. 1 Led wick v. McKim, 53 N. Y. 307 Lee r. Davis, 70 Ind. 464 V. Elias, 3 Sandf. 736 V. Partridge, 2 Duer, 463 I'. Simpson, 29 Wis. 333 Leedy v. Nasb, 67 Ind. 311 Leese v. Sberwood, 21 Cal. 151 Lefler v. Field, 52 N. Y. 621 Leggelt V. Mutual Life Ins. Co TABLE OF CASES CITED. xlix Lemon v. Trull, 13 How. Vr. 248 Leutiirhiin v. Smith, '2 riiil. 3U1 810, Lennox v. Eldred, 1 N. Y. S. C. 140 V. Reed. 12 Kan. 223 Leonard v. Rogan, 20 Wis. 540 8G, 103 Leopold V. Vankirk, 27 Wis. 152 Lerdall v. Charter Oak Ins. Co., 51 Wis, 426 Leroux v. Murdock, 51 Cal. 541 Le Rov V. yhaw, 2 Diier, ()20 362, Lestrade v. Bartli, 1',) Cal. 060 Letchford v. -Jacobs, 17 La. An. 79 Leuty V. Hillas, 2 De Cx. & J. 110 Leveck >•. Shaftoe, 1 Esp. 468 Levi V. Ilaversteck, 51 Ind. 236 Lev3' r. Brannan, 39 Cal. 485 I'. Loel), 85 N. Y. 365 V. Weber, 8 La. An. 439 Lewis V. Bortsfield, 75 Ind. 390 V. Covilland,21 Cal. 178 V. Edwards, 44 Ind. 333 602, V. Graham, 4 Abb. Pr. 106 V. Greider, 51 N. Y. 231 V. Henley, 2 Ind. 332 . V. Marshall, 56 N. Y. 663 V. McMillan, 41 Barb. 420 V. Shearaan, 28 Ind. 427 V. Soiile, 52 Iowa, 11 102, V. Williams, 3 Minn. 151 340, 345, Le.xington, &c. R. R. v. Goodman, 15 How. Pr. 85 V. Goodman, 5 Abb. Pr. 493 Leyde v. Martin, 16 Minn. 38 669, Lifler v. Sherwood, 21 Hun, 573 Liglitly V. Clouston, 1 Taunt. 113 Lignot V. Redding, 4 E. D. Smith, 285 838, Lillie V. Case, 54 Iowa, 177 Linden v. Hepburn, 3 Sandf. 668 Lindley v. Cross, 31 Ind. 106 379, 414, Lindsay v. Mulqneen, 26 Hun, 485 Liney v. Martin, 29 Mo. 28 Lingenfelser v. Simon, 49 Ind. 82 Linn v. Rugg, 19 Minn. 181 Lipperd v. Edwards, 39 Ind. 165 255, Lipprant v. Lipprant, 52 Ind. 273 Litchfield v. Polk Co., 18 Iowa, 70 Littell V. Sayre, 7 Hun, 485 344, 407, Little r. .Johnson, 26 Ind. 170 V. Virginia, &c. W. Co., 9 Nev. 317 Livermore v. Bushnell, 5 Hun, 285 Livesey v. Livesey, 30 Ind. 398 V. Onlaiia Hotel Co., 5 Neb. 50 Livingston r. Tanner, 12 Barb. 481 Lloyd V. Archbowle, 2 Taunt. 324 V. Lander, 5 Madd. 289 411, Lockwooil V. Bostwick, 2 Daly, 521 ;;. Quackenbush, 83 N. Y. 600 617, Logan V. Halo, 42 Cal. 645 V. Smith, 70 Ind. 597 V. Wallis, 76 N. C. 416 533, 538, 540, 823 312 375, 380 388 102, 625 612 657 076 456 118 473 317 228 740 725 822 473 608 187 685 218 272 174 219 789 840 106 4.34 523 416 688 613 636 780, 843 250 96 526 617 525 355 791 257 587 174 431 340 629 358 725 586 534 228 531 184 140, 620 404 396 632 Lolimiller v. Indian W. Co., 51 Wis. 683 364, 367 Lombard v. Cowham, 34 Wis. 486 111, 113, 725, 745, 804 Lomax v. Bailey, 7 Blackf. 599 V. Hide, 2 Vern. 185 London v. Perkins, 4 Bro. P. C. 158 V. Riciimond, 2 Vern. 421 Long V. Constant, 19 Mo. 320 V. Doxey, 50 Ind. 385 V. Heinrich, 46 Mo. 603 V. Morriscm, 14 Ind. 595 V. Swindell, 77 N. C. 176 V. Yaneeyville, Bk. of, 81 N. C. 41 Longendyke v. Longendyke, 44 Barb. 366 Longley v. Hudson, 4 N. Y. Sup. Ct. 353 Looby V. West Troy, 24 Hun, 78 696 399 424 303 163 610 153 293, 294 365 753 290 174 727, 742 Loomis V. Brown, 16 Barb. 331 242, 257, 272, 276 V. Eagle Bank, 10 Ohio St. 327 204 r. Mowry, 8 Hun, 311 618,632 V. Ruck, 56 N. Y. 620 190, 376 V. Youle, 1 Minn. 175 609 Lord V. Baldwin, 6 Pick. 348 228 V. Bearing, 24 Minn. 110 534 V. Lindsay, 18 Hun, 489 732 V. Underdunck, 1 Sandf. Cli. 46 316 Lorney v. Cronan, 50 Cal. 610 676 Los Angeles Co. v. Babcock, 45 Cal. 252 586 Lottin V. McCarty, 41 N. Y. 107 96, 97 Lottman v. Barnett, 62 Mo. 159 629 Louis V. Brown, 7 Oreg. 326 690 Louisville, &e. R. R. v. Thompson, 18 B. Mon. 735 838 Louisville Canal Co. v. Murphv, 9 Bush, 522 557, 561,^606, 643 Love V. Oldham, 22 Ind. 51 823 V. Watkins, 40 Cal. 547 378 Lovejoy v. Robinson, 8 Ind. 399 831, 840 Lovensohn v. Ward, 45 Cal. 8 807 Lowber v. Connil. 36 Wis. 176 89 Lowe r. Morgan, 1 Bro. C. C. 368 305 Lowell V. Lowell, 55 Tal. 316 674 Lower v. Denton, 9 Wis. 268 1.30 Lowry r. Dutton, 28 Ind. 473 644 r. Harris, 12 Minn. 255 340 V. Hurd, 7 Minn. 356 842, 843 V. Megee, 52 Ind. 107 686, 685 V. Shane, 34 Ind. 405 743 Lowville, Bk. of v. Edwards, 11 How. Pr. 216 251 Lubert v. Chauviteau, 3 Cal. 458 135, 840 Lucas V. N. Y. C. R. R., 21 Barb. 245 540 Luke V. Marshall, 5 J. J. Marsh. 356 268 Lull V. Fox, &c. Co., 19 Wis. 100 522, 524 Lumbert v. Palmer, 29 Iowa, 104 615 Luse V. Oaks, 36 Iowa, 562 373 Lutes V. Briggs, 64 N. Y. 404 174, 322 Lynd v. Picket, 7 Minn. 184 676 TABLE OF CASES CITED. Lvon V. Bunn, 6 Iowa, 48 729 Lylie V. Burgin, 82 N. C. 301 349 V. Lytle, 2 Mete. 127 153, 164, lOG, 371 V. Lytle, 37 Ind. 281 557, 580 M. Maas V. Goodman, 2 Hilt. 275 189, 198 Jlacdoufial c. Mafjuire. 35 Cal. 274 831 Mack V. Burt, 5 Hun, 28 727 Jlackenzie v. Board, &c., 72 Ind. 189 2-50 Mackey v. Auer, 8 Hun, 180 104, 588, 591, 644 Maclay v. Love, 25 Cal. 367 378 Madison Av. Bp. Cli. v. Oliver St. Bp. Cli., 73 N. Y. 83 96 IMadison Co. v. Brown, 28 Ind. 161 174 Madox V. Jackson, 3 Atk. 40G 431, 435 Magee r. Cutler, 43 Barb. 239 220 1-. Kast, 49 Cal. 141 595 V. Supervisors, 38 Wis. 247 609 Maguire v. Tyler, 47 Mo. 161 89. 96, 98 V. Vice, 20 Mo. 429 77, 89, 104 Malian v. IJoss, 18 Mo. 121 840 Mailer v. Hibernia Ins. Co., 07 N. Y. 283 100 V. Martin, 43 Ind 314 379 Mahoncy v. McLean, 26 Minn. 415 345 V. Robins, 49 Ind. 146 732 Malion's Adm'r v. Sawyer, 18 Ind. 73 728 Makepeace v. Davis, 2f Ind. 352 340, 345 Malin r. M;din, 2 Johns. Cli. 238 301, 313 Malone v. Stilwell, 15 Abb. Pr. 421 523 Mancliester v. Sabler, 47 Barb. 155 375 Mandlebaum v. Russell, 4 Nev. 551 364 Mangles v. Dixon. 3 H. L. Cas. 702 190 JIanhattan B. & M. Co. v. Tiiompson, 58 N. Y. 80 377 Mann v. vl'tna Fire Ins. Co., 38 Wis. 114 173 V. Fairchild, 2 Keyes, 106 102 V. Marsli, 35 Barb. 68 289 V. Pentz, 3 N. Y. 415 277 Manney v. Ingram, 78 N. C. 96 792, 830 Manning v. Gasbarie, 27 Ind. 399 847 V. M N. Y. 170 217 V. Kyder, 12 N. Y. 433 93, 55G, 574, 002 V. Sexton, 37 Cal. 532 475 I'. Slierwin, 2 N. Y. Sup. Ct. 528 175 I'. Slocuni, 1 Idaho, 02 215 V. Sloper, Idalio, 183 355, 608 V. Talmage, Cal. 25G 475 V. Tioga Co., 19 Wend. 73 179 V. Townsend, 37 Barb. 520 217 V. Tweed, 03 N. Y. 194 499 People's Bank v. Mitchell, 73 N. Y. 406 104 Perkins r. Ermel, 2 Kan. 325 714 V. Lewis, 24 III. 208 174 V. Perkins, 02 Barb. 531 290, 370 V. Port Wasliington, 37 Wis. 177 804 V. Rogers, 35 Ind. 124 753 Perry v. Chester, 12 Abb. Pr. n. s. 131 791, 799 V. Knott. 4 Beav. 179 312, 412, 414 V. Seitz, 2 Duv. (Kv.) 122 370, 371 V. Turner, 55 Mo. 418 354, 372 V. Whitaker, 71 N. C. 477 444 Person v. Merrick, 5 Wis. 231 308, 400 V. Warren, 14 Barb. 488 224 Peters v. Jones, 35 Iowa, 512 316, 421 V. St. Louis, &c. R. R., 24 Mo. 586 163 Petersen v. Chemical Bank, 32 N. Y. 21 163 Peterson v. Roach, 82 Ohio St. 374 577 Peto V. Hammond, 29 Beav. 91 388 Petre v. Duncombe, 7 Hare, 24 316 Petrie v. Burv, 3 B. & C. 353 228 V. Petrie," 7 Lans. 90 309, 310, 412, 431 Pettibone v. Edwards, 15 Wis. 95 306 V. Hamilton, 40 Wis. 402 322 Pettit v. Ilamlvn, 43 Wis. 314 586 Petty I'. Malier, 15 B. .Mon. 604 106, 117, 288 Peyer v. Parker, 10 S. C. 464 798 Peyton v. Ro^e, 41 Mo. 257 89, 98, 504 Pfiffner v. Krai)tVl, 2« Iowa, 27 557, 560 Pfistcr r. Watle, 50 Cal. 43 463 Pfohl V. Simjtson, 74 N. Y. 137 300, 30'.) Phaien v. Dingee, 4 E. D. Smith, 379 302. 456 Pilaris V. Carver, 13 B. Mon. 230 5:M Phelps V. Hughes, 1 Li. An. 320 473 V. Wait. 30 N. Y. TH 303, .3('>7 Phillipi V. Th<)m[)son. 8 Greg. 428 726 Phillips V. Gorliani, 17 X. Y. 270 83, HO. 9'J, 100, 112,129,501, 520 Phillips V. Jarvis, 19 Wis. 204 741 V. Van Schaick, 87 Iowa, 229 169, 616 Phillipson v. Catty, 6 Hare, 26 313 Phoeni.x v. Lamb, 29 Iowa, 352 659 Piioenix Bank v. Donnell, 40 N. Y. 410 251, 751 Pickering v. Miss. Val. Nat. Tel. Co., 47 Mo. 457 491, 493 Pickersgill v. Lahens, 15 Wall. 140 358 Pico V. Cuyas, 47 Cal. 174 130 Pier V. Finch, 29 Barb. 170 744 V. Fond du Lac, 38 Wis. 470 325, 349 V. HeinrichofFen, 52 Mo. 333 557, 560, 615 Pierce v. Carey, 37 Wis. 232 140, 617, 620 V. Faunce, 47 Me. 507 424 V. Milwaukee, &c. Co., 38 Wis. 253 320, 416 Piercy v. Sabin, 10 Cal. 22 743 Pierson v. Milwaukee, &c. R. R., 45 Iowa, 239 641 V. Robinson. 3 Swanst. 139 431 Pike V. King, 10 Iowa, 49 761 Pinckney v. Keyler, 4 E. D. Smith, 409 799 Pine Valley v. Unity. 40 Wis. 682 219, 586 Piser V. Stearns, 1 Hilt. 80 827 Pitcher v. Hennessev. 48 N. Y. 415 115 Pittsburgh, &c. R.'R. v. Keller, 49 Ind. 211 570 I'. Moore, 33 Ohio St. 384 577 V. Nelson. 51 Ind. 150 580 V. Theobald, 51 Ind. 239 587 Plath V. Boansdorff, 40 Wis. 107 740 Platner r. Patchin. 19 Wis. 333 380 Piatt V. Jante, 35 Wis. 029 349 V. Stout, 14 Abb. Pr. 178 184 Poeiilman r. Kennedy, 48 Cal. 201 475 Roister ?;. Rucker, 16 Kan. 115 608 Pomeroy v. Benton, 57 Mo. 531 602, 604, 605 Pond V. Davenport, 45 Cal. 225 750 V. Waterloo Agric. Works, 50 Iowa, 593 345 Pont V. Davis, 35 Wis. 631 804 Poole v. Gerrard, Cal. 71 295 V. Marsh, 8 Sim. 528 305 Poor V. Clarke, 2 Atk. 515 305. 530, 531 Pope V. Cole, 55 N. Y. 124 357, 358 V. Melone, 2 A. K. iMarsli. 239 305 Port V. Russell. 36 Ind. 00 685 Porter v. Bleiler, 17 Barb. 149 203 v. Fletcher, 25 Minn. 493 250, 271 r. (iarrissomio, 51 Cal. 559 470 Portland r. Baker, 8 Oreg. 356 586 Postlewaitc v. Howes, 3 Iowa, 305 405 Potter r. Earnest, 45 Ind. 416 639, 755 V. Ellice, 48 N. Y. 321 340,420 V. Phillips, 44 lown, 353 404, 432 Potttrioser r. Dorn, 18 Minn. 204 676 Powell r. Finch, 5 Duer. (i06 463, 464 V. Powell, 48 Cal. 234 362, 451, 457 V. Ross, 4 Cal. 197 393, 401 TABLE OF CASES CITED. Ivii Powers V. Armstrong, 35 Ohio St. 357 72G, 740 V. Bunicratz, 12 Oliio St. 273 24'.) Powis V. Smitli, 5 H. & A. 851 229 Pratt V. Menkens, 18 Mo. 158 840 V. Radford, 52 Wis. 114 208 Prentice v. Jansson, 7 Hun, 86 409 Presb. Soc. v. Beach, 8 Ilun, 044 213, 215 Preston i-. Uoherts, 12 Bush, 570 580,729 Prettyman v. Supervisors, 19 111. 400 174 Price V. Grand llapids, &c. li. R., 18 Ind. i:;7 728 V. Price, 75 N. Y. 244 180 V. Sanders, 00 Ind. ;310 041 Prindle i-. Aldrich, 13 How. Pr. 465 628 V. Carutiiers, 15 N. Y. 425 » 602 Prior V. Madi>,^an, 51 Cal. 178 076 Pritchard i: Hicks, 1 Paii,'e, 270 310, 410 Proctor V. Baker, 15 Ind. 178 390, 399 y. Cole, 06 Ind. 576 604 V. Rief, 52 Iowa, 592 614 Prost I'. More, 40 Cal. 347 691, 749 Prouty V. Eaton, 41 Barb. 409 771, 777 V. L. S. &c. R. R., 85 N. Y. 272 463 V. Swift, 51 N. Y. 594 622 Pruyn v. Black, 21 N. Y. 300 455 Pugh V. Currie, 5 Ala. 446 310 V. Ottenheimer, 6 Oreg. 231 752 Pugsley r. Aikin, 11 N. Y. 494 503 PuUen c. Heron Min. Co., 71 N. C. 567 398 Purnell v. Vaughan, 80 N. C. 46 843 Purple V. Hudson R. R. R., 4 Duer, 74 185 Putnam v. Bicknell, 18 Wis. 333 288 V. Ross, 55 Mo. 116 434 V. Tennyson, 50 Ind. 456 379, 668 V. Wise, 1 Hill, 234 631, 632 Pyncent v. Pyncent, 3 Atk. 571 316 Q- Quaid V. Cornwall, 13 Bush, 601 Quassaic Bank r. Waddell, 3 N. Y. S. C. 680 Quebec Bank v. Weyand, 30 Ohio St. 120 113, 121, Quigley v. Merritt, 11 Iowa, 147 Quillen v. Arnold, 12 Nev. 234 173, Quin V. Lloyd, 41 N. Y. 349 714^ V. Moore, 15 N. Y. 432 Quinn v. Smith, 49 Cal. 163 Quinney v. Stockbridge, 33 Wis. 505 Quintard v. Newton, 5 Robt. 72 R. 643 370 777 701 533, 540 741 182 836 578 018 Racine Bank v. Keep, 13 Wis. 209 824, 820 Racouillat c. Rene, 32 Cal. 450 674, 675 Radde >: Ruckgaber, 3 Duer, 684 085, 725 Radford & So. Mut. Life Ins. Co., 12 Busli, 434 644 Ragan v. Simpson, 27 Wis. 355 626 Rain v. Roper, 15 Fla. 121 421 Rainey v. Sinizer, 28 Mo. 310 240, 270, 274 Rankin v. CoUins, 50 Ind. 158 489 V. Major, 9 Iowa, 297 306, 392, 398 Ransom v. Stanberry, 22 Iowa, 334 616 Hanson v. Anderson, 9 S. C. 438 657, 729 Raspillier v. Brownson, 7 Louis. 231 473 Rathbone v. Hooney, 58 N. Y. 463 399, 400 744 823 212 V. McConnell, 20 Barb. 311 Rawley v. Woodruff, 2 Lans. 419 Rawlings v. Fuller, 31 Ind. 255 Rawson v. Penn. R. R., 2 Abb. Pr. N. s. 220 289 Rayan v. Day, 46 Iowa, 239 040 Raymond v. Hanford, 6 N. Y. S. C. 312 594, 596 V. Pritchard, 24 Ind. 318 732, 751 V. Riciiardson, 4 E. D. Smith 171 __ 722 Rayner v. Julian, Dickens, 677 408 Reab v. McAlister, 8 Wend. 109 769 Read v. Beardslev, 6 Neb. 493 629 V. Decker, 5 Hun, 646 727, 733, 822 V. Jeffries, 16 Kan. 534 362 V. Sang, 21 Wis. 678 249, 292, 339 Ready v. Somrner, 37 Wis. 265 657 Redman v. Malvin, 23 Iowa, 296 794, 796 Reed v. Chubb, 9 Iowa, 178 840 V. Harris, 7 Robt. 151 160, 219 V. Howe, 28 Iowa, 250 537 V. Newton, 22 Minn. 541 121, 832 V. Pi.xley, 25 Minn. 482 008 V. Robertson, 45 Mo. 580 89, 127 V. Stryker, 12 Abb. Pr. 47 406 Reeder v. Say re, 70 N. Y. 180 268, 020 Reedy v. Smith, 42 Cal. 245 500 Rees V. Cupp, 59 Ind 506 604 Reeve v. Fraker, 32 Wis. 243 583, 602 Reeves v. ffimball, 40 N. Y. 299 189, 190, 192 Reid V. Evergreens, 21 How. Pr. 319 441, 443 V. GifFord, Hopk. 416 322 V. Sprague, 72 N. Y. 457 190 Reilly v. Rucker, 16 Ind. 303 840 Reinhardt c. Wendeck, 40 Mo. 577 429 Remillard v. Prescott, 8 Oreg. 37 752 Remington v. King, 11 Abb. Pr. 278 840 Renshaw v. Taylor, 7 Oreg. 315 396 Reubens v. Joel, 13 N. Y. 448 ^ 73, 74 Reugger r. Lindenberger, 53 Mo. 364 285 Revalk v. Kraemer, 8 Cal. 66 380, 402 Revelle r. Claxon, 12 Bush, 558 608 Reynolds v. Hosmer, 45 Cal. 616 V. Lounsbury, 6 Hill, 534 Reynoldson v. Perkins, Amb. 504 Rhoads v. Booth, 14 Iowa, 575 Rhode V. Green, 26 Ind. 83 685, Rhodes V. Alameda Co., 52 Cal. 350 Ricard v. Sanderson, 41 N. Y. 179 Rice V. Hall, 41 Wis. 453 V. O'Connor, 10 Abb. Pr. 362 265 660 426 279 726 586 167, 169 434 837 LVlll TABLE OF CASES CITED. Rice V. Savery, 22 Iowa, 470 1G7, 168, 170, 215, 276 I'. Sniitli, Iowa, 570 174 Rigprs V. Am. Tract Soc, 84 N. Y. 330 748 Rigsbee v. Troos, 21 InJ. 227 500 Ricliarils r. Conper, G Beav. 304 400 r. Darlv, 34 I()wa,427 202 Richardson v. Bates. 8 Ohio St. 257 117 V. Hittle, 31 Iiid. 119 731 V. Iloole, 13 Nev. 4'J2 008 V. Hulhert, 1 Anst. f55 411 V. Means, 22 Mo. 495 77, 78, 104 V. Spencer, 18 B. Mon. 450 314 V. Steele, 9 Neb. 483 727 Richmond v. Dubuque, &c. R. R., 33 Iowa, 422 88, lOG Richmond, &c. T. Co. v. Rogers, 7 Bush, 532 77, 135, 138 Ricliier i\ Poppenliausen, 42 N. Y. 373 357 Riclitmeyer v. Remsen, 38 N. Y. 206 181, 745 Richtmyer v. Richtniyer, 50 Barb. 55 249, 311, 502 Rickard v. Kohl, 22 Wis. 506 837 Ricker v. Pratt, 48 Ind. 73 110, 843 Ricketson v. Richardson, 19 Cal. 3:!1 840 Riddick V. Walsh, 15 Mo. 538 389, 401 Ridenoiir v. Mayo, 29 Oliio St. 138 651 v. Wherritt, 30 Ind. 485 413, 415 491 753 371 314 133 830 Riemer v. Jolinke, 37 Wis. 258 Riley v. Corwin, 17 Iliin, 597 I'. Schawacker, 50 Ind. 592 Rinehart v. Riuehart, 2 McCarter, 44 Rindge r. Baker, 57 N. Y. 209 Ring V. Ogdcn, 44 Wis. 303 Rippstein v. St. Louis, &c. Ins. Co., 57 Mo. 86 Riser r. Snoddy, 7 Ind. 442 Risley v. Wightman, 13 Ilun, 163 Roback v. Powell, 36 Ind. 515 Robbins V. Cheek, 32 Ind. 328 V. Codman, 4 E. D. Smith, 325 V. Deverill, 20 Wis. 142 V. Disiion, 19 Ind. 204 V. Lincoln, 12 Wis. 1 V. Wells, 18 Abb. Pr. 191 Roberts v. Carter, 38 N. Y. 107 V. Evans, 43 Cal 380 V. Johannas, 41 Wis. 616 r. Johnson, 58 N. Y. 613 V. Lovell, 38 Wis. 211 V. Treadweil, 50 Cal. 520 V. Tnnstall, 4 Hare, 257 Wood, 38 Wis. 60 759 728 250 004 170 643 212 170 677 222 198, 202, 840 631, 632 674 363, 367 580 586 414 402 Robertson v. Gr. West. R. Co., 10 Sim. 314 316, 419 V. Rock fort, 21 111. 451 174 V. Soutligatc, 6 Hare, 536 318 Itobins V. Deverill, 20 Wis. 142 162 Robinson r. Allen, 37 Iowa, 27 753 V. l-roxt, 11 M.irb. 536 714, 723 V. Gleason, 53 Cul. 38 463 Robinson v. Howes, 20 N. Y. 84 203 V. Jennings, 7 Bush, 030 356 V. Rice, 20 Mo. 229 525 V. Wheeler, 25 N. Y. 252 281 V. Willoughby, 67 N. C. 84 628 Robson V. Comstock, 8 Wis. 372 601, 602, 605 Rochester v. Alfred Bank, 13 Wis. 432 174 Rochester City Bk. v. Suydam, 5 How. Pr. 216 92, 555, 574 Rock V. Wallace, 14 Iowa, 593 174 Rockwell V. Geery, 6 N. Y. Sup. Ct. 687 410 Rodgers v. Rodgers, 11 Barb. 595 524 Roe V. Angevine, 7 Hun, 679 717, 733 V. Rogers, 8 How. Pr. 356 761 Roehring v. Huebschniann, 34 Wis. 185 503 Rogers v. Gosnell, 58 Mo. 589 167 V. Lafayette Agr. Works, 52 Ind. 296 251, 325, 644 V. Milwaukee, 13 Wis. 610 556, 580 V. Penniston, 16 Mo. 432 83, 130 V. Siiannon, 52 Cal. 99 600 V. Smith, 17 Ind. 323 293, 493, 541 Rohrcr v. Turrill, 4 Minn. 407 160 Kolleston v. Morton, 1 Dr. & W. 171 399 Rollins V. Forbes, 10 Cal. 299 502 V. Rollins, 76 N. C. 264 349 Rolls V. Yate, Yelv. 177 229 Komine v. Romine, 59 Ind. 346 641 Roosevelt v. Draper, 23 N. Y. 318 173 Root V. Taylor, 20 Johns. 137 206 V. Wright, 84 N. Y. 72 169 Roots V. Merriwether, 8 Bush, -397 579 Roper V. McFadden, 48 Cal. 346 746 Rose i: Hurley, 39 Ind. 77 757 V. Madden, 1 Kan. 445 362 V. Page, 2 Sim. 471 308, 400 V. Treadway, 4 Nev. 455 732 V. Williams, 5 Kan. 483 355, 361 Rosecrans ;;. Elsworth, 52 Cal. 509 476 Rosekrans r. White, 7 Lans. 4S6 304. 430 Rosenthal v. Sutton, 31 Ohio St. 406 435 Ross V. Cornell, 45 Cal. 133 130 V. Crary, 1 Paige, 416 310 V. Jolinson, 1 Handy, 388 840 V. Linder, 12 S. C. 592 250, 340, 378 V. Mather, 51 N. Y. 108 140, 017, 621, 622 V. Ross, 25 Hun, 642 657 Rost v. Harris, 12 Abb. Pr. 446 685, 725 Roth V. Palmer, 27 Barb. 652 577, 634, 636 Rothe V. Rothe, 31 Wis. 570 617, 621 Rowe V. Beckett, 30 Ind. 154 128 V. Parsons, (i Ilun, 338 169, 173 V. Smith, 3H How. Pr. 37 375 Rowland v. Phalen, 1 Bosw. 43 215 Rov V. Ilaviland, 12 Ind. 361 432 RoVs V. Vilas. 18 Wis. 169 164, 269 Ru"cker v. Stillnian, 73 Ind. 306 777 Ruckm.an r. Pitcher, 20 N. Y. 9 173, 214 Ruffing V. Tilton, 12 Ind. 259 320 TABLE OF CASES CITED. lix Runk V. St. John, 29 Barb. 585 218 liusli V. Cobbett, 2 Jolins. Cas. 256 0152 Russell V. Allen, 1;J N. Y. 173 270 u. Byron,2 Cal. 80 104,180 V. Conway, 11 Cal. 93 8J0 V. Grimes, 4G Mo. 410 131 V. Lennon, 3'J Wis. 670 208 V. Loonies, 43 Wis. 545 013 V. Mi.xer, 42 Cal. 475 002 V. State Ins. Co., 55 Mo. 585 004 V. Tonilinson, 2 Conn. 200 334 Rutenberg v. Main, 47 Cal. 213 340, 344, 345 liulherford v. Aiken, 3 N. Y. Sup. Ct. 00 153, 181 V. Williams, 42 Mo. 18 89, 98 Rutleilge V. Corbin, 10 Oliio St. 478 243, 273 V. Vanmeter, 8 Bush, 354 027 Ryan v. MuUinix, 45 Iowa, 631 250 V. Spiingtield Ins. Co., 46 Wis. 071 614 V. State Bk., 10 Neb. 524 344, 355 Ryder v. Tlinmas, 32 Iowa, 56 848 Ryerson v. Hendrie, 22 Iowa, 480 280, 355, 362, 794 S. Sabin v. Austin, 19 Wis. 421 639 Sacramento Savings Bank v. Hynes, 50 Cal. 105 586 Sager v. Blaine, 44 N. Y. 445 617, G22 y. Nichols, 1 Daly, 1 340,353 Sainstry v. Grammer, 2 Eq. Cas. Abr. 165 303 Sale V. Bugher, 24 Kan. 432 843 V. Crutchfield, 8 Bush, 636 106, 490, 493 Saline Co. v. Sappington, 64 Mo. 72 644 Salinger v. Lusk, 7 How. Pr. 430 677 Saltus V. Kip, 5 Duer, 646 738 Salviilge v. Hyde, 5 Madd. Ch. 138 527 Sample v. Griffith, 5 Iowa, 376 840 V. Howe, 24 Ind. 208 804 Sampson v. Siiaelfer, 3 Cal. 196 135 Samuels v. Blancliard, 25 Wis. 329 264, 275, 625, 620 San Benito Co. v. Whitesides, 51 Cal. 416 219 Sanders v. Clason, 13 Minn. 379 167, 524 V. Samlers, 39 Ind. 207 668 V. Yonkers, 63 N. Y. 489 432 Sandlord v. Jodell, 2 Sm. & Gifif. 176 301 V. Travers, 40 N. Y. 140 833 Sands i-. St. John, 36 Barb. 628 642, 752 V. Wood, 1 Iowa, 203 893, 397 Sanford v. McCreedy, 28 Wis. 103 729 V. Wood, 49 Ind. 105 379, 480 Sargent v. Ohio, &c. R. R., 1 Handy, 52 173 V. Railroad Co., 32 Ohio St. 449 657, 732 V. Wilson, 5 Cal. 504 380, 402, 475 Satterthwaite v. Board of Comm'rs, 70N.C. 153 384 Sauer v. Steinbauer, 14 Wis. 70 502 Sauerhering v. Iron Bridge &c. R. R., 25 Wis. 447 174 Saulsbury v. Alexander, 50 Mo. 142 602, 003, 005, 606 Saumarez v. Saumarez, 4 M. & C. 336 318 Saunders v. Ciiamberlain, 13 Hun, 568 733 V. Druce, 3 Drew. 140 303 Savage v. Corn Exch. Ins. Co., 4 Bosw. 2 160, 751 V. O'Neil, 44 N. Y. 298 377 Saville V. Tancrod, 1 Ves. Sen. 101 313 Sawyer ?-. Chambers, 11 Abb. Pr. 110 464 V. Warner, 15 Barb. 282 674 Sayor v. Clavton, 1 Lutw. 695 330 Say res v. Linkart, 25 Ind. 145 668, 840 Seantlin v. Allison, 12 Kan. 85 215 Scarry v. Eldridge, 63 Ind. 44 396 Schadt V. Heppe, 45 C^al. 433 393 Schaetzel v. Germantown, &u. Ins. Co., 22 Wis. 412 677 Schafer v. Reilly, 50 N. Y. 67 190, 192 V. Schafer, 68 Ind. 374 804 Scharz v. Oppold, 74 N. Y. 307 718 Sciiaus V. Man. Gas. Co., 14 Abb. Pr. N. s. 371 714,722 Scheer v. Keown, 34 Wis. 349 714, 725, 745 Schehan v. Malone, 71 N. C. 440 670 Scheldt V. Sturgis, 10 Bosw. 606 467 Schermerhorn v. Barhydt, 9 Paige, 28 410 V. Van Allen, 18 Barb. 29 714,718, 721 Schenck v. Butsch, 32 Ind. 338 503 V. EUingwood, 3 Edw. Ch. 175 313, 626, 829 Scheunert v. Kaehler, 23 Wis. 523 812 SchiefEelin v. Hawkins, 1 Dalv, 286 840 Schiffer v. Eau Claire, 51 Wis. 385 263,641 Schilling v. Rominger, 4 Col. 100 87, 104 576, 580 Schmidt v. Coulter, 3 Minn. 492 838 Sclmaderbeck v. Worth, 8 Abb. Pr. 37 810, 831 Schneider v. Sclmltz, 4 Sandf. 664 761 Schnier v. Fay, 12 Kan. 184 153, 185 Schnitzer v. Cohen, 7 Hun, 665 522, 541 Schofield r. Eighth School Dist., 27 Conn. 499 174 Scholefield n. Heafield, 7 Sim. 667 431 Scholey v. Halsey, 72 N.Y. 578 358 School Directors v. Coe, 40 Wis. 103 173, 219 School Dist. V. Pratt, 17 Iowa, 16 339 V. Shoemaker, 5 Neb. 36 714 Schoonover v. Hinckley, 46 Iowa, 207 609 ('.Quick, 17 In.l. urn 840 Schubart v. Harteau, 34 Barb. 447 780, 796, 797, 838 Scliular V. Hudson River R. R., 38 Barb. 653 714, 722 Ix TABLE OF CASES CITED. Schnltz r. Winter. 7 Nev. 130 322, 525 Schurick v. Kollman, 50 Ind. 336 5«7 Bcliuarz v. OppoM, 74 N. Y. 307 727 Scotield 1-. Dorsclien, 72 N. Y. 491 727 V. State ^■atiullal Bank, 9 Neb. 651 V. Whitelegge, 49 N. Y'. 259 001,606, 607, 643 Scott r. B. & S W. R. R.. 52 Iowa, 18 577 V. Cliickasaw, 54 Iowa, 47 62!) V. Coiiwav, oS N. Y. 619 357 V. Crawford, 12 Ind. 411 83 V. Gill, 19 Iowa, 187 167 I'. Goodwin, 1 B. & P. 67 228, 229 V. Guernsey, GO Barb. 163 304, 430 V. Indianapolis, &c. Works, 48 Ind. 75 404 V. Morse, 54 Iowa. 732 714, 717 i;. Robards, 67 Mo. 289 556, 562, 576, 580, 639 r. Timborlake, 83 N. C. 382 789 Scribner v. Allen, 12 Minn. 148 174 Seager r. Burns, 4 Minn. 141 345. 420 Seaman v. Goodnow, 20 Wis. 27 536 1-. Jolnison, 46 Mo. Ill 131 V. Reeve, 15 Barb. 454 840 Sears v. Tavlor, 4 Col. 38 587 Seaton v. Davis, 1 N. Y. Sup. Ct. 91 223 Sebbitt I'. Stryker, 02 Ind. 41 604 Sebrin-: >: Mersereau, llopk. 501 428 Becor v. IvL-ller. 4 Duor. 410 272 V. Lord, 3 Keves. 525 107, 169 Sedwick v. McKim, 53 N. Y. 307 140 Seeley v. Engell, 13 N. Y. 542 118, 660 Seip V. Tilglinian, 23 Kan. 289 208 Selby V. Ponifrct, 1 J. & H. 3.36 308 Selden v. Pringle. 17 Barb. 458 163 Scllar V. Sage, 12 How. Pr. 531 60!) Selleck i-. Griswold, 49 Wis. 39 788 Sellon V. Bradcn, 13 Iowa, 305 362 Sells V. Hubbell, 2 Jolins. Ch. 394 411 Selover v. Coe, 03 N. Y. 438 869, 407 Semple v. Lee, 13 Iowa, 304 392, 393 Sentinel Co. r. Tlionison, 38 Wis. 489 491 Servante i-. James, 10 B. & C. 410 227, 228 Settenibre i-.Putnani, 30Cal. 490 418, 431,404 Seymour v. Carpenter, 51 Wis. 413 263 V. Davis, 2 Sandf. 239 709 !,'. Duidiam, 24 Hun, 93 199 Se.xton V. miatncs, 13 Wis. 99 043 Shafer i'. Bronenberg, 42 Ind. 89 732 V. Moriartv, 40 Ind. 9 354 V. State. 4it Ind. 460 041 Shaker v. Caldwell. 27 Ind. 370 130 Shane i-. Francis. :!0 Ind. 92 152, 100 1-. Lowrv,4s Ind. 205 340,371 Shank V. TtM-pie, 33 Iowa, 189 000 Sluinnon v. Pearson, 10 Iowa, 588 7()1 I'. Wilson, PtInd. 112 837.840 Sharp V Clifford, 44 Ind 275 379 V. Miller. 54 Cal. 32!l 040 Shartlc i: .Mmneay)o|is, 17 Minn. 308 043 Shatto(.kf. Shatt.M-k, L. K.2F.> Cal. 92 G75, Sizer v. Miller, 'J Paige, 005 Skidmore v. Collier, 8 Hun, 50 407, Skinner v. Clnte, 9 Nev. 342 642, Slater V. Ma craw, 12 Gill & Johns. 205 Slattery v. llall, 48 Cal. PJl Slayback v. Jones, 9 Intl. 470 770, 791, 799, 824, Slingsby's Case, 5 Kep. 19 a 227, Sloan V. McDowell, 71 N. C. 350 790, V. N. Y. C. R. K., 4 N. Y. Sup. Ct. 135 Slocum V. Barry, 34 How. Pr. 320 Sloman v. Sclimidt, 8 Abb. Pr. 5 Slone V. Slone, 2 Met. 339 Slutts V. Chafee, 48 Wis. 017 Small V. Atwood, 1 Younge, 458 302, V. Robinson, 9 Hun, 418 276, V. Sloan, 1 Bosw. 852 Smart v. Bradstock, 7 Beav. 500 Smead v. Chrisfieid, 1 Disney, 18 820, Smetters i'. Kainey, 14 Ohio St. 287 Smith V. Allen, 1 Lans. 101 V. Bodine, 74 N. Y. 30 V. Bolden, 33 Beav. 262 V. Chicago & N. W. R.R., 23 Wis. 267 V. Countryman, 30 N. Y. 655 V. Denman, 48 Ind. 05 i;. Dennett, 15 Mirm. 81 002, V. Douglass, 15 Abb. Pr. 260 r. Dunning, 61 N. Y. 249 V. Felton, 43 N. Y. 419 V. Fife, 2 Neb. 10 V. Freeman, 71 Ind. 229 V. Fo.x, 48 N. Y. 674 V. Hall, 67 N.Y. 48 726, 744, 810, V. Harris, 43 Mo. 557 V. Holmes, 19 N. Y. 271 V. Howe, 31 Ind. 233 V. Kennett, 18 Mo. 154 V. Usher, 23 Ind. 500 V. Moberley, 15 B. Mon. 70 V. Nelson, 62 N. Y. 286 V. Orser, 43 Barb. 187 V. Peckham, 39 Wis. 414 V. Rowe, 4 Cal. 6 V. Schibel, 19 Mo. 140 V. Schulting, 14 Hun, 52 V. Smith, 33 Mo. 557 V. Snow, 3 Madd. 10 310, 312 V. Steinkamper, 16 Mo. 150 V. St. Joseph, 55 Mo. 456 V. Supervisors, 45 Wis. 686 V. Van Ostrand, 64 N. Y. 278 V. Watson, 2 B. & C. 401 V. Weage, 21 Wis. 440 V. Wells, 20 How. Pr. 158 V. West, 5 Litt. 48 V. Whitney, 22 Wis. 438 Smither v. Calvert, 44 Ind. 442 199, 163, 106, 492, 251, 640 121 761 406 431, 499 690 330 602 786, 828 228 797 280 218 593 832 268 530 632 184 314 840 339 375 104 314 165 009 085 605 641 377 789 828 604 199 830 187 751 379 181 739 119 580 578 740 77 153 320 130 531 840 293 608 282 795 465 760 307 628 379 Smitliies v. Harrison, 1 Ld. Raym, 727 Smock V. Harrison, 74 Ind. 348 Snow r. Howard, 35 Barb. 55 Snowden v. Wilas, 19 Ind. 10 602, 659, Snyder v. Baber, 74 Ind. 47 V. Webb, 3 Cal. 83 Sohier v. Williams, 1 Curtis, 479 Sohn V. Marion, &c. Co , 73 Ind. 78 Sorsbie v. Park, 12 M. & W. 147 Sortore v. Scott, 6 Lans. 271 321, 411, Sourse v. Marshall, 23 Ind. 194 Southal V. Shields, 81 N. C. 28 431, South Side Ass'n v. Cutler, &c. Co., 64 Ind. 500 Southwick V. Fishkill Bk., 84 N. Y. 420 Spahr V. Nicklaus, 51 Ind. 221 Spalding v. Alexander, 6 Bush, 160 V. Black, 22 Kan. 55 Sparks v. Heritage, 45 Ind. G6 685, Sparman v. Keim, 83 N. Y. 245 140, Spears i'. Ward, 48 Ind. 541 Speer v. Bishop, 24 Ohio St. 598 V. Crawter, 2 Meriv. 410 Spence v. Hogg, 1 Coll. 225 317, I'. Spence, 17 Wis. 448 Spencer v. Babcock, 22 Barb. 326 V. Sheehan, 19 Minn. 338 Speyer v. Ihmels, 21 Cal. 280 Speyers v. Fisk, 6 N. Y. Sup. Ct. 197 Spicer v. Hunter, 14 Abb. Pr. 4 405, Spink V. McCall, 52 Iowa, 432 Spinners v. Brett, 38 Wis. 648 Spooner i-. Keeler, 51 N. Y. 627 Spousenberger v. Lemert, 23 Kan. 55 Spragg V. Binkes, 5 Ves. 587 Springer v. Cabell, 10 Mo. 640 V. Clav Co., 35 Iowa, 241 V. Dwyer, 50 N. Y. 19 Vanderpool, 4 Edw. Ch 760, ;62 Springsteed v. Lawson, 14 Abb. Pr. 828 Squires v. Seward, 16 How. Pr. 478 Stack I'. Beach, 74 Ind. 671 Stadier v. Parmelee, 10 Iowa, 23 Stafford V. London, 1 P. Wms. 428 V. Nutt, 51 Ind. 535 344, 714, Stair V. Cragin, 24 Hun, 177 Stalcup I'. Garner, 26 Mo. 72 Staiey v. Ivory, 66 Mo. 74 Stall V. Wilbur, 77 N. Y. 158 266, Stanback v. Rufford, 2 Mont. 565 Stanberry v. Smythe, 13 Ohio St. 495 Standish v. Dow, 21 Iowa, 363 391, Stanford v. Davis, 54 Ind. 45 V. Stanford, 42 Ind. 485 Stansfield v. Hobson, 16 Beav. 189 St. Anthony Falls Co. v. King Bridge Co., 23 Minn. 186 St. Anthony Mill Co. v. Vandall, 1 Minn. 246 165, Stanton v. Kirsch, 6 Wis. 338 705 608 361 751 004 288 316 644 228 ,600 448 463 533 614 534 804 268 723 018 640 613 305 420 669 791 280 475 358, 362 407 629 629 737 830 315 130 753 790 411 538 744 577 840 304 740 675 525 732 268 727 840 400 641 370 305 218 283 Lxii TABLE OF CASES CITED. Stanton v. Leland, 4 E. D. Smith, 81 Starr v. Cragiii, 24 Hun, 177 Starbuck v. Dunklce, 10 Minn. 173 State V. Bailev, 7 Iowa, 890 V. Bartlet't, 68 Mo. 581 V. Cason, 11 S. C. 392 V. C. r. K. U., 9 Nev. 79 V. Cliamberliii, 54 Mo. 338 V. Co. Judge, 7 Iowa, 186 V. Dubuelet, 22 La. An. 365 1-. Graham, 23 La. An. 402 V. J. r. & M. K. K., 15 B^la. 201 182 690 6(59 174 608 608 733 729 174 473 473 345, 384 152, 166 524 121 I'. .Johnson, 52 In.l. 197 V. Ivruttschnitt, 4 Xev. 178 V. IMeaglier, 44 Mo. 356 V. Milwaukee, &c. R R., 44 Wis 579 V. Moore, 19 Mo. ,369 V. Newlin, 69 In.l. 108 V. North. Belle Min. Co., 15 Neb. 385 i;. Orwig, 34 Iowa, 112 j;. Russell, 5 Neb. 211 V. Sappinston, 68 Mo. 454 V. Williams, 48 Mo. 210 State V. Y. J. S. M. Co., 14 Nev. 220 Steadman v. Guthrie, 4 Met. (Ky.) 147 Stearns v. Martin, 4 Cal. 227 Stebbins v. GoUithwaite, 31 Ind. 159 Steele V. Etheridge, 15 Minn. 501 Steeple v. Downing, 60 Ind. .368 Stelinian v. Crull, 26 Ind. 436 Steinhart v. Pitclier, 20 Minn. 102 Stepank r. Kula, 36 Iowa, 563 279, 291 Stephens r. Magor, 25 Wis. 533 502 Stephenson v. Ballard, 50 Ind. 176 586, 588, 591 Stern v. Katz, 38 Wis. 136 587 Sternberger v. McGovern, 56 N. Y. 12 101, 502 Stetlon V. Chicago, &c. R. R., 49 Wis. 640 217 657 G04 349, 351 675 250 750 639 276 799 728 777 727 128 827 609 Stevens v. Brooks, 23 Wis. 19( V. Campbell, 21 Ind. 471 V. Chance, 47 Iowa, 602 V. Mayor, 84 N. Y. 296 V. Parish, 29 Ind. 260 V. Thompson. 5 Kan. 305 Stewart v. Beale, 7 Ilun, 405 V. Carter, 4 Neb. 564 V. Erie, &c. Co., 17 Minn. 372 V. Iloag, 12 Ohio St. 623 V. Patrick, 68 N. Y. 450 Stich V. Dickinson, 38 Cal. 608 Still 1-. Hall, 20 Wend. 51 Stilwcll V. ('happen, 30 Ind. 72 V. Hiirlhert, 18 N. Y. 374 V. Kellf)gp, 14 Wis. 461 V. McNeclv, 1 Green Ch. .305 Stimson i-. Wlnte, 20 Wis. 562 Stilt V. Little, 63 N. Y. 427 Stix V. Matthews, 63 Mo. 371 608 448, 626 390, 395 536, 541 85, 96 379 742 320 96, 499 442, 443 725, 745 289 469, 472 769 840 217 502 313 288 618, 620 586 St. John V. Griffith, 2 Abb. Pr. 198 172, V. Hard wick, 11 Ind. 251 V. Pierce, 22 Barb. 362 St. Louis, &c. R. R. V. Mathias, 50 Ind. 65 Stockett V. Watkins, 2 Gill & ,T. .326 Stockton V. Stockton, 73 Ind. 510 Stockton, Bk. of v. Howland, 42 Cal. 129 Stoddard v. Treadwell, 26 Cal. 294 Stoddert v. Ward, 31 Md. 562 Stokes V. Geddes, 46 Cal. 17 V. Scott Co., 10 Iowa, 166 Stone V. Buckner, 12 8m. & M. 73 V. Fouse, 3 Cal. 292 104, r. Lewman, 28 Ind. 97 Stone's Adm'r v. Powell, 13 B. Mon. 342 Storm V. Davenport, 1 Sandf. Ch. 135 Stout V. Noteman, 30 Iowa, 414 V. St. Louis, &c. Co., 52 Mo. 342 Stowell V. Drake, 3 Zabr. 310 V. Eldred, 39 Wis. 614 614, 788, V. Otis, 71 N. Y. 36 727, Streatfield v. Ilalliday, 3 T. R. 782 Street v. Beal, 16 Iowa, 68 391, 399, V. Bryan, 65 N. C. 619 Streeter v. Chicago, &c. R. R., 40 Wis. 294 608, Strickland v. Strickland, 12 Sim. 463 Striker v. Mott, 2 Paige, 387 Stringfellow v. Alderson, 12 Kan. 112 Stringfield r. Graff, 22 Iowa, 438 Stroebe v. Fehl, 22 Wis. 347 Stronach v. Stronach, 20 Wis. 129 Strong V. Clem, 12 Ind. 37 16,3, V. Downing, ,34 Ind. 300 371, V. Hoos, 41 Wis. 659 Stroup V. State, 70 Ind. 495 611, Struman )-. Uobb, 37 Iowa, 311 Strunk v. Smith, 36 Wis. 631 Stucker v. Stucker, 3 J. J. Marsh. 301 Stnple V. Downing, 60 Ind. 478 Sturges V. Hurton, 8 Ohio St. 215 Sturm V. Atlantic Mut. Ins. Co., 63 N. Y. 77 Sturman v. Stone, -31 Iowa, 115 Sturtevant v. Brewer, 9 Abb. Pr. 414 Suber V. Alien, 13 S. C. 317 Suiter tJ. Turner, 10 Iowa, 517 Sullivan v. Byrne, 10 S. C. 122 r. Davis, 4 Cal. 291 V. Sullivan, 4 Hun, 198 V. Sullivan Co., 14 S. C. 494 Sully V. Goldsmith, 49 Iowa, 690 Summers ;;. Farish, 10 Cal. 347 V. Hoover, 42 Ind. 153 V. Hutson, 48 Ind. 228 468, V. Vaughan, 35 Ind. 323 Sumner v. Coleman. 20 Ind. 486 390, Sunnian v. Brewin, 52 Ind. 140 ,609 465 525 586 632 777 358 824, 826 174 578 174 420 130 668 740 411 363 593, 596 229 804 732 331 403, 437 827 614 410 304 660 307 624 303 184 310 (500 614 119 482 305 175 640 216 585 463 641 399 788 534 304 533 729 171 726 469 668 393 874 TABLE OF CASES CITED, Ixiii Supervisors v. Decker, 30 Wis. 624 99, 103, 617, 621, 022, 627 V. Deyoe, 77 N. Y. 2iy V. Hall, 42 Wis. 59 V. Hubbarfl, 45 111. 139 V. Kirby, 25 Wis. 498 219 V. O'Mally, 46 Wis. 35 V. Walbridge, 38 Wis. 179 384, Suringer v. Paddock, 31 Ark. 528 Sussdorf V. Sclimidt, 55 N. Y. 319 481 Sutherland v. Carr, 85 N. Y. 105 Sutton V. Stone, 2 Atk. 101 Suydam v. Moore, 8 Barb. 358 .Swain V. Duane, 48 Cal. 358 Swarthout v. Ciiicago, &c. K. R., 49 Wis. 625 Swasey n. Antram, 24 Ohio St. 87 Sweet V. Ingerson, 12 How. Pr. 331 510, 520, V. Miteliell, 15 Wis. 641 V. Tuttle, 14 N. Y. 465 740, Sweezey v. Collins, 36 Iowa, 589 Swenson v. Cresop, 28 Oliio St. 668 Swift V. Ellsworth, 10 Ind. 205 159, 170, 221, V. Fletcher, 6 Minn. 550 V. KinjTsley, 24 Barb. 541 V. Swift, 46 Cal. 266 Switz V. Black, 45 Iowa, 597 96, 628 424 219 174 584 641 499, 509 576, 604 696, 613 219 426 367 288 268 378 508, 538 626 7-59 613 733, 843 160, 751 791 643 218 475 Tabler v. Wiseman, 2 Ohio St. 207 430 Tabor u. Mackee, 58 Ind. 290 804, 843 Tabue v. McAdams, 8 Bush, 74 352 Taggart v. Rislev, 3 Oreg. 306 665 TahUor v. Prendergast, 3 Hill, 72 172 Tait V. Culbertson, 57 Barb. 9 373 Talbert v. Singleton, 42 Cal. 390 117 Tallman v. Hollister, 9 How. Pr. 508 467 Tanguay v. Felthouser, 44 Wis. 30 629 Tanner v. Niles, 1 Barb. 560 428 Tarbox v. Supervisors, 34 Wis. 558 753 Tarwater v. H. & St. J. Pv. K., 42 Mo. 193 831 Tasker v. Small, 3 My. & Cr. 63 316, 419 Tassell r. Smith, 2 De G. & J. 713 308 Tate V. Ohio, &c. R. R., 10 Ind. 174 170, 245, 322 Taylor v. Adair, 22 Iowa, 279 469, 471 V. Bocdicker, 22 La. An. 79 473 V. Collins, 51 Wis. 123 250 V. Fickas, 64 Ind. 167 282 V. Mayor, 82 N. Y. 10 836 V. Mayor, 20 Hun, 292 199 V. Root, 4 Keves, 335 795 V. Stowell, 4 Aletc. (Ky.) 175 840 V. Thompson, 42 111. 9 174 Teague v. Fowler, 56 Ind. 569 804, 810 Teal V. Wood worth, 3 Paige, 470 428 Tell V. Beyer, 38 N. Y. 161 643, 743 Ten Broeck v. Orchard, 74 N. C. 409 113, 115 Tendesen v. Marshall, 8 Cal. 440 535 Ten Eyck i-. Casad, 15 Iowa, 524 391, 399 V. Mayor, 15 Iowa, 486 174 Tennant v. Pfister, 51 Cal. 511 250, 261 Tenney v. State Bank, 20 Wis. 152 102, 624 Terhune v. Terhune, 40 How. Pr. 258 806 Terrell v. Walker, m N. C. 244 769 Terret v. Sharon, 34 Conn. 105 174 Territory v. Cox, 3 Mont. 197 173 V. Hildebrand, 2 Mont. 426 344 Terry r. Hammond, 47 Cal. 32 378 V. Musser, 68 Mo. 477 580 Terwilliger v. Wheeler, 35 Barb. 620 171 Tewsbury v. Bronson, 48 Wis. 581 629 V. Schulenberg, 41 Wis. 584 644 Texier v. Gouin, 5 Duer, 389 714, 741 Thatcher v. Cannon, 6 Bush, 541 840 V. Candee, 33 How. Pr. 145 304, 313 V. Haun, 12 Iowa, 303 435 V. Heisey, 21 Ohio St. 668 616 Thomas v. Bennett, 56 Barb. 197 223 V. Dunning, 5 De G. & S. 618 306 V. Kennedy, 24 Iowa, 397 424 V. Nelson, '69 N. Y. 118 613 i;. Runisey, 6 Johns. 32 334 V. Wood, 61 Ind. 1.32 2-50 Thompkins v. White, 8 How. Pr. 520 534 Thompson v. Erie H. R., 45 N. Y. 468 729 V. Fargo, 63 N. Y. 479 215 V. Graham, 1 Paige, 384 314 I'. Greenwood, 28 Ind. 327 740, 759 V. Kessel, 30 N. Y. 383 815, 832, 834 V. Killian, 25 Minn. Ill 600, 608 V. Mylne, 4 La. An. 206 473 V. Sickles, 46 Barb. 49 791 V. Sweetser, 43 Ind. 312 723 V. Thompson, 52 Cal. 154 675 V. Toland, 48 Cal. 99 218 V. Tookey, 71 Ind. 296 777 V. Wolfe, 6 Oreg. 808 587 V. Young, 51 Ind. 599 282 Thomson v. Baskerville, 3 Ch. Rep. 215 308 V. Smith, 63 N. Y. .301 306, 421, 434 Thorn v. Sweeney, 12 Nev. 251 586 Tiiornton v. Crowther, 24 Mo. 164 163 V. Knox, 6 B. Mon. 74 307 V. Pigg, 24 Mo. 249 389, 401 Thorp V. Keokuk Coal Co., 48 N. Y. 253 168, 169 Thorpe v. Dickev, 51 Iowa, 676 522, 536 Thurman v. Welles, 18 Barb. 500 186 Tibbetts V. Blood, 21 Barb. 650 221 Tiemever v. Turnginst, 85 N. Y. 516 377 Tift ^.'Buffalo, 1 N. Y. Sup. Ct. 150 174 Tinkler v. Swaynie, 71 Ind. 562 271 Tinkum v. O'Neaie, 5 Nev. 93 339, 354 Tinsley v. Tinsley, 15 B. Mon. 454 799, 814, 824, 828 Tisdale r. Moore. 8 Hun, 19 499 Titus V. Lewis, 33 Ohio St. 304 651 lxi\ TABLE OF CASES CITED. Tobin r. Galvin, 49 Cal. P,i 377, 378 Todd V. Sterrett, 6 J. J. Marsh. 432 315 Toledo, &c. K. K. v. Harris, 4'J Ind 119 Tolnian v. Johnson, 43 Iowa, 127 Tonilinson v. ISIonroe, 41 Cal. 94 Tompkins v. Wadley, 3 N. Y. S. C. 424 738, 747 Tonnelle i-. Hall, 3 Abb. Pr. 205 369 Toombs V. Ilornbuckle, 1 Mont. 286 678 Tonney ''. Tierce, 49 Cal. 306 Toucliard v. Keyes, 21 Cal. 202 Towers v. Moore, 2 Vern. 99 Towle V. Pierce, 12 Mete. 329 Town V. Brinsoif, 47 Iowa, 133 Towner v. Tooley, 38 Barb. 598 369, 440, 443 Townsend v. Bissell, 5 N. Y. Sup. Ct. 583 V. Champernowne, 9 Price, 130 Trabue v. IVlcAdanis, 8 Bush, 74 Tracy v. Ames, 4 Lans. 500 V. Craig, 55 Cal. 91 V. Kelly, 52 Ind. 535 Tradesman's Bank v. McFeely, 61 Barb. 522 526, 540 Trapnall c. Hill, 31 Ark. 345 642, 674, 845 Traster v. Snelson. 29 Ind. 96 668 Travis v. Barger, 24 Barb. 614 738 Tryon v. Baker, 7 Lans. 511 631,632,633 Treadway v. Wilder, 8 Nev. 91 606 Trecothick v. Austin, 4 Mason, 41 418 Trenon i'. Cent. Pac. R. R., 50 Cal. 222 250 Trescott i-. Smyth, 1 McCord Ch. 301 435 Tripp V. Rilev, 15 Barb. 333 266, 270 Trogden v. Deckard, 45 Ind. 572 685, 725 Tronson v. Union Lumber Co., 38 Wis. 202 576 Trowbridge v. Forepaugh, 14 Minn. 133 364, 367, 524 Trov & R R. R. v. Kerr, 17 Barb. 581 628, 643 Troost V. Davis, 31 Ind. 34 83, 86 Truesdell v. Rhodes, 26 Wis. 215 339, 343, 345, 492 586 836 606 629 265 333 310 777, 836 281 421 361 615 642 726 168 Truitt V. Baird, 12 Kan. 420 Trull 1-. Granger, 8 N. Y. 115 Trustees v. Forrest, 15 B. Men V. Gleason, 15 Fia. 384 V. Kellogg, 16 N. Y. 83 I'. ()dlin,8 Ohio St. 293 Tucker >: McCoy, 3 Call, 284 V. Shiner, 24 Iowa, 334 V. Silver, 9 Iowa, 261 Turk V. Ridge, 41 N. Y. 201 Turner >•. Althaus, 6 Xeb. 54 V. Campbell, 59 Ind. 279 V. Dncliman, 23 Wis. 500 V. First Nat. Bank, 20 Iowa, 562 340, 636 V. Hitchcock, 20 Iowa, 310 363, 864, 373 V. Keokuk, Bk. of, 26 Iowa, 662 320 V. Pierce, 34 Wis. 658 96, 103, 502 100 633 106 413 407, 408 556, 602 121, 345 363, 456 411 169 96 199 537, 542 Turner v. Simpson, 12 Ind. 413 840 Turpin v. Eagle Creek, &c. Co., 48 Ind. 45 174 Tyler v. Freeman, 3 Cush. 261 172 V. Granger, 48 Cal. 259 218 V. Kent, 52 Ind. 583 480 V. Willis, 33 Barb. 327 791 Tyson v. Blake, 22 N. Y. 558 282 V. McGuineas, 25 Wis. 656 180, 181 u. Uhl V. Uhl, 52 Cal. 250 541 Umsted v. Buskirk, 17 Ohio St. 113 250, 325, 417 Union, &c. Co. v. Supervisors, 47 Wis. 245 693. Union Bank v. Bell, 14 Ohio St. 200 339, 388, 397 V. Bowman, 15 La. An. 271 473 V. Mott, 27 N. Y. 633 364, 634 V. Roberts, 44 Wis. 373 614 Union Coll. v. Wheeler, 61 N. Y. 88 190 Union Ind. Rub. Co. v. Tomlinson, 1 E. D. Smith, 364 218 Union Nat. Bank v. Carr, 49 Iowa, 359 788 U. S. Express Co. v. Keefer, 59 Ind. 263 604 Univ. of Notre Darae v. Shanks, 40 Wis. 352 608 Upington v. Oviatt, 24 Ohio St. 232 822. 004. Urton V. State, 37 Ind. 339 685 Usher v. Heatt, 18 Kan. 195 587 Usparicha v. Noble, 13 East, 232 172 Utley V. Foy, 70 N. C 303 153, 799 Vail V. Jones, 31 Ind. 467 760, 804, 829. 833 Van Alstyne v. Van Slyck, 10 Barb. 383 Vancleave v. Beam, 2 Dana, 155 Van Brunt v. Day, 81 N. Y. 251 V. Mather, 48 Iowa, 503 Vandersdall i-. State, 65 Ind. 176 Van de Sande v. Hall, 13 How. Pr. 458 Van Deusen v. Young, 29 Barb. 9 Vanderpoel v. Van Valkenburgh, 6 N. Y. 190 317, Vandevoort v. Gould, 36 N. Y. 639 Van Dorcn v. Robinson, 1 C. E. Green, 266 313, V. Relfe, 20 Mo. 455 153, Vanduyn v. Hepncr, 45 Ind. 589 Van Dyke v. Maguire, 67 N. Y. 429 Van Epps v. Harrison, 5 Hill, 63 Van Gieson v. Van Gieson, 10 N. Y. 316 704, 330 817 836 641 219 791 264 404 634 414 166 725 674, 722 769 714 TABLE OF CASES CITED. Ixv Van Lien v. Byrnes, 1 Hilt. 133 Van Liew v. Johnson, C N. Y. S. C. 648 Van Maren v. Jolinson, 15 Cal. 308 Van Metre i'. Wolf, 27 Iowa, 34 Vanneman y. Powers, 56 N. Y. 39 Van Nest v. Latson, 10 Barb. 604 389, Vanover v. Justices, 27 Ga. 354 Van Schaick v. Farrow, 25 Ind. 310 V. Third Ave. R. R., 38 N. Y. 346 Van Steenburgh v. Tobias, 17 Wend. 562 Van Trott v. Wiesse, 36 Wis. 439 Van Vaien v. Lapliani, 5 Duer, 689 V. Russell, 13 Barb. 590 Van Wagenen v. Kemp, 7 Hun, 328 367, Van Wart v. Price, 14 Abb. Pr. 4 Van Wy ;;. Clark, 50 Ind. 259 Varick v. Smith, 5 Paige, 160 Vary v. B. C. R., &c. R. R , 42 Iowa, 246 Vassar v. Thompson, 46 Wis. 345 Vassear v. Livingston, 13 N. Y. 248 780, Vaughn v. Gushing, 23 Ind. 184 Veach v. Scliaup, 3 Iowa, 194 Veeder v. Lima. 19 Wis. 280 Venice, Town of v. Breed, 65 Barb. 597 730, 761, 799, Verdin r. Slocum, 9 Hun, 150 394, Vermeuie v. Beck, 15 How. Pr. 333 Viall V. Mott, 37 Barb. 208 Viburt V. Frost, 3 Abb. Pr. 120 Vieley v. Thompson, 44 111. 9 Vilas V. Mason, 25 Wis. 310 625, 812. Viles V. Bangs, 36 Wis. 131 257, Vilmar v. Scliall, 61 N. Y. 564 Vmcent v. Starks, 45 Wis. 458 Vint V. Padget, 2 De G. & J. 611 Virden v. Ellsworth, 15 Ind. 144 302, Virgin t\ Brubaker, 4 Nev. 31 Vliet V. Sherwood, 38 Wis. 159 609, Von Schmidt?'. Huntinuton, 1 Cal. 55 Voorhis v. Baxter, 1 Abb. Pr. 43 249, V. Child, 17 N. Y. 354 73, 74, 150, Voris V. State, 47 Ind. 345 Vose V. Galpen, 18 Abb. Pr. 96 V. Philbrook, 3 Storv, 335 310, Vrooman v. Turner, 69 "N. Y. 280 V. Jackson, 6 Hun, 326 611, 218 525 287 751 374 394 174 557, 580 107, 169 334 732 837 795 3(i4, 499 265 732 408 364 608 643, 791 434 399 174 833 413 522 520 251 174 .834 270 018 223 308 456 105 029 443 357 247, 357 359 834 312 169 614 w. Wachter v. Quenzer, 29 N. Y. 547 737 Wa Ching v. Constantine, 1 Idaho, 266 96, 110 Waddell V. Darling, 51 N. Y. 327 783, S39 Wade V. Kalbfleisch, 58 N. Y. 282 181 V. Rusher, 4 Bosw. 537 431 V. State, 37 Ind. 180 751 Wadley i^. Davis, 03 Barb. 500 815, 828, 834 Waggoner v. Liston, 37 Ind. 357 683 Wagner v. Ewing, 44 Ind. 441 751 Wakeman v. Grover, 4 Paige, 23 400, 411 Waldron v. Willard, 17 N. Y. 466 182 Walker v. Kynctt, 32 Iowa, 524 128 V. Mauro, 18 Mo. 564 154 i'. McKay, 2 Mete. 294 198, 201 V. Mitchell, 18 B. Mon. 541 534 V. Paul, Stanton's ( K'v.) Code, 37 312 V. Sedgwick, 8 Cal. 398 96, 97, 502 V. Simon, 21 La. An. 669 473 V. Symonds, 3 Swanst. 75 414 Walker's Adm'r v. Walker, 25 Mo. 367 89, 98 V. Walker, 25 Mo. 367 133 V. Wilson, 13 Wis. 522 842 Walkup V. Jehring, 13 Iowa, 306 601 Wall V. Buffalo Water Co., 18 N. Y. 119 679 V. Fairley, 77 N. C. 105 407 V. Whisler, 14 Ind. 228 365 Wallace v. EaUm, 5 How. Pr. 99 404 V. Lark, 12 S. C. 576 732 V. Morss, 5 Hill, 391 634 Wnllenstein v. Selizman, 7 Bush, 175 796 Wallev V. Wallev, 1 Vern. 487 310 Walrod v. Bennett, 6 Barb. 144 744 Walsh V. Hall, m N. C. 233 832, 834 V. Mehrback, 5 Hun, 448 688 V. Wasii. Mar. Ins. Co., 3 Robt. 202 Walsworth v. Johnson, 41 Cal. 61 Walter v. Bennett, 16 N. Y. 250 61 7 216 751 621, 624 604 499 727, 737 519 642 ;;. Fowler, 85 N. Y. 621 Walters v. Con. Ins. Co., 5 Hun, 343 Wandell v. Edwards, 25 Hun, 498 Wandle v. Turnev, 5 Duer, 661 Wands r. SchoofDist., 19 Kan. 204 Wangenheim v. Graham, 39 Cal. 169 824 Wapello V. Biiiliam, 10 Iowa, 39 357 Ward V. Guyer, 3 N. Y. S. C. 58 641 Warden v. Supervisors, 14 Wis. 618 174 Waring v. Ind. Fire Ins. Co., 45 N. Y. 606 216 V. Waring, 3 Abb. Pr. 246 467 Warner r. Myrick, 10 Minn. 91 72-3, 748 V. Steamship Uncle Sam, 9 Cal. 6'.)7 294 V. Turner, 18 B. Mon. 758 165 V. Warren, 46 N. Y. 228 375, 377 Warren v. Burton, 9 S. C. 196 400 ;;. Van Pelt, 4 E. D. Smith, 202 823 Warth r. Radde, 18 Abb. Pr. 396 443,540 Washington Townsiup v. Bonnev, 45 Ind. 77 ' 213 Waterbury v. Westervelt, 9 N. Y. 598 364 Waterman >: Frank, 21 Mo. 108 153 Watervillc Man. Co. r. Br\Mn, 14 Barb. 182 " "27 IXV] TABLE OF CASES CITED. Watkins r. Jones, 28 Ind. 12 714, 746 V. Milwiiukee, 52 Wis. 'JS 4o(i r. Wilcox. 4 Iliin, 220 416, 4;52 Watt I'. Alvord. 25 Ind. 638 390, 401 V. Mayor, I Saiidf. 23 198, 201 Watts r. Coxen, 52 Ind. 155 085 V. McAllisttT. .33 Ind. 204 617, 022 v. Svnies, 1 l)e G. M. & G. 240 308 Watson 'r. (iahbv, 18 B. Mon.058 104 V. IlMzzard,'3 Code U. 218 536 r. Rusliinore, 15 Abb. Pr. 51 028 I'. San Francisco, &c. 11. R., 50 Cal. 5-J3 491, 492 Waugh i: Bhuiientiial, 28 Mo. 462 Wauglionheim v. Graham, 39 Cal. 169 Waukon, &c. U. R. c. Dwyer, 49Iowa, 121 Wausau Boom Co. v. Plurner, 49 Wis. 112 Way r. Bragaw, 1 C. E. Green, 213 Wavland r. Tysen, 45 N. Y. 281 Weaver v. Barden, 49 N. Y. 280 r. Trustees, 28 Ind. 112 Webb V. Bidwoll. 15 Minn. 479 V. Ilelion, 3 Hobt. 625 Weber v. Marsliall, 19 Cal. 447 Webster r. Bebinger, 70 Ind. 9 V. Bond, 9 Hun, 437 V. Drinkwater, 5 Greeid. 32: r. Ilarwinton, '■li Conn. 131 429 835 586 203 319 729 710,723, 749 211, 215 578, 644 431 118 727 110, 113 635 174 V. Tibbits, 19 Wis. 438 810, 345, 041 Weed V. Case, 55 Barb. 534 619 Weeks v. Love, 50 N. Y. 568 277 V. Prvor, 27 Barb. 79 791 r. Smitb, 18 Kan. 508 727 Weetjen v Vibbard, 5 Hun, 265 301 Weld'e r. Butler. 01 N. Y. 245 304 Weil r. Howard. 4 Nev. 384 502 V. Jones, 70 .Mo. 560 790, 798 V. Lankins, 3 Neb. 384 319 Weinlnnd v. Cochran, 9 Neb. 480 96 Weir V. Groat, 6 N. Y. S. C. 444 376 Wcire v. Davenport, 11 Iowa, 49 180, 181 Weise v. Gerner, 42 .Mo. 527 106 Welch V. Ilazelton. 14 How. Pr. 97 843 Weller r. Bergentlial. 50 Wis. 474 014 Welles V. Yates, 41 X. Y. 525 96. 97 Wells V. Cone, 55 Barb. 585 250, 268 r. Ilensliaw, 3 Bosw. 625 839 r. Jewett, 11 How. Pr. 242 524 1-. .McPike, 21 Cal. 215 690 i: Strange. 5 Ga. 22 309 r. Stewart, 3 B.irb. 40 198, 201 Wells, Fargo, & Co. r. Coleman, 53 Cal. 416 586 Welsh V. Darragli, 52 N. Y. 590 017 West r. Cra wlordsville, &c. Co., 19 Ind. 242 727 V. His Creditors, 8 Rob. 123 473 r Moodv, 33 Iowa, 137 837. 840 V. Randall, 2 Mason, 181 310, 312 Westcott V. Ainswortli, 9 Hun, -53 618. 020 Wescott )•. Brown, 1.3 Ind. 83 685, 726 V. Fargo, 61 N. Y. 542 416 Western, &c. Co. v. JEtna Ins. Co., 40 Wis. 373 249 Western Bank v. Sherwood, 29 Barb. 383 189 Western R. R. v. Nolan, 48 N. Y. 513 1G6, 301, 313 W. U. T. Co. V. Fenton, 52 Ind. 1 057 V. Meek, 49 Ind. 53 685 Westervelt v. Ackley, 02 N. Y. 505 836, 843 Westfall V. Dungan, 14 Ohio St. 276 793 West Midland R. Co. v. Nixon, 1 H. & M. 176 816 Weston V. Keighley, Finch, 82 304 (;. Luinlcy, 33"lnd. 486 760 V. McMuilin, 42 Wis. 567 629 V. Weston, 46 Wis. 1-30 378 Wetherell v. Collins, 3 Mad. 255 436 Wetmore v. San Francisco, 44 Cal. 294 155. 161,712, 722, 723, 742 Weyburn v. White, 22 Barb. 82 lb3, 186 Wev mouth v. Bover, 1 Vcs. 416 312 Whalev V. Dawson, 2 Sch. & Lef. 370 528 Whaleii i-. Aldrich, 8 Minn. 8-10 777, 824, 826 Wheable v. Reddick, 79 N. C. 521 804, 810 Wheatlev r. Strobe, 12 Cal. 92 154 Wheele/t'. Billings, 38 N. Y. 263 688, 708, 709 Wheeler v. Bottom, 54 Cal. 302 369 V. Floral Mill Co., 9 Nev. 254 578 Wheelock v. Lee, 64 N. Y. 242 96, 106, 180 V. Pacific, &c. Gas Co., 51 Cal. 223 836 Whitakcr v. Whitnker, 52 N. Y. 368 377 Whitbeck r. Skinner, 7 Hill, 53 769 White r. Allen. 3 Oreg. 103 732 V. Cox, 40 Cal. 169 492 V. Hawkins, 16 La. An. 25 473 I'. Joy, 13 N. Y. 83 556 V. Lyons, 42 Cal. 279 83, 84, 102, 557, 574 i>. Miller, 7 Hun, 427 371,740 r. Moses, 11 Cal. 69 751 V. Parker, 8 Barb. 48 223 V. Pheli)s, 14 Minn. 27 163 V. San Hafael, &c. R. R., 54 Cal. 176 657 V. Smitli. 4 Kan. 183 714, 742 r. Si)encer, 14 N. Y. 247 660, 732 Whiteiiili r. Shickle, 43 Mo. 537 131 Wliiteoak r. Oskaloosa. 44 Iowa, 512 251 Wliiie Sulpiiur Springs Co. v. Holly, 4 W. Va. 597 174 Whiting 1-. Root, 52 Iowa, 292 87, 100, 102 Whitman r. Keith, 18 Ohio St. 134 104, 175 V. Watrv. 44 Wh. 491 600 Whitney v. Allaire, 1 N. Y. 305 769 V. Chicago. &c. R. R., 27 Wis. 327 640 TABLE OF CASES CITED. Ixvii Wliitney v. McKinney, 7 Johns. Ch. 144 418, 437 Whitsett i;. Kershow, 4 Col. 419 407 Wliitted V. Niisli, OU N. C. 51)0 46:J Wliitteinore v. Watts, 7 Hob. 10 473 Wliittenhall v. Korber, 12 Kan. 618 355 Wliitwortli /'. Davis, 1 Ve.s. & 13. 550 530 Widener v. State, 45 Ind. 244 685 Wiebbold v. Herman n, 2 Mont. 009 586 Wigand v. Siokel, 3 Keyes, 120 634 Wiggins V. McDonald, 18 Cal. 126 83, 84, 106, 167, 168 Wilbour V. Hill, 72 N. Y. 36 737 Wilcox V. Hausch, 57 Cal. 139 600 V. McCoy, 21 Ohio St. 655 503 Wild V. Supervisors, 9 How. Pr. 315 220 Wildbahn v. Robidoux, 11 Mo. 659 725 Wilde V. Haycraft, 2 Duval, 309 453 Wilder v. Boynton, 63 Barb. 547 787, 824, 826 Wiles V. Lambert, 66 Ind. 492 604, 043 V. Suydam, 6 N. Y. Sup. Ct. 292 491, 493, 509, 626, 538 Wiley V. Starbuck, 44 Ind. 177 213 Wilkes V. Morehead, Stanton's Code, 31, n. 166 Wilkerson v. Rust, 57 Ind. 172 641 Wilkins v. Batter man, 4 Barb. 47 204 V. Fry, 1 Meriv. 262 298, 314, 530 V. Moore, 20 Kan. 538 600 p. Stid^er, 22 Cal. 231 594 Wilkinson v. Fowkes, 9 Hare, 103 385 V. Hall, 1 Bing. N. C. 713 229 V. Henderson, 1 My. & K. 582 358 V. Parish, 3 Paige, 653 428 Willard v. Fstham, 15 Gray, 328 379 V. Reas, 26 Wis. 540 249, 254, 201, 348, 345, 493 Wilier V. Manby, 51 Ind. 169 727 Willett V. Porter, 42 Ind. 250 341 V Willett, 3 Watts, 277 632 Williams v. Allen, 29 Beav. 292 414 V. Bankhead, 19 Wall. 563 384 V. Boyd, 75 Ind. 286 845 V. Brown, 2 Keyes, 486 155, 198, 202, 840 V. Evans, 6 Neb. 216 651 V. Ewing, 31 Ark. 229 407 V. Franklin, &c. Ass., 26 Ind. 310 727 V. Hayes, 5 How. Pr. 470 93 V. Lowe, 4 Neb. 382 99, 541 V. Meeker, 29 Iowa, 292 393, 395 V. Norton, 3 Kan. 295 153, 161, 185 V. Peabody, 8 Hun, 271 499, 536 V. Peinny, 25 Iowa, 436 174 V. Rogers, 14 Bush, 776 355 V. Scott, 11 Iowa, 475 357 V. Slote, 70 N, Y. 601 85, 100, 102, 104 >. Smith, 22 Wis. 594 322 V. Smitli, 49 Me. 564 437 I'. Tiiorn, 11 Paige, 459 190 V. Van Tuyl, 2 Ohio St. 336 430 V. Weiting, 3 N. Y. Sup. Ct. 439 838 V. Young, 21 Cal. 227 187 Williams Mower, &c. Co. v. Smith, 33 Wis. 630 Williamson v. Dodge, 5 Ilun, 497 V. Brown, 15 N. Y. 354 Willie V. Lugg, 2 Edm. 78 Wills V. Pacific R. R., 35 Mo. 164 V. Simmonds, 8 Hun, 189 371, V. Slade, 6 Ves. 498 V. Wills, 34 Ind. 106 557, 560, Willson V. Cleaveland, 30 Cal. 192 760, Wilson V. Bell, 17 Minn. 61 V. Castro, 31 Cal. 420 339, 526, V. Clark, 20 Minn. 367 161, V. Henry, 40 Wis. 594 V. Houston, 76 N. C. 375 223, V. Madison, 65 Cal. 5 V. Mineral Point, 39 Wis. 160 V. Moore, 1 My. & K. 126 V. Noonan, 35 Wis. 321 V. Root, 43 Ind. 486 V. Runkel, 38 Wis. 526 790, V. Thompson, Stanton's Code 60 Wiltman v. Watry, 37 Wis. 238 Wiltsie V. Northam, 3 Bosw. 162 Winchester v. Mid Hants R. Co., L. R. 5 Eq. 17 Wing i\ Davis, 7 Greenl. 31 V. Dugan, 8 Bush, 583 Wingard v. Banning, 39 Cal. 543 Winona, &c. R. R. v. St. Paul, &c. R. R., 23 Minn. 359 Winslow V. Clark, 47 N. Y. 261 403, V. Dousman, 18 Wis. 456 406, V. Minn., &c. R. R., 4 Minn. 313 V. Urquhart, -39 Wis. 200 V. Winslow, 52 Ind. 8 113, 804, Winter v. Winter, 8 Nev. 129 Wintermute v. Cooke, 73 N. Y. 107 Winters v. Rush, 34 Cal. 136 Wiser v. Blachly, 1 Joiins. Ch. 437 410, Wisner v. Ocumpaugh, 71 N. Y. 113 Wis well V. Tefft, 5 Kan. 263 Withers v. Bircham, 3 B. & C. 254 Wittman v. Watry, 37 Wis. 228 Wolcott V. Ensign, 63 Ind. 70 Wolf V. Banning, 3 Minn. 202 287, 381, 389, r. H., 13II0W. Pr. 84 "780, V. Schofield, 38 Ind. 175 586, 594, Wolff V. Stoddard, 25 Wis. 503 Womble v. Traps, 77 N. C. 198 V. r,each, 83 N. C. 84 Wood V. Anthony, 9 How. Pr. 78 V. Bangs, 1 Dakota, 179 V. Brown, 34 N. Y. 337 V. Cullen, 13 Minn. 394 V. Dunimer, 3 Mason, 315 V. Fish, 63 N. Y. 245 V. Luscomb, 23 Wis. 287 V. Mayor, 73 N. Y. 656 V. Olney, 7 Nev. 109 345, 727 377 204 308 689 380 304 589 761 403 529 578 349 271 846 436 303 739 686 836 493, 539 692 791 316 305 693 434 173 437 501 413 434 845 602 104 216 386, 463 106, 110 726 227, 228 729 742 377, 400 791 ,685 584 657 587 491 174 408 130 441 358 363 175 641 Ixviii TABLE OF CASES CITED. Wood V. Orford, 52 Cal. 412 r. Ostram, 29 Ind. 177 V. Perrv, 1 Barb. 114 I'. AVhite, 4 iMy. & Cr. 470 377, 378 709, 751 189 316, 317, 419 V. "Williams, 4 Mad. 18G Woodbury v. Delap, 1 N. Y. S. C. 20 301 519, 521 183 377 579, C15 584 174 043 V. Deloss, 65 Barb. 501 Wooden v. Waffle, 6 How. Pr. 145 92, 555, 574 Woodford v. Leavenworth, 14 Ind. 311 77, 78 Woodruff V. Garner, 27 Ind. 4 804, 813, 833, 885 Woodward v. Anderson, 9 Bush, 624 282 V. Laverty, 14 Iowa, 381 840 V. Wood, 19 Ahi. 213 305, 313 Woodworth v. Campbell, 5 Paige, 518 305 V. Knowlton, 32 Cal. 164 078 V. Sweet, 44 Barb. 268 377 Woody V. Jordan, 69 N. C. 189 670, 838 Woolsey i-. Brown, 74 N. Y. 82 V. Williams, 34 Iowa, 413 Wooster v. Chamberlin, 28 Barb. 602 341, 354 Worrall v. Munn, 38 N. Y. 137 Worth V. Fayetteville, 1 Wins. 70 Worthey v. Hammond, 13 Bush, 510 Wotten V. Copeland, 7 Johns. Cli. 140 304, 428 Wricrglesworth v. Wrigglesworth, 45 Wis. 255 103 Wright V. Bacheller, 16 Kan. 259 345, 760 V. Bundy, 11 Ind. .398 308, 400 V. Conner, 34 Iowa, 240 492 V. Delafield, 25 N. Y. 266 788, 805 V. Hooker, 10 N. Y. 51 624 V. Howell, 35 Iowa, 288 399 V. Johnson, 50 Ind. 454 614 V. McCormiek, 67 N. C. 27 600 V. Post, 3 Conn. 142 226 V. Schmidt, 47 Iowa, 233 685 V. Storrs, 32 N. Y. 691 250 t;. Tinsley, 30 Mo. 389 215 V. White, 14 La. An. 590 473 V. Wilcox, 19 Wend. 343 367 V. Wright, 54 N. Y. 437 83, 84, 290, 377, 751 V. Wright, 72 Ind. 149 222 Wygand v. Sichel, 3 Keyes, 120 577 Wynian v. Remond, 18 How. Pr. 272 628 Wynn v. Cory, 43 Mo. 301 89, 98, 504 Xenia Branch B'k v. Lee, 7 Abb. Pr. 372 816, 834 2v7, Yale V. Dederer, 18 N. Y. 265 876. V. Hoopes, 12 La. An. 460 Yancy v. Teter, 39 Ind. 305 Yates V Compton, 2 P. Wms. 308 V. Froot, 12 Johns. 1 V. Hoffman, 5 Hun, 113 Yatenian r. Estill, 3 La. An. 222 Yeates v. Walker, 1 Duv. 84 Yopst V. Yoi)st, 51 Ind. 61 York V. Wallace, 48 Iowa, 305 Yorks V. Peck, 14 Barb. 644 Young V. Caltett, 6 Duer, 437 r. Coleman, 43 Mo. 179 v. Commissioners, 25 Ind. 295 V. Drake, 8 Hun, 61 325, V. Greenlee, 82 N. C. 346 349, V. Marshall, 8 Bing. 43 635, V. N. Y., &c. Str. Co., 10 Abb. Pr. 229 345, r. Pickens, 40 Ind. 23 V. Young, 81 N. C. 91 96, 499, Youngs V. Kent, 46 N. Y. 672 Youngstown v. Moore, 30 Ohio St. 133 Yuba V. Adams, 7 Cal. 35 z. Zabriskie v. Smith, 13 N. Y. 322 180, 181 183, 185, 180, 250, 278 Zaegel v. Kuster, 51 Wis. 31 396 Zeidler ?■. .Johnson. 35 Wis. 335 732 Zimmerman r. Schoenfeldt, 6 N. Y. Sup. Ct. 142 432 Zitske V. Goldberg, 38 Wis. 216 587 Zorger v. Rapids, 36 Iowa, 175 174 379 473 668 314 229 358 473 490 288 614 333 677 493 273 499 378 636 417 732 519 688 608 475 CIVIL REMEDIES. INTRODUCTORY CHAPTER. § 1. By far the greater portion of any actual system of juris- prudence consists of commands that create and define those rights and corresponding duties which control the normal rela- tions of individuals with each other and with the body politic of which they are members. Some of these rights and their corre- sponding duties govern the relations alone of the state with indi- viduals, and are properly termed jjublic ; the others are confined to the relations of individuals with each other, and are called private. As these rights and duties form the very substratum of the whole law, as the law and all the machinery of administra- tion exist solely to declare and enforce them, as they are in fact the very end and object of legislation and government, they may be and are by most juridical writers appropriately styled primary rigJits and duties. If mankind were absolutely perfect so that disobedience would be impossible, if it were certain that every command uttered by the Supreme Power would be volun- tarily obeyed by those to whom it was addressed, the law would contain nothing else than an enumeration of these primary rights and duties. Since, however, disobedience is possible, and these primary rights may be broken and duties unperformed, a supple- mental branch of the law becomes a matter of necessity, by which obedience may be enforced. This secondary and supplementary department is by some writers called the " sanctioning," because it deals with the sanctions which give their compulsive efficacy to the commands of the supreme power. I shall, however, use the term remedial as descriptive of this department, since it more 1 "Z CIVIL REMEDIES. nearly accords with the nomenclature customary among lawyers iu England and iu America. § 2. This secondary and supplementarj^ or remedial depart- ment of jurisprudence has to do with remedies and with reme- dial rights and duties. Remedies, in their widest sense, are either the final means by which to maintain and defend primary rights and enforce primary duties, or they are the final equiva- lents given to an injured person in the place of his original pri- mary rights which have been broken, and of the original primary duties towards him which have been unperformed. Remedial rightSy or rights of remedy, are rights which an injured person has to avail himself of some one or more of these final means, or to obtain some one or more of these final equivalents. Remedial duties are secondary duties, devolving upon the party who has infringed upon the primary rights of another, and failed to per- form his own primary duties towards that other, to make the reparation provided by some one or more of these final means, or furnished iu some one or more of these equivalents. One or two familiar and simple examples will illustrate and explain these abstract definitions. A. and B, have entered into a contract by which the latter has agreed to sell and deliver to the former a quantity of merchandise : analyze the results of this relation. A. has the right that B. should transfer and deliver to him the goods referred to, and a corresponding duty rests upon B. to make the transfer and delivery. This right and tliis duty are primary. B. fails to perform, and thereupon a new secondary right in A. arises, and a new secondary duty of B. A.'s new right is to have the remedy which the law permits in such a case, and B.'s new duty is to grant this remedy ; this new right and this new duty are remedial. The remedy given under such cir- cumstances is a pecuniary comjDensation, a sum of money in the place of the goods, which in our legal nomenclature is termed damages. In this instance the remedy is plainly an equivalent. A.'s primary right was to acquire the ownership and the posses- sion of the corpus of the goods ; B.'s primary duty was to trans- fer the ownership and possession of that corpus. The remedy, however, is not the ownership and possession of the merchan- dise, but the ownership and possession of a sum of money instead thereof. It is a moral and indirect means of enforcing the pri- mary right, because it may induce B. to perform his primary duty INTRODUCTORY CHAPTER. 3 and deliver the goods ; but, if it does not produce that effect, it is an equivalent for the ownership and possession of the articles themselves. In this instance we have a given primary right and duty, a breach thereof by non-performance, a new remedial right and duty in the place of the primary ones, and a remedy differ- ent from, but equivalent to, those originals. This familiar exam- ple illustrates every case of remedy by a pecuniary compensation in the place of the primary right and duty which have been broken. Another example will be sufhcient. A. and B. have entered into a contract by which the latter has agreed to convey a certain farm, and to execute and deliver a deed thereof to the former. Here A.'s primary right is to have B. convey the farm, which is done by executing and delivering the deed and by sur- rendering jjossession of the land. B.'s corresponding primary duty is to perform these acts. Upon B.'s refusal, A. is at once clothed with a new and remedial right, and B. is subjected to a new and remedial duty. Under these circumstances the law gives a remedy which is the same as the end which was to be attained by the primary right and duty themselves ; that is, the convey- ance of the land. In other words, the law will compel B. to do just what he in terms contracted to do, — execute and deliver the deed and surrender the possession. Here the secondary remedial right and duty are the same as the original primary right and duty ; and the remedy itself is not an equivalent to, but is identical with, the result to be reached by such primary right and duty. The remedy, however, is plainly a means by which A. maintains his primary right, and enforces the primary duty which B. owes to him, for by it the self-same right is upheld, and the self-same duty is performed. § 3. When the primary rights and duties are public, that is, when "they govern the relations alone of the State with individ- uals, the remedies for the violation thereof are public, and the larger portion of them are criminal. When the primary rights and duties are private, that is, when they are confined to rela- tions of individuals with each other, the remedies are also pri- vate, or, as they are frequently termed, civil. This treatise will deal with the latter class alone. The vast majority of public remedies are designed to preserve the good order of society, and to enforce those duties of individuals towards the State whose violations are called crimes, and the remedies themselves are 4 CmL REMEDIES. criminal : but there are other public remedies which are not in any respect criminal. The remedies to which I now refer may, at first blush, appear to be private, and to be used to enforce some rights that belong to an individual rather than to the body politic ; yet, on closer examination of their elements and objects, it will be plainly seen that they are strictly public, and serve to uphold rights which inhere in the Commonwealth. The sub- division which I am thus describing includes those judicial pro- ceedings by which the regular organization and structure of the government are preserved by determining the conflicting claims of litigant parties to occupy and hold the powers and functions of some particular public office. The individual who is, or who claims to be, a portion of the governmental organism, by virtue of an official position which he seeks to establish, may be an actor in the judicial proceeding; but the proceeding is not instituted, nor is the determination made, on his own personal account, nor for his own private benefit : the State is in theory and in prac- tice the part}'' primarily interested, and the rights of the State are maintained and established by the judicial decision. On the other hand, certain remedies which have the outward appearance of being public, which are required by some ancient and arbitrary rule of form to be brought in the name of the Commonwealth or of the people, are actually private and civil. The interposition of the State as a nominal actor is merely formal, and the rights to be upheld belong to individuals in their private characters and capacities. Remedies and remedial rights of this last class, being strictly private and civil, fall within the scope of the present work, while those of the preceding class are not embraced within its design. § 4. I shall in this Introductory Chapter state and explain the general plan of the following treatise upon the Civil Action of the reformed American System of Procedure, and upon the Remedies which may be obtained and the remedial rights which may be secured by its means. For purposes of convenience, and to exhibit the sequence of thought in the clearest possible man- ner, the prefatory matter will be separated into subdivisions or sections, each embracing a single topic. As a preliminary to the purposes thus stated, a rapid sketch and general outline of the system which prevailed prior to the reformatory legislation of New York and of other States will be necessary. INTPtODUCTOIiY CHAPTER. 5 SECTION FIRST. THE REMEDIAL SYSTEM TRIOR TO THE MODERN REFORMS. § 5. Previous to any sweeping changes made by statute, justice was administered in England and in those States which had bor- rowed the English methods unaltered, by two distinct sets of courts, and by two different systems of procedure, — the legal and the equitable. All the ordinary remedies which could be granted to a. party in the courts of law as distinguished from those of equity, and in fact all the ordinary remedies which the common law knew and furnished, were administered through and by means of certain fixed and well-defined forms of proceeding, known as the "common-law actions" or "actions at law." I say all the ordinary remedies, because in addition to those which were thus obtained by means of the determinate actions at law, there were some others, exceptional, ancillar}', and extra-oi(\\nixxj in their nature, which were obtained by means of certain special proceedings that were not properly actions. Among these special proceedings — and they are mentioned as illustrations of my mean- ing only — were the writ of habeas corpus^ the writ of mandamus^ and the like. The number, nature, and purposes of these various common-law actions, and of these common-law special proceed- ings, were fixed, and had remained unchanged for several cen- turies. This fact was not, however, peculiar to England and to the common law. It is found to have been a universal principle, so far as the researches of historical jurists have thrown any light upon the subject, that in the earlier and formative periods of every national jurisprudence, and subsequently until a change was effected in them by direct legislation, the civil remedies were bound up in aiW administered by determinate forms of judicial procedure, which, while well defined and firmly established, were highly artificial and arbitrary, and of which the common-law actions may be taken as the types. The Roman and the English systems of jurisprudence are the only ones which have passed through an entire course of development, from the rudest archaic stage to a final condition of enlightened equity and refined mor- ality, and whose history throughout this completed progress is open for our study. The law of other countries, broken, frag- b Cn'IL liEMEDIES. mentary, and imperfect as it may have come to our knowledge, clearly shows the influence of the principle ; but in that of Rome and of England it was established in its full force, and worked out its perfected results in the manner and form of the legal growth. The subject of the present section wall be considered under three heads: I. The universal principle of legal development in respect to remedies and remedial rights ; II. the workings of this prin- ciple in the Roman law ; III. The workings of the same principle in the English law. I. The Universal Principle of Legal Development in Respect to Remedies and Remedial Rights, § 6. In the very infancy of the nation, while the people witli great potentialities are hardly emerged from the latter stages of barbarism, and the law is rude and severe without an element of equity or abstract justice and morality, there are found to exist a certain number of purely artificial and highly arbitrary forms of judicial procedure, which we may term actions, through which all the civil rights and duties acknowledged and provided for are protected and enforced. Their origin must be referred to the most primitive tribal customs of the peoples. These certain, fixed, and arbitrary forms are the very centre of the entire legal system ; and there is hardly a general statement of primary rights and duties separate and apart from the statement of these actions and rights of action. The national code, to use a term which is very inappropriate to a law in such a shape, consists almost entirely in a description of these forms of procedure and of the strict and severe remedies which may be enforced by their means, and of the times when, occasions in which, and persons by whom, they may be used. This original shape and character of the national jurisprudence is preserved through long periods of the subsequent history. There appears to be some vital connection between these artificial and arbitrary external forms and the barbarian modes of thought, moral and religious conceptions ; and only as the nation gradually works out of the barbarous into an enlightened condition does the arbitrary element of unyielding form begin to disappear, and to be replaced by simple and more just processes. § 7. Sir Henry Maine, in his great work, " Ancient Law," has INTRODUCTORY CHAPTER. 7 shown with absolute perfection of demonstration that a national system of jurisprudence, in its progress from infancy to complete maturity, inevitably passes through three stages, or rather is developed b}^ the means of three very different agencies, each of which, during the time when it is the ruling force, stamps upon the whole body of the law external and internal characteristics peculiar to itself. These three stages or means of development are (1) The use of fictions or fictitious forms contrived to meet some new occasion that has arisen in the social movement, which is done by evading the existing arbitrary rules, and at the same time preserving the appearance of retaining these same rules in full operation. (2) The introduction of equitable conceptions, modes of procedure, and tribunals, b}^ which the judges openly and avowedly abandoning the ancient arbitrary modes and max- ims, and even the very appearance of them, create in their stead new methods and rules based upon notions of abstract right and justice. The work of improvement during this stage is chiefly done by the courts in the free use of their highest function, — that of legislation. (3) The use of direct, positive legislation, the legislature as the supreme power in the State consciously acting upon the law as a whole and effecting changes in it in accordance with some preconceived plan. § 8. In the first and second of these stages, and especially in the first, the external forms of action play a very important, and, in fact, the only part. Starting from its primitive, rude, incom- plete condition, when it is little more than a collection of the arbitrary forms I have described, the law pursues its steady growth, keeping pace with the requirements of an advancing civilization ; but the original, arbitrary forms dominate over the growth, control its movement, and determine its shape and character. The very growth itself consists in modifications and new applications of the old legal forms and actions to circum- stances and cases which arise. The entire law, the national code, — to use the expression still inaccurately, — is not a state- ment in abstract of the primary rights and duties which govern the conduct of individuals, but a mere statement of the remedies which an individual may have under given circumstances, by pursuing certain arbitrary and artificial modes of action. All the improvement of, and all the addition to, the law consist in two classes of operations, both performed by the judicial magis- 8 CIML REMEDIES. trates in the exercise of their high functions; nameh', (1) the invention of entirely new forms of action to meet some want, to apply to some new classes of events or transactions which have arisen in the social activity ; and (2) in tlie extending the old and existing forms of action so as to include cases and transac- tions not originally embraced within them. This work is almost entirely done by the judges, although occasionally the legislature intervenes, and at one blow effects the change or the addition. In both these two classes of operations, but especially in the latter one, fictions are freely resorted to, so as to effect the real improvement, — the new adaptation, — while preserving the ap- pearance of a strict adherence to the ancient external form. It seemed to be a controlling notion in the minds of men during that period of development, to preserve the shell, the outside husk, with most scrupulous care, while the kernel was removed or replaced by fruit of another kind. § 9. The instance of the action of ejectment in the English law well illustrates my statement, both as to the general method of improvement and as to the use of fictions in pursuing that method. This action, when first invented, was designed solely to enable a tenant for years to recover possession of the demised land, during the continuance of the term, from some wrongful ejector who had taken and kept the possession. It assumed a real demise, an actual tenant, and a wrongful ejector who had the possession ; it was used only under these circumstances ; it contained no fictions, but was as real as any action known to the law. Prior to the allowance of the writ upon which the action was based, such a tenant had no means of enforcing his claim to the land. His interest was not looked upon as an estate, nor even as a right of any description which the courts would sustain. In the process of time, however, the tenant came to be regarded as clothed with a definite interest, a low kind of estate, and the action of ejectment was invented, as described, to protect his right and preserve his possession. This conception of tlie action continued until the reign of Edward III., or, as some say, until that of Henry VII. Subsequent to that time the judges began to contrive the scries of fictions which rendered the action of ejectment such a strange anomaly to the legal student, and made it the usual and finally the only means of trying the title to lands between parties who adversely claimed to own the same in fee. INTRODUCTOKY CHAPTER. 9 In the first place, instead of a real tenant, a fictitious tenant, John Doe, was substituted as the plaintiil, and a fictitious demise to him from the actual person who claimed to own the premises in fee and sought to establish his ownership by this legal pro- ceeding. But as the arbitrary rule of the law required tliat the defendant in the action should be in possession, and as the ad- verse claimant of the fee might not be in possession, another set of fictions was contrived, and in this manner the action was at last completely transformed from its original purpose, and became the only mode for the trial of titles and the recovery of land by the absolute owner in fee.^ § 10. In this manner a legal growth proceeds through long periods of the national history. The legislature interferes but seldom with the private law, with the rules which define and control the rights, duties, and relations of individuals ; its occa- sional acts of amendment are to correct some glaring abuse, or to make some abrupt change which has seemed to the courts to be impossible by their ordinary judicial methods. The task of developing the law is thus left almost entirely to the magistrates ; and they proceed step by step, as cases arise, by using the actions with which they are familiar, and by preserving the external forms thereof, only enlarging their scope, and increasing the number of special instances to which they apply. From this cause the private law, as a whole, still continues, during the periods described, to be an enumeration and statement of the remedies and reliefs which injured parties may obtain, under specified circumstances, by following the well-defined and arbi- trary modes prescribed in the actions and special proceedings which the courts permit or require to be used. These general propositions will now be illustrated by reference to the Roman and the English legal history, during the first and formative stages of each. II. Tlie Workings of this Principle in the Roman Laiv. § 11, At the earliest stage of the Roman law, of which there is any certain trace remaining, and for a considerable length of time subsequent to the decemviral legislation, known as the Twelve Tables, there were five actions by which all civil rights could be 1 Spence, Eq. Jur. of tlie Ct. of Chan, vol. i. pp. 232, 233. 10 CmL REMEDIES. maintained. Nothing can exceed the arbitrary nature and in- tense formalism of these proceedings. It would be needless to attempt a detailed description of these curious and highly dra- matic forms, and the reader is referred to the commentators upon the Roman law for a minute and particular account of the various acts which the litigant parties must perform, the phrases which they must repeat, the symbolic gestures which they must make. Absolute accuracy in complying with the established formula was required ; any omission or mistake of a word or movement •was fatal. Gaius says : " But all these actions of the law (^actiones legis) fell gradually into great discredit, because the over-subtlety of the ancient jurists made the slightest error fatal." 1 The most ancient and important was the " action of the wager " (^actio saeramenti), so named, because both parties deposited with the magistrate a certain sum as a wager, w^iich the loser forfeited to the public treasury. The proceedings were highly dramatic and symbolic, representing to the eye the legal conception which was the basis of the action. It came to be used solely for enforcing rights of property over things. The second, the " action by demanding a jury " {actio judicis postula- tio), w^as so called, because the magistrate was asked to allow the appointment of an arbiter or jury man to decide the matter in dispute.2 Little is known of its forms or objects ; but it seems to have been used to enforce the fulfilment of an obligation when the engagement of the parties was not definite and certain, and some latitude of opinion was possible in the decision. Another, the "action of notice" (^actio condictio}, so called because the plaintiff gave notice to the defendant that he must aj)pear before the magistrate in thirty days, was employed in case of all definite obligations. The " action by arrest " (actio per manus injec- tionoii) was a proceeding by which the defendant was arrested, and immediately brought before the magistrate. Finally, in the " action by taking pledge " (actio per pignoris captionem), some- thing belonging to the defendant was seized as security for the debt. These two latter were in reality proceedings in execution to enforce a judgment rendered in some prior suit.^ 1 Institutes of Gaius, l)k. iv. § 30. action performed exactly the same func- 2 Tile translation "jury man" repre- tion as our jury. The magistrate stood sents far more correctly the meaning of in the place of our court. "jude-x" than the conmion translation 3 These and other Roman law actions "judge." The "judex" in the Roman are fully described iu Sandars's lust, of INTRODUCTORY CHAPTER. 11 § 12. As these most ancient forms became disused, and were finally abandoned, their place was supplied by certain other judi- cial processes, to which the generic name, formula^ was given, conducted before the magistrates, of whom the most important were the praetors {j^rcetor urhanus and prcetor peregrinus^. The Roman pra3tor corresponded to the English judges, common law and equit3^ while the "judex" performed the functions of the English jury. As the English courts have built up by gradual accretions the greater part of the law of England, so did the prse- tors, as truly and by the ase of the same judicial legislative func- tion, build up the largest part of the Roman jurisprudence, which, after being put into a more comprehensive and scientific shape by the labors of the great jurists under the empire, was at last codified by the orders of Justinian. The legislative work of the English and American courts is done in the judgments and opin- ions rendered upon the decision of cases after the events have happened which call for such official utterances. The same work of the Roman prsetors was done in the edicts (edicta) which they issued upon taking office, and which in process of time became one continuous body of law, each magistrate taking that which had been left by his predecessors, and altering, amending, and adding to the same as the needs of an advancing civilization required. The form of this edict was peculiar. Instead of lay- ing down general abstract propositions defining primary rights, or publishing formal commands similar to modern statutes, the magistrates announced that under certain specified circumstances a remedy would be granted by means of a designated action. In this manner the edictal or prsetorian law took on the peculiar form I have already described, and ever kept in view the reme- dies and the actions by which they might be obtained as the very central conception of the whole system. § 13. From generation to generation and from century to cen- tury, ideas of abstract right and justice more and more controlled the legislative action of the prsetors ; ancient arbitrariness was gradually abandoned, and practical rules became equitable. This result was accomplished by three separate processes, — (1) by extending the old forms of action to new cases, (2) by con- Justinian, Introd. pp. 59-62. See also by Gains, pp. 407-422 ; Commentaries of " Roman Law," by Lord Mackenzie, pp. Gains, by Abdy and Walker, pp. 257- 315-317 ; Post's Elements of Roman Law, 269. 12 CIVIL REMEDIES. triving new actions analogous to the old ones, and (3) finally^ by inventing actions entirely different in principle and in method. Fiction played a prominent part in the earlier stages of this progress, and equity in the later. The proceedings thus described were called '' ordinarj^," and were strictly analogous to the English common-law action tried before a court and jury. The prietor was the magistrate who announced the law in his edict, and who applied this law to each case as it came before him, by designating the legal principle that controlled it, and by indicating that rule in the pleadings as the guide to its final de- cision. The praetor himself did not make this decision nor pass upon the issues of fact. They were referred to a special tribunal constituted for that purpose, generally a single '■'•judex'" or jury- man, sometimes a single " arbiter,'" who seems to have had greater latitude and discretion than the judex, and in a few specified cases a larger body of jury men, who were then termed " recuper- atores" or " centumviri" § 14. Side by side with this ordinary jurisdiction of the prae- tor, there grew up the extraordinary jurisdiction, in the exercise of which he decided both the law and the facts without the in- terposition oi ^nj judex or jury, and unhampered by any techni- cal requirements as to the proper " formula" or action. Nothing could be simpler than the whole proceeding ; the plaintiff alleged the facts making out his cause of action ; the defendant an- swered, setting up his defence whole or partial ; the magistrate decided. In this manner the praetor was enabled to grant reme- dies not provided for by any specified action, and to base his judgments upon notions of right and justice. In this extraordi- nary jurisdiction of the Roman praetor we plainly have the pro- totype of the English Court of Chancery, and of its equitable powers and principles.^ Among the remedies invented in the exercise of this extraordinary jurisdiction, and for which there was no provision made by any known action or formula, were interdicts, which answered to our injunctions, both preventive ^ See Sandars's Inst, of Justinian, In- allclism between the prajtor wielding his trod. p. 70. It lias sometimes been said " ordinary "jurisdiction and the coininon- the entire functions of the prajtor are re- law courts, and between the pnetor produced in the modes of the Court of wielding his "extraordinary" jurisdic- Chancery; but this is a mistake, and can tion and the Court of Chancery, is abso- only have resulted from a misconception lately perfect, ol'tlie Roman juridical system. The par- INTRODUCTORY CHAPTER. 13 and mandatory ; restitutions (^restitutiones in integrum'), hy which a person was restored to his former position ; the enforcement of trusts (fidei commissa) ; and the settlement of insolvents' estates (misdo in bonorum possessionem'). In these remedies we find all the most important and peculiar kinds of relief conferred by the modern Court of Chancery, and all the grand principles which make up the body of modern equity. Interdicts, which were in fact broader in their scope than our injunctions, because they were used to restrain acts of mere violence, played a very promi- nent part in the theory of remedial rights. Restitution was the name applied to a large class of remedies adapted to differing circumstances and answering to numerous special decrees granted by our equity tribunals. The modern doctrine of trusts was confessedly borrowed from the fidei commissa; and, although its scope has been greatly enlarged, the principle which underlies it is the same. Finally, the missio iyi honorum possessionem was the origin of the systems of bankruptcy which form a stable part of the jurisprudence of all European nations. This equitable pro- cedure, after running side by side with the ordinary or legal, grew in importance, and became in time the only practical method in use, — every litigation being turned into the praetor's extraordinary jurisdiction. At length, by a constitution of Dio- cletian (a. d. 294), all causes in the provinces were required to be tried in this manner ; and, shortly after, the same rule was made universal throughout the empire. ^ The codification made by the direction of Justinian contains only this sensible and natural mode of administering the remedial department of the law, because the ancient formalism had long before disappeared. III. The Workings of this Principle in the Unglish Law. § 15. The same facts, the same underlying principles, and the same course of development are shown in the history of the Eng- lish law. Bracton (A. D. 1256-1259) modelled his treatise upon the Institutes of Justinian, and thus gave his work the appear- ance of some scientific order and method ; but his book was cer- tainly in advance of the time in which it appeared, and the law for many generations and even centuries did not follow the logical 1 See Lord Mackenzie's Roman Law, p. 319. 14 CIVIL REMEDIES. S3'stem which he borrowed from the civilian institutioncal writers and commentators. With those jurists he divided all actions, — all the common-law actions, for as yet the equitable juris- diction of the Court of Chancery was unknown — into real, personal, and and mixed ; and this classification has been pre- served to our day, although it is utterly without any practical results.^ § 16. Real Actions. — Real actions were based upon the plain- tiff's, or demandant's as he was called, right of property in the specific thing which was the subject of controversy, his dominium; they were brought to establish this ownership, and sometimes his right of possession against an adverse claimant who had taken possession and asserted ownership. In this respect they were identical with and plainly copied from the group of actions in the Roman law termed "vindications" (yindicatio7ies),\>\xt differed from the latter in being confined to lands. For movables there was no real action, no vindication, and damages alone could be sued for. The ancient real actions in the English law were sepa- rated into two classes, the petitory^ in which the controversy was concerning the property and right (^super proprietate etjure), and sought to establish such property ; and the possessory, in which the controversy was concerning the possession. The j)etitory real actions were (1) the writ of formedon, of which there were three varieties, in the descender, in the remainder, and in the reverter ; (2) the writ of quod se deforcias, for owners of life estates, such as dower and the like ; and (3) the writ of right, to recover the absolute fee. The possessory real actions were (1) the writ of entry, and (2) the writ of assize, of which there were two varie- ties, assize mort d''ancestor, and assize of 7iovel disseisin. The relation of the possessory to the petitory actions was such that an appeal to the former did not preclude the subsequent use of the latter, while on the contrary the first use of petitory actions prevented all recourse for ever afterwards being had to the pos- sessory.2 § 17. Mixed Actions. — The only mixed actions spoken of by Bracton were those employed for the partition of lands among 1 Bracton and liis Relation to the actions, their special ^objects, and their Uonian Law, by Guterbock, trans, by procedure, see Blacks. Comm. bk. iii. ch. Brinton Coxe, pp. 150, LjI. 10, pp. 180-rj7. ^ For a fuller description of these real INTRODUCTORY CHAPTER. 15 co-owners. Others, however, were subsequently invented and placed witliout much regard for logic in this class. The most important of them were the action of ejectment, which alwaj'-s preserved the form of a mere possessory proceeding, although it finally took the place of even the petitory real actions as the means of trying titles ; the action of waste, in which the posses- sion of the land wasted by the tenant and damages for the injury were recovered ; and quare impeclit, which was confined to certain ecclesiastical property. § 18. Personal Actions, — Personal actions (in personam') were directed against the particular person liable ; and the final remedy which they conferred was always a sum of money. They were separated, according to the nature of the act which was the occa- sion of putting them in motion, — the omission or delict of the defendant, — into those ex contractu and those ex delicto or male- ficio. The arrangement made by one text-writer of authority, Mr. Chitty, in his treatise on Pleading, includes in tlie class ex contractu debt, covenant, assumpsit, detinue, and account, and in the ex cZe/zc^o trespass, case, trover, and replevin. It is difficult to see why detinue should be called an action ex contractu, and replevin an action ex delicto. Neither more than the other is founded upon contract, and both are in their essence actions in rem, — vindications, — and seek to recover the very corpus of the goods. This is a striking example of the utter want of consis- tency and logical order running through the treatment of the common law by the best of its text-writers, and resulting partly from the arbitrary division of things into real and personal, lands and chattels, and of property therein into real and personal estates. Because the taking or the detention is in itself an act of wrong, and not an agreement, some writers range both detinue and replevin in the class ex delicto. § 19. A sketch of the origin and progress of these actions through various stages will illustrate the workings in the common law of the general principle that I am discussing. At the earliest times there were only four personal actions, — debt and covenant strictly ex contractu, and trespass and detinue. An action was commenced by the issuing of a process from the court, called the original writ, which briefly described the injury, omission, or wrong alleged against the defendant, and indicated by proper technical phrases the form of the action which would ensue. As 16 CIVIL REMEDIES. " debt " was the appropriate action in which to recover a sum of money upon contract where the amount was ah-eadj reduced to a certainty, as " covenant " was confined to the claim for damages upon the breach of a sealed agreement, as " trespass " was used for the recovery of damages resulting from acts of violence done to the person or property of the plaintiff {vi et armis'), and as " detinue " was a proceeding for the recovery of specific goods and chattels wrongfully detained from the owner, it was an easy matter to find the forms of writs suited to facts and circumstances which plainly fell within some one of these four remedies. If the debt was certain in amount, if the writing was sealed, if the wrong had been done by force, or if the specified thing of the plaintiff was withheld from his possession, the form of proceeding in which to obtain relief was well known, determinate, and fixed. But when events happened, when circumstances occurred quite different from the essential features which characterized any one of the four remedial forms thus described, and a wrong was thereby done to an individual, it was by no means certain that he could obtain any redress. These four actions were known, and no others. " All breaches of contract unwritten, or unsealed if written, were remediless, unless they created an absolute and stipulated debt. All obligations arising from the mere acts of parties, — more frequently called implied contracts, — which form so large a part of the rights that courts enforce at the pres- ent day, and which spring from the plainest principles of justice and equity, were unrecognized." ^ Undoubtedly the officers of the Chancery were permitted and expected to frame writs to meet new cases which did not depart too widely from the existing pre- cedents ; but it is known historically that these officials were reluctant to use such an authority, and the common-law judges were reluctant to yield to it when used. To say that all rights and duties resulting from fraud, deceit, negligence, verbal defama- ation, and other wrongful practices not forcible, were ignored and unprotected, would perhaps be too sweeping ; there arc faint indications that the action of trespass was sometimes resorted to in cases of negligence, fraud, and slander, but the instances were extremely few, and for this large class of private wrongs there was substantially no private remedy. 1 Pomeroy's Introduction to Municipal Law, § 199, INTKODUCTORY CHAPTER. 17 § 20. At this point the legislature interposed in aid of the courts, and during the reign of Edward I. (13 Edw. I. eh. 24, A. D, 1284) Parliament enacted that " Whenever from henceforth it shall fortune in chancery that in one case a writ is found, and in like case falling under like law and requiring like remedy ia found none, the clerks of chancery shall agree in making the writs." Thus was opened the way for new actions and reme- dies to apply to all the new circumstances which could arise, and the judges were not slow to avail themselves of the privilege, because it afforded an opportunity not only to do prompt and substantial justice between parties, but also to enlarge in an unlimited manner their own jurisdiction. The modifications and additions were made in the action of trespass, which in its origi- nal conception was applicable only to wrongs accompanied or caused by violence. New writs were framed by which the action was extended to cases where the injury is consequential and indi- rect. At first the improvement was confined to instances of mal- feasance when a person has done something that he ought not to have done. Between this beginning and the instances of mis- feasance, or doing in a wrongful manner what ought to have been well done, the division line was shadowy, the step was short and was soon taken. Hence arose an additional class of actions known as " trespass on the case," or simply " case," which enabled the court to grant the relief of damage for fraud, deceit, negligence, want of skill, defamation oral or written, and all other injurious acts to person or property which are not done by direct force. 'In the process of time a second additional action, as an offshoot or species of " case " was invented, but was con- fined in its operation to a particular kind of delict ; namely, the unlawful detention of goods and chattels from their owner, and their conversion to his own use by the wrong-doer. It was called " trover," from the French verb tronvcr, to find, which invaria- bly occurred in a fictitious allegation of the pleading charging that the plaintiff had lost the chattel, and that the defendant had fjimd the same, and had converted it to his own use. As yet there was no remedy for the breach of those contracts which could not be enforced by the actions of debt or of covenant. To supply this want, the courts, still retaining the idea of the wrong done by the defendant, so as to preserve the theoretical connec- tion with the primitive action of trespass, extended the new form 2 18 CIVIL REMEDIES. of proceeding so as to include all instances of nonfeasance, or those in which a person has failed or refused to do what he had actually or impliedly promised to do. This step in advance pro- duced the action of "assumpsit," which grew to be the most common and important judicial method of enforcing legal rights. Although in its origin ranked with the ex delicto actions, it has long been regarded as belonging entirely to the class of those ex contractu. By its means a \evy large portion of the mercan- tile and commercial law has been added to the jurisprudence of England and of America. It is eminently an equitable proceed- ing, free from arbitrary and artificial rules and requirements. § 21. The ancient real actions, being excessively technical, and entirely unfitted for an age of activity, progress, and enlighten- ment, gradually passed out of use, and their objects were accom- plished by means of the modified " ejectment " enlarged in its scope and adapted to the trial of titles by the fictions which have been already described. As the result of this inventive function of the courts, we find in England and in the United States, prior to the recent amendatory legislation, the following common-law forms of action by which civil remedies were administered : tres- pass, to recover damages for a wrongful act of violence to person 6r property ; case, to recover damages for a wrong to person or property, unaccompanied by violence, or when the injury is con- sequential ; trover, to recover damages for the unlawful detention and conversion of chattels. These were ex delicto. The actions ex contractu were, covenant, to recover damages for the breach of a sealed agreement ; debt, to recover a fixed certain sum owed by the defendant, not as damages; assumpsit, to recover dam- ages for the breach of a contract not sealed, whether written or verbal, express in its terms or implied by law. The following bore a logical resemblance to real actions, the vindications of the Roman law ; ejectment, to recover possession of land, and to try the title thereto ; detinue and replevin, to recover possession of specific chattels. Replevin, which Avas confined to certain special cases in England, had been generally adopted throughout the United States in the place of detinue. § 22. By the side of this ordinary procedure of the common- law courts there grew up the extraordinary jurisdiction of the Court of Chancery. In the most ancient times a suitor who could not obtain relief from the courts of law had no other alter- INTRODUCTORY CHAPTER. 19 native than an application to the king himself. These appeals were entertained by the king and his council, and for a while an imperfect kind of justice was thus administered according to the notions of right held by the monarch and his advisers. As the number of these applications increased be3'ond the ability of the king to devote to them his personal attention, the practice arose of referring them to the chancellor, who in his high official char- acter of confidential advisor to the Crown and chief dignitary of the state, seemed to be the most appropriate person to relieve the king of these judicial duties. In the 22d year of the reign of Edward III. (a. d. 1348-49) a general order was made referring all such matters for examination and decision to the chancellor ; and from that epoch the Court of Chancery dates its commence- ment as a special tribunal, possessing an exalted jurisdiction dis- tinct from that of the courts of law. The earliest records of the court show that occasionally cases were brought before it which clearly belonged to the ordinary jurisdiction of the common-law judges, even cases of personal wrong and Adolence, which were properly redressed by the action of trespass. These instances, however, were very exceptional and quickly disappeared. The judicial functions of the chancellor soon became well defined. The procedure in equity was free from the trammels of rigid forms and of actions constructed upon an arbitrary model, and admitting only specified kinds of relief; the final remedies in equity could not only be based upon motives of abstract justice, but could be adapted to the special facts in each particular case and to the rights and relations of all the parties to each other. In other words, the chancellor was not obliged to render a given form of judgment or none ; he was not restricted to granting the relief of a sum of money or of the possession of a given tract of land or of a given chattel ; he might and did vary his decrees in every possible manner, and determine the rights of the litigant parties completely and finally. § 23. The parallel which I have already mentioned between the ordinary or legal jurisdiction of the Roman prcetor and his extraordinary or equitable jurisdiction on the one side, and the English common-law courts and their methods, and tlie Court of Chancery and its methods, on the other side, is perfect. This parallelism has lately been carried still further by the recent action of the British Parliament. The equitable jurisdiction of 20 CIVIL REMEDIES. the Roman magistrates not only reacted upon the ordinary legal jurisdiction, introducing more and more the influence of abstract right and justice, and sweeping away the ancient arbitrariness and devotion to external forms ; but it gradually grew in magni- tude nntil it became by far the more important of the two. Exactly the same process has gone on for centuries in England. The modes and the notions of equity gradually penetrated the common-law tribunals ; equitable principles were invoked in the decision of legal actions ; the common law has become scarcel}'" distinguishable, in the underlying juridical forces which govern its movements, from the mass of doctrines which, taken together, are called equity jurisprudence ; and this equity jurisprudence itself has grown to be vastly superior, in magnitude and impor- tance, to the legal division of the double system which forms the entire law of England. Finally, by a statute (constitution) of the Emperor Diocletian, the ordinary legal jurisdiction was abol- ished, and the extraordinary or equitable methods became uni- versal. Here, too, the parallel continues. By a statute of Parliament, passed in 1873, and which goes into effect on the 1st of November, 1875, the superior courts of law — the Queen's Bench, the Common Bench and the Exchequer, and the Court of Chancery, and the Courts of Admiralty and of Probate and Divorce, and of Bankruptcy — are combined into one grand tri- bunal, to be called the Supreme Court ; the distinctions between legal and equitable procedure are removed ; and one form of action is to be used in the administration of justice between private suitors, and in granting all civil remedies which may be obtained by litigant parties.^ This great change, now about to be made in England, had been effected twenty-five years before in New York, and is in full and successful operation in more than half, the commonwealths of this country. Whether law and equity, whether the legal and the equitable methods and reme- dies, can be (completely united and consolidated in one homoge- neous system, similar to that which prevailed in Rome during the ^ This statute was originally to go into Majesty's High Court of Justice," has effect on the 2d of November, 1874, but general original jurisdiction, together the time was subsequently postponed for with some appellate jurisdiction from one year. Tiie court as a whole is styled inferior courts, and the other, styled " The Supreme Court of Judicature in " Her Majesty's Court of Appeal," has England," and consists of two permanent a general appellate jurisdiction, divisions ; one of which, styled " Her INTRODUCTOKY CIIAPTEK. 21 later empire, may be doubted. I am of the opinion that such a result cannot be reached until trial by jury is abandoned, and the magistrate is left to decide both the law and the facts in every civil proceeding. While the jury trial lasts, there are difficulties in the way of an absolute unity of method which seem to be insuperable. What the union between law and equity effected by the American codes of practice actually is, what consequences in the administration of justice and in the granting of civil reme- dies this union must necessarily produce, if the spirit and the letter of the legislation are obeyed, I shall show in a subsequent portion of this treatise. As the necessit}^ for a separate court of chancery arose in great part from the use of the jury trial by the common-law courts, it hardly seems possible that this necessity has now been obviated, or that the equity tribunals and methods can be absolutely merged in those of the common law, and still less that the common-law tribunals and methods can be so merged in those of equity, as long as the jury trial — the original element of distinction — continues to exist. § 24. In thus describing the progress of our law, and the methods by which it has been built up, created^ I may properly say, through the exercise of the judicial legislative function of the courts operating by the decision of individual cases, I have explained the peculiar external form as well as the internal nature of that law as a complete system. For the larger part of the history the development has taken on the form of extend- ing, m.odifying, enlarging, improving, and adding to the various actions, their comprehensiveness, their application to the new facts, events, and relations constantly arising in the movements and advance of society and civilization. During that period it was impossible to separate the fundamental principles, the ab- stract rules which determine the primary rights and duties of individuals, from the more arbitrary and technical rules which relate directly to the procedure and to the methods and pro- cesses by which the judicial remedies were granted to suitors. This statement is abundantly verified by an examination of the published records in which the acts of the courts have been pre- served. A study of the books of reported decisions, published prior to a very recent time, shows that the judges seldom at- tempted to view the law as a body of general rules based upon great principles of right and justice, or to consider it apart from 22 CIVIL EEMEDIES. the mere external modes in which it was made applicable to in- dividual cases. Their opinions almost uniformly discussed the narrow question, whether such or such an action was proper under the circumstances before them, and whether the steps taken in it had been regular, and, if irregular, what effect was produced by such default upon the claims of the litigant parties. Doubt- less more general and fundamental principles were often involved in these apparently technical discussions ; but they were involved in a very subtle and obscure manner, so deeply involved as to be very difficult of apprehension. It is true that in more recent times there has been a great and most beneficial change. The courts of equity never being so much restricted by external and rigid forms, their notions and methods at last produced a marked effect upon the common-law judges and lawyers. The latter tribunals felt the influence, and were led to look at the substance behind and distinct from the forms. In the second place, a suc- cession of learned and able commentators and text-writers had done much to mould separate and important portions of the juris- prudence into a logical, scientific, and homogeneous form. Finally, the stage of direct legislation had commenced, and, both in Eng- land and in the United States, whole departments of the private law had been put in a statutory shape, and some progress had been made towards an exhaustive code. In fact, the private law of England and of the United States had reached a period of its development analogous to that of the Roman law before the decline of the empire had begun, after the creative function of the prsetors had virtually ceased, and while the writings of the great jurisconsults and the constitutions of the emperors were the prin- cipal sources of the law, and were transforming it from the fragmentary shape of the Edicts into the philosophical order and symmetry exhibited in the Institutes of Gains. Notwithstanding this change — almost revolution — which had commenced within the last fifty years, and which had probably been more thorough in the United States than in England, the old system of formal actions and technical modes of procedure still exerted a very decided influence through the whole body of the law, and still reigned supreme in the department of remedies and remedial rights. INTKODUCTOIiY CHAPTEE. 23 SECTION SECOND. REMEDIES AND REMEDIAL RIGHTS PRIOR TO THE MODERN REFORMS IN PROCEDURE. § 25. The division into legal and equitable relief, and the com- mon-law forms of action, presented a theoretical and a practical classification of remedies and remedial rights, which was univer- sall}'- accepted as not only proper, but as the only one possible under the circumstances. Here was a system ready made ; and, no matter how artificial and arbitrary it was, no other could be adopted as long as the ancient practice prevailed. We therefore find that all the English and American treatises, commentaries, and digests, so far as they treat of remedies, have followed the order which the common-law sj^stem of actions suggests, without a question as to its practical efficiency, whatever might be thought of its theoretical correctness. In fact, this classification was prac- tically efficient ; that is, it enabled the court and the bar to go through with the routine of business without much liability to mistake growing out of the method itself. I will illustrate this statement by a familiar example. Whatever may be said of re- form in the law, of amending it so that it may be more consis- tent, logical, and scientific, the most important practical duty of the lawyer is to procure some relief for clients whose legal rights have been invaded. In this country at least the great mass of men go on with their affairs, trusting to their own knowledge or their luck, until a difficulty is actually encountered ; and then they apply to a lawyer. His first and in general only duty in such case is to ascertain what remedy is furnished by the law applicable to the facts disclosed to him, and to obtain that rem- ed}^ if possible, through the action of the courts. In determining this most important, practical question, What is the appropriate remedy, and what are the client's remedial rights ? the estab- lished divisions which I have described lie open before him as an almost unerring guide. He can easily decide whether the case falls within the department of equitable or within that of legal rights, duties, and reliefs. The lines which separate these two grand departments are so well defined that in the vast major- ity of instances he could not err in making his choice, except through the grossest ignorance or nesrlisrence. If the case is lecral 24 CIVIL REMEDIES. rather than equitable, the lawyer has next to determine the form of remedj- awarded by the law courts to which his chent is en- titled. Here, again, the field is so carefully mapped out, the divi- sions are so plain, that his task is comparatively easy. If the matter in controversy is the ownership of a tract of land or of a specific chattel, and the object of the litigation is to declare such ownership and to recover possession, he knows that ejectment in the one case, and replevin in the other, viust be the judicial instru- ment by which the rights are to be asserted. If the relief is to be pecuniary, the question presents itself, and can be answered as soon as asked, — answered almost mechanicallj-, — Is the cause of action the breach of a contract, or is it some tort to person or property ? If the former, the distinctions between debt, covenant, and assump- sit are patent, and any error in the choice is virtually impossible ; indeed, all the lawyer has practically to do is to ascertain whether the contract is sealed or unsealed, for every case of simple contract, although it creates a debt, may be, and naturally would be, sued in assumpsit. If the cause of action is a tort, mere ordinary knowl- edge, a very moderate acquaintance with the modern rules of procedure, is sufficient to determine the choice between trespass, case, and trover. Although in former times the difficulty of distinguishing between trespass and case was often very great, although the special rules which governed their use were techni- cal, even absurdly technical, this difficulty had long ago disap- peared, this technicality had long ago been removed. It sometimes happened that the facts presented to the lawyer did not bring the client's case within any of these ordinary forms of procedure ; neither a suit in equity nor any common-law action could afford the relief applicable to the situation. Even in such an excep- tional instance the common-law provided other and special meth- ods, and the choice between them was comparatively easy. § 26. There were thus many and great practical benefits con- nected with, and arising out of, the system of procedure which has lasted through so many centuries. Conceding that the sys- tem, as a whole, was based upon no scientific, logical, or true principles, that it was arljitrary and artificial, that sometimes it had been wedded to technicality in such a degree as to produce gross injustice to suitors, yet, as this technical habit of mind had passed away, there was left a method of arranging, classifying, and administering remedies and remedial rights which was clear, IXTKODUCTORY CHAPTER. 25 definite, certain, and easy to be understood and to be worked out in actual practice. The lawyer knew exactly what remedies the courts would grant in a given case, and the form, manner, and means by which such remedy was to be souglit and obtained. There was an order, a classification, running through the whole department of civil remedies which could be acquired by an exer- cise of the memory ; and although the reasons upon which that classification was based were, like much of so-called legal rea- soning, a mere formula of words, without any real meaning, yet, when the artificial premises were conceded, the results could be understood. The system, however, did not rest upon its rea- soning so much as upon dogmatic authority, precedent, and habitual use. § 27. While an order, a classification, of remedies and remedial rights thus existed, perfect of its kind, practically adapted to the administration of justice in the manner which had long prevailed in England and in this country, this order and classification were founded upon, inseparably united with, and indeed a part of, the artificial method of administering justice which I have described, and which is so familiar to every lawyer, — the division of courts into law and equity, the separation of the entire jurisprudence into legal and equitable, and the use of fixed forms of action and of special proceedings for the obtaining all the remedies which the common-law tribunals conferred upon suitors. The artificial peculiarities of the remedial department, the very order, arrange- ment, kinds, and classes of remedies, and of means for their attain- ment which were so certain, well defined, and comprehensible, depended upon broader and deeper peculiarities, which lay at the bottom and pervaded the whole superstructure of our law. A change in the latter renders a change in the former inevitable. When a fundamental reform has been accomplished, when the artificiality and arbitrariness in the whole body of the law have been removed, when the division-wall between law and equity has been broken down, when all the separate forms of legal actions have been abolished, the raison d'etre of the existing classification of remedies and remedial rights also disappears. I would not be misunderstood in this statement. The remedies themselves, the final reliefs which are granted to litigant parties who establish their rights, remain unchanged ; ownership of specific tracts of land, or of specific chattels, may still be declared, and the pos- 26 CniL EEMEDIES. session thereof recovered ; pecuniary compensation may still be obtained for the breach of contracts and for wrongs done to prop- erty, person, and character ; proceedings may be reviewed and reversed as by certiorari ; acts maybe enforced as by mandamus ; the vast range of special reliefs conferred by the Court of Chan- cery is retained. The problem is to classifj^ arrange, define, and describe these remedies so that the particular one appropriate to a given state of facts may be seen at once by the practising law- yer and by the judge. Heretofore this classification, arrange- ment, definition, and description have depended entirely ui^on the peculiar and artificial means and instruments by which the reme- dies themselves could be obtained, by the use of which they were sought from and conferred by the judicial tribunals. When at one blow all these peculiar and artificial means and instruments are swept away, the very basis of the classification disappears, and with it the classification itself. To retain a classification founded U23on facts which no longer exist, facts which, from disuse, are rapidly passing away from the recollection of the older lawyers and were never known to the younger members of the bar except as the result of curious and antiquarian study, is worse than use- less ; it can only produce confusion, disorder, and uncertainty in the administration of justice. When the legislature has attempted to introduce simplicity into the mode of judicial trials, so that the ultimate primary rights and duties of the litigant parties may be presented for investigation and decision unconnected with, and un- trammelled by, any collateral difficulties growing out of questions as to the proper form of the mere means and instruments which the party has chosen by which to present his claim to the judges, a retention by lawyers and judges in any manner and for any purpose of these old means and instruments, and of the arbitrary distinctions between them, and of the arbitrary rules controlling them, must interfere in some measure with the intent of the leg- islature, and may utterly defeat the beneficial purpose which it had in view. I shall have occasion to return to the subject, and shall point out in detail the evil effects of combining the old forms and modes of thought with the new system which the reforma- tory legislation has introduced. INTKODUCTOEY CHAPTER. 27 SECTION THIRD. REJtIEDIES AND EEMEDIAL EIGHTS UNDER THE REFORMED AMER- ICAN SYSTEM OF PROCEDURE. I. The Reformatory Legislation. § 28, In the year 1848 the Legislature of New York adopted the Code of Procedure. The fundamental principles of this code, so far as it is now necessary to notice them without going into detail, are the following: (1) The abolition of the distinction between suits in equity and actions at law, and the distinctions between legal and equitable procedure, so far as such an amalga- mation or consolidation is possible with the judicial institutions which have been retained ; (2) The abolition of all common- law forms of action, and the establishment of one ordinary, uni- versal means b}- which rights are maintained and duties enforced in a judicial controversy, called a "civil action ; " (3) The appli- cation to this " civil action " of the familiar equitable rather than legal rules, methods, and principles, so far as practicable, and especially in reference to the parties, the pleadings, and to the form and character of the judgment. It is evident, from the most cursory examination of this code, that its authors, and presum- ably the legislature, intended that the various provisions which they introduced in reference to the parties to an action, to the pleadings therein, and to the judgment which might be rendered, and which were a concise statement of the well-settled doctrine of equity relating to these subjects, should apply fully and freely to all actions which might thereafter be brought, and should not be confined to actions that, under the former practice, would have been equitable. Whether the courts have at all times recognized and carried out this plain intention of the statute may well be doubted. I have been careful, in the above state- ment as to the union of law and equity. The language of the code is as follows : " The distinctions between actions at law and suits in equity, and the forms of all such actions and suits here- tofore existing, are abolished ; and there shall be in this State hereafter but one form of action for the enforcement or protec- tion of private rights and the redress of private wrongs, which 28 CIVIL REMEDIES. shall be denominated a civil action." ^ A subsequent provision,^ based upon the clause in the State constitution which preserves the jury trial " in all cases in which it has heretofore been used," ^ recognizes the fact that the jury trial must still be retained in all actions which were before denominated legal, with the unimpor- tant exception which formerly existed, — namely, where the trial will require the examination of a long account, — and thus, in express terms, prevents an absolute identity in the judicial pro- ceedings which result in remedies that would have been legal and in those which result in remedies that would have been equitable. As I have already said, the perpetuation of the very fundamental element of difference between the trial at law and the trial in equity — and the perpetuation cannot be avoided as long as the constitution remains unchanged in this respect — prevents a com- plete removal of the differences between legal and equitable procedure and the absolute union of law and equity into one homogeneous system. How far the differences between the final remedies which courts of law granted exclusively, — namely, the recovery of a specific tract of land or of a specific chattel, and the recovery of money in the form of pecuniary compensation, — and the infinite variety of special remedies which courts of equity were accustomed to grant, may in themselves prevent such a per- fect union, I shall discuss and attempt to determine in a subse- quent chapter. § 29. The New York Code, in respect to the fundamental prin- ciples and provisions which I have stated, has been adopted in twenty-two other States and Territories of this country, — in the States of Ohio, Indiana, Wisconsin, Iowa, Minnesota, Kentucky, Missouri, . Kansas, Nebraska, Nevada, Oregon, California, North Carolina, South Carolina, Florida, Arkansas, Connecticut, and in the Territories of Washington, Montana, Idaho, Dakota, Wyo- ming, Arizona, Colorado. I need not now compare these differ- ent State and Territorial codes in their details ; it is enough for 1 N. Y. Code of Proced. § 69 (.3339). sections of the new N. Y. " Code of Civil Since tlie publication of this work the Procedure." The sections of the present N. Y. "Code of Procedure" has been Code thus introduced are invariably superseded by a revised and enlarged placed in ])arenthoses, and will be readily code called the N. Y. " Code of Civil Pro- distinpuislied in this manner witliout fur- cedure." Wherever sections of the orig- ther description. inal X. Y. Code are cited in the notes or - N. Y. Code of Proced. § 253 (9G8, te.xt of my first edition, I liave added in 969). the present edition the corresponding ^ Const, of N. Y. Art. I. § 2. INTKODUCTORY CHAPTER. 29 my present purpose to say that they all embody the same three fundamental principles. It is true that in Kentucky, in Iowa, and in Oregon, the abolition of the distinction between legal and equitable actions is not nominally so absolute as in New York, and the other States and Territories named in the foregoing list. The following are the provisions of the Iowa statute : " All forms of action are abolished in this State ; but the proceedings in a civil action may be of two kinds, ordinary or equitable." " The plaintiff maij prosecute his action by equitable proceedings in all cases where courts of equity, before the adoption of this code, had jurisdiction, and must so proceed in all cases where such jurisdiction was exclusive." " In all other cases, except in this code otherwise provided, the plaintiff must prosecute his action by ordinary proceedings." " An error of the plaintiff, as to the kind of proceedings adopted, shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings and a transfer of the action to the proper docket." " The provisions of this code concerning the prosecution of a civil action apply to both kinds of proceeding, whether ordinary or equitable, unless the contrary appears." ^ The corresponding clauses of the Kentucky Code of Practice are identical in lan- guage with those found in the Iowa statute. ^ It is plain from these citations that the difference between the New York system and that of Kentucky, Iowa, and Oregon is nominal merely ; in fact, the latter simply expresses in words what the former neces- sarily implies. A plaintiff in Kentucky, Iowa, or Oregon, at the commencement of his first pleading — complaint or petition — names the proceedings, ordinary or equitable, as the case may be, and exactly the same rules of pleading, of parties, and of judg- ment apply to the action in either case ; there is no difference of form or method. If it is an ordinary proceeding, it is tried before a court and jury ; if equitable, before a court consisting of the same judge, but without a jury ; and the only result of a mistake in properly entitling the proceeding is to transfer it from one court calendar or docket to the other. § 30. The reformatory legislation first introduced by New York in 1848 has up to this time been adopted in nearly one-half of 1 Code of Iowa, Revision of 1873, 1859, §§ 1, 3, 4, 5, 13. The same is sub- §§ 2507, 2508, 2513, 2514, 2620. stantially true of the Oregon Code. * Kentucky Code of Practice, ed. of 30 CIVIL REMEDIES. the States and in six of the Territories. It may well be regarded, antl I shall treat it, as the Americayi system. While changes may be made in its details, Avhile minor variations do exist in some of the States, it is simply impossible that any of the broad prin- ciples upon which it is founded will ever be abandoned ; so far as the subsequent legislation in other States differs from that originally enacted in New York, it carries out these universal principles to their logical results with greater freedom. Addi- tional States will surely accept this American system, and it will probably become universal throughout the country. The act of the British Parliament, already referred to, is based upon the same general principles. Altliough the practice authorized by that statute will be very different in many respects from the American mode of procedure, yet it will involve an abolition of the common-law actions, and a consolidation of law and equity not only as respects the tribunals, but as respects the judicial means and instruments by which remedies are to be obtained. II. Tlie G-eneral Nature of the Civil Action. § 31. Since the original inauguration of the American system in 1848, no attempt has been made to rearrange and reclassify remedies and remedial rights in accordance with the new order of things. The profession and the courts have been left to work their way in the dark ; and the consequence has been an utter confusion and uncertainty, which have gone far to defeat the beneficial purposes of the reform, and to create a conviction in the minds of many very able lawyers and judges that the change was a positive evil. Although the statute is most peremptory in its terms, going to the very root and overturning the growth of ages, yet in the actual administration of justice it often seems to be forgotten that a new era has commenced ; it often seems to be assumed that the sharply defined separation of legal and equitable methods and the various common-law forms of action still remain in all their arbitrary requirements. This confusion partly results from the fact that the practising lawyer has no hand- book adapted to the present system analogous to the familiar trea- tises upon actions, parties, and pleadings, which were his ready and safe guides under the former dispensation ; and partly from tlie dogged unwillingness shown in some quarters to accept and INTRODUCTORY CHAPTER. 31 conform to the new order of things. I have already shown that the modes of classifying remedies and remedial rights, and the whole practical treatment of this department of the law, based upon the artificial foundation which has been swept away, are wholly inapplicable to the modern procedure, and I need not return to the discussion of that particular point. The truth of the statement is evident without further argument. § 32. The fundamental conceptions embodied in the American system are natural and true. They are in perfect accord with the experience of mankind as shown in the history of legal devel- opment from an infancy of rude barbarism to a maturity of en- lightened civilization. The whole course of such development consists in discarding rules, modes, and institutions, which were arbitrary and formal, and in bringing the law into an agreement with abstract justice and pure morality. We have now reached the stage when, by an act of legislation, our judicial proceedings have in theory at least been made simple, when natural methods have taken the place of the artificial, when the sole object of a forensic trial is to arrive directly at the truth, and when the search after the truth is not confined to any prescribed forms nor shut up between any rigid barriers. The theory is perfect ; but the complete results anticipated from it in practice will not be reached unless the whole department of remedies and remedial rights shall be rearranged and reconstructed so as to be in har- mony with the grand ideas embodied in the theory. Is such a reconstruction possible ? We have seen that the system lately in use was based upon arbitrary external facts, — facts which had no necessary a jyriori existence. The ancient law, in dealing with the department of remedies, in determining the extent of remedial rights, and in prescribing the means by which such rights should be enforced, generally ignored all the distinctions which exist in the very nature of things, and seized hold of collateral incidents which had no possible connection with the essential substance of the right to be maintained or of the relief to be granted. A single illustration will suffice. If the stipulations of a written agreement have been broken, the presence or absence of a morsel of wax or a wafer fastened upon paper, and called a seal, determined which one of two distinct actions was the proper means of recovering compensation in the form of damages. Throughout the entire common-law modes we find this neglect 32 CmL REMEDIES. of essential attributes and this reliance upon outside, immaterial, incidental features, which caused the English jurisprudence to appear arbitrary and even grotesque when compared with that of the enlightened states of continental Europe. § 33. All this must evidently be abandoned, if the spirit of the reformed procedure is to be carried out, and its object is to be attained. The remedies which the law provides for all violations of primar}'- duties and the rights to the same must be arranged, classified, and described according to some qualities that inhere in their very nature ; and to accomplish such a result is the ulti- mate design of the author in preparing this treatise. As a pre- liminary, however, to the final work of describing, arranging, and classifying the remedies themselves, it is important and indeed indispensable that the principles of the single judicial instrument for the prosecution of all remedial rights and the obtaining of all remedies should be ascertained and stated. The Civil Action is therefore the special subject of the present volume. § 34. The single civil action for the protection of all primary rights and the enforcement of all primary duties is the central element of the new procedure. All distinctions between actions at law and suits in equity, and between the different forms of common-law actions, having been swept away, the suit in equity and the common-law actions themselves, as distinctive judicial instruments, have been abrogated, and in their stead has been substituted the one civil action. In its essential features and fundamental principles there is an absolute unanimity among all the codes ; even the divergence from the common type already mentioned in those of three States is only nominal and apparent. There is, it is true, a certain amount of difference in the matters of detail connected with the prosecution of the action, in the incidental steps taken and acts done by the litigant parties from the first issue of process to the final enforcement of judgment by execution ; but with all these variations in the mere practice, the action is everywhere the same in its essential conception and in all its organic elements. If we disregard, therefore, the external, and so to speak accidental details, the reformed American proce- dure, in its statutory creation, in its legislative intention, is a unit, a single, harmonious, identical system. It is possible for this purpose to be carried into effect, and for the procedure to be made in its actual administration what it was designed to be by INTRODUCTORY CHAPTER. 33 its authors. In every State there already exists a body of judicial decisions giving a consti'uction to those fundamental portions of the local code which directly relate to the civil action ; and these decisions are based upon a statutory text wliich is everywhere the same in import, if not absolutely identical in language. By comparing, contrasting, and combining the interpretations thus given by the various tribunals, their agreements and discrepancies can be ascertained, and a single harmonious result can be evolved, by which the ultimate objects of the reform itself shall be accom- plished. I shall attempt to perform the work thus briefly indi- cated. I purpose to describe the civil action of the reformed American procedure ; to discuss its fundamental principles ; and to present it in all its essential features, as the single judicial instrument for the maintaining of all remedial rights and the obtaining of all remedies. In carrying out this design, I shall not deal with matters that are purely of practice ; my purpose is to ascertain and state what the civil action is, and not how it is commenced, prosecuted, or ended. § 35. At the very outset of the undertaking it is necessary to determine with accuracy what are these essential principles and features which constitute the civil action, and which thus form the central element of the entire reformed procedure. First in importance, underlying the whole system, and from which all others flow as natural consequences, is the abolition of the dis- tinction between actions at law and suits in equity. Tiie new procedure is built upon this fact as its very corner-stone ; every other characteristic feature of the civil action results from it as a necessary corollar}^ The interpretation given to this one legis- lative enactment by the courts of any State must determine the nature of the system which is created therein, whether it shall comply with or disregard the intent of the law-makers, whether it sliall accomplish or defeat the objects of the reform. The first and most important step, therefore, in treating of the civil action, involves an exhaustive discussion of this principle. Its extent and limits must be established, and its full force and effect ascer- tained. Before any consistent theory of the civil action can be developed in even a single State, a principle of intei-pretation must be agreed upon and settled by the courts, so general and comprehensive that it can be applied to all the varying relations and phases of the action, and can be invoked with certainty and 3 34 CIVIL REMEDIES. success in determining all the subordinate questions, and remov- ing all the minor difficulties, which shall arise in constructing the body of practical rules that constitute the entire procedure ; and this principle, when thus established in a general form, must be steadily adhered to by the judges without exception or deviation. The courts have, however, fallen far short of this ideal ; and, to the casual observer at least, the product of their judicial labors in respect to this particular subject-matter seems to be a mass of uncertainty, confusion, and contradiction, although upon a closer examination it will be found that some substantial work has been done, some solid foundation of principle has been laid. The causes of this confusion are twofold. The first of them is in- timately connected with the constitution of the courts themselves. From the inauguration of the reform there have existed two schools of judges, the one favoring a broad and liberal interpretation of the statute, a construction in accordance with the spirit of the legislation, and tending to fulfil its evident purpose as a measure in the highest degree remedial ; the other favoring a narrow and technical interpretation, which should restrict the operation of the statute to its mere letter, and which should construe its language in such a manner as to produce the least possible change from the ancient common-law and equity methods of procedure. Although the latter school has at no time controlled the highest courts of more than one or two States, and although it is rapidly disappear- ing even from them, and has in form quite disappeared from all the others, yet the effect of its theories and methods may be per- ceived with more or less clearness throughout the whole course of judicial interpretation wherever the reformed procedure has been adopted. The second cause of the uncertainty and confusion above mentioned is the occasional want of consistency among the judges of tlie liberal school, and their failure in particular cases to maintain and enforce the principle of interpretation which they had approved and adopted in a general form ; and this is the cause which has been most efficient in preventing the growth of a pro- cedure consistent in all its parts, and carrying out in all its details the full purpose of the reform. Although from the operation of these two causes there is in the work of the courts, taken as a whole, much confusion and not a little direct conflict, still there exists the material from which a complete, systematic, and con- sistent theory of the civil action may be constructed. The an- INTRODUCTORY CIL\JTER. 35 tagonistic element introduced by the school of judges who were openly hostile to the new procedure was chiefly confined to the earlier years of the reform ; and the decisions rendered under the influence of their opinions have been to a great extent overruled or displaced by later judgments, which more nearly express the intent of the legislature. The inconsistencies between the prin- ciples of interpretation announced in a general and comprehensive manner, and the practical application thereof to the special in- stances and subordinate details of the civil action, are also grad- ually disappearing ; the traditions of the past, and the ancient doctrines and methods of the common law, are passing away from the memory of the bench and bar, and a closer conformity with the fundamental conceptions of the reform legislation is plainly to be seen in all the States. While, therefore, among the decisions "which have been pronounced since the inauguration of the American procedure in New York in 1848, there are many, even of the highest courts, which must be rejected as utterly wrong, and as opposed to the very letter of the codes, and very many others which must be taken with extensive and important limita- tions ; yet from the materials thus furnished by the tribunals of the several States, from a combination and comparison of their results, the true doctrines and correct rules relating to the civil action may be ascertained, collected, and arranged in such a manner as to present a complete system, — a system that shall represent the spirit and design of the reform legislation, and that shall at the same time be founded, not upon any mere speculations of the author, but upon the solid and sure basis of actual judicial authority and precedent. § 36. As the abolition of the distinctions between actions at law and suits in equity is a fact so broad in its nature that within it are included all the other essential features of the civil action, its full significance must be accurately determined, if possible, at the very commencement of our contemplated work. I have shown in a preceding paragraph that, at a stage in the historical development of the Roman law, the " ordinar}^ " jurisdiction of the magistrates was abolished, and all forms and species of judi- cial controversies were combined in the " extraordinary " juris- diction. The result of this change was a complete amalgamation and unification of law and equity, so that the Roman civil law, as it is embodied in the Codes of Justinian, presents no trace of 36 CIVIL REMEDIES. the dual nature which characterizes our own and the English jurisprudence, and whicli did at one time characterize that of Rome. The codes of procedure do not attempt to effect so radi- cal and sweeping an alteration ; the distinctions between law and equity are not abolished ; these two departments of the municipal law, comprising their distinctive and peculiar primary- rights and duties, and furnishing their special remedies, are left untouched by the legislation, and it is plain that they cannot be consolidated into one so long as the jury trial is preserved and made compulsory. While the change does not extend to the groups of rights and duties themselves which are collectively called " law " and " equity," nor to the remedies which have ]:)een used in maintaining such rights and duties, but is entirely confined to the judicial instrument by means of which the reme- dies are sought after and obtained, in its operation and effect upon that instrument it is complete. All distinctions between the action formerly used to enforce equitable rights and obtain equi- table remedies and those formerly used to enforce legal rights and obtain legal remedies are removed ; and one judicial proceeding, with the same essential principles and features, is to be used in enforcing all species of rights and obtaining all kinds of remedies. Tlie revolution thus made in the ancient modes of procedure was radical and thorough ; it was startling and, in fact, shocking to lawyers who were familiar only with the notions and methods of the common law. Irrespective of its remote effects upon parties, pleadings, and judgments, the immediate and direct consequences of the change involve the combination of legal and equitable causes or rights of action, legal and equitable defences, and legal and equitable reliefs in one single suit. If, therefore, this funda- mental principle introduced by the codes be honestly followed to its logical results, if its spirit be faithfully accepted as t])e true and only guide in the work of constructing a system of practical rules for the bench and the bar, there should be no such distinc- tive names used in legal terminology as " legal action " and " equitable action," certainly no " action at law " or " suit in equity," since with strict accuracy of expression no action can be considered in itself as eitlier legal or equitable ; but, to avoid an inconvenient circumlocution, these descriptive names will doubt- less be retained. Among the topics embraced in the discussion of the general principle are the union of legal and equitable pri- INTRODUCTORY CHAPTER. 37 mary rights or causes of action in the same controversy, the union of legal and equital)le reliefs or remedies, the granting an equitable in place of a legal relief, or a legal in place of an equi- table one, the interposition of an equitable defence to a legal cause of action, and the obtaining a legal remedy upon an equi- table primary right or estate. All of these special features are included within the broad principle which the reformed procedure adopts as its very foundation ; and in developing a complete theory of the civil action they must be exhaustively discussed, with all the aid which can be obtained from judicial decisions. When the fact is fully apprehended that the distinctions between actions at law and suits in equity are abolished, and that there is but one civil action for the maintenance of all rights and the pursuit of all remedies, and when the subordinate elements directly con- nected with and resulting from this fact are clearly perceived, all real difficulties at once disappear ; the entire system of doctrines and rules concerning the nature of the civil action, and its use as an instrument for remedial purposes, is seen to result as a natural and necessary consequence from this one source, and to be scientificall}'" perfect as well as practically eflficient in its com- pleteness and unity. § 37, Immediately connected with the abolition of all distinc- tion between legal and equitable actions is the abrogation of the common-law forms of action. A single civil action sufficient for all purposes requires both of these modifications. No real diffi- culty can arise in giving effect to this particular provision of the codes. The common-law divisions of actions were, to a very great extent, arbitrary and formal ; they could easily have been abandoned while the more substantial line of separation between the action at law and the suit in equity was preserved. While the courts have never hesitated nor suggested a doubt in the enforcement of this special legislative enactment, its full meaning has sometimes been misapprehended. Individual judges have declared that all the ancient legal actions still exist in their sub- stance, with simply the loss of their names. This is, of course, a palpable error ; for all the marks which distinguished one action from another — for example, " covenant " from "debt" or " as- sumpsit," or " trespass " from " case " or " trover " were external, technical, and formal, and have been swept away. The rights of action remain, and the remedies which could be recovered by the 38 CIVIL REMEDIES. use of any particular action maj' still be secured by means of the civil action which the codes have substituted in the place of all the previous forms ; when, under given circumstances an injured party might, by resorting to some one of the various actions at law, have obtained a judgment for land, or chattels, or money, he can, under exactly the same circumstances, recover a like judg- ment by the means which the reformed procedure furnishes to him. To this extent, and no further, whatever was substantial in the old forms of action has been preserved. If the letter and the spirit of the codes are obeyed, all the rules of procedure which were based solely upon the technical and arbitrar}^ differ- ences of form among the ancient common-law actions must be regarded as abrogated with the actions themselves. § 38. The other essential elements or features which belong to the civil action, and inhere in its nature, which determine what it substantially z's, rather than indicate how it must be prosecuted through the courts, are the parties, the mode of presenting the affirmative subject-matter, or cause of action, by the plaintiff, the mode of presenting the defensive sul)ject-matter by the defendant, and the nature and form of the judgment. The doc- trine of parties is of great practical importance ; and it is the one concerning which there has been by far the most confusion, uncertainty, and contradiction among the decided cases. The common-law and the equity theories of parties stood opposed to each other in sharp contrast ; the legal rules were clear, well defined, and intensely technical and arbitrary. In their place the codes have substituted a few broad principles, stated in a very general form without exception or limitation, which are conceded to be a statutory enactment of the doctrines wiiicli prevailed in courts of equity. If these provisions of the statute are accepted according to their literal import, and are applied to the civil action when used for any and all purposes, for maintaining a legal as well as an equitable right, a complete revolution Mill be wrought in the judicial methods of enforcing legal duties and pursuing legal remedies ; all civil actions, so far as concerns the parties and the rules which control their selection, will be assimi- lated to suits in equity. This total change in the nature of actions has been regarded with disfavor by the judicial mind ; and the courts have, on the whole, failed to carry out the plain intent or even the letter of the statutory requirements. Some judges INTEODUCTORY CHAPTER. 39 have boldly taken the ground that these general provisions of the codes can only be applied to equitable suits, and that legal actions are left under the operation of the common-law doctrines. Other judges, while admitting that the equity doctrine, as to parties, has been introduced as a constituent element of the new procedure, have shrunk from its application in numerous instances, and a confusion without rule or guide has been the inevitable result. If the object of the reform is to be accomplished ; if simplicity, certaint}', and directness are to be attained in the modes of pro- cedure ; if controversies are to be determined upon their merits, and not upon any collateral and technical issues, — the uncertaint}^ which now exists to so great an extent concerning the parties to the civil action must be removed, and some plain and correct principle must be firml}^ settled and invariably applied. In arriving at and establishing this universal principle, two alterna- tives only are possible. The provisions of the codes may be confined exclusively to equitable actions, and legal actions may be left under the control of the ancient common-law rules, so that no change whatever in relation to parties would be effected by the reformed procedure ; or these provisions may be followed in their letter and their spirit and rigorously enforced alike in all species of actions, in which case the common-law rules, so far as they differ from the equitable, would be entirely abandoned, and Avould wholly disappear from the system of procedure. The former of these alternatives is possible, but it would be an act of judicial legislation, a substantial repeal of the statutory enact- ment. The second is in plain accord with the spirit and even letter of the codes ; although it involves a bold departure from some of the most distinctive notions of the common law, it is nevertheless entirely practicable and even easy of accomplish- ment. § 39. The mode of presenting the afRrmative subject-matter or cause of action involves both the general principles of pleading- introduced by the codes and their special application on the part of the plaintiff. The theory of pleading contained in the new procedure is often, and perhaps generally, regarded as the most important element of the reform, as the central thought from which all the other portions of the system have been derived. As already stated, I consider this to be an erroneous opinion. Having once establislied the fact of a single civil action adapted 40 CmL REMEDIES. to all rights and remedies, and having abolished the distinctions between legal and equitable proceedings, the method of pleading was a natural and, indeed, necessary result. It is in the pleading, however, that this primary conception of the reformed system of procedure is realized and made practical ; and the two are so mut- uall}- dependent, so closely united, that they cannot be separated, and each exhaustively discussed by itself. The theory of plead- ing, according to the new procedure, is perfect in its scientific character, and in its practical efficiency. It is simple, easy to be understood, and true to nature. If its principles are fully under- stood, no difficulty whatever can arise in their application. It must be conceded, however, that in some of the States the pre- vailing methods of pleading fall far short of this ideal, and are, in fact, justly exposed to every possible objection. There is no method, no system, no rule ; the pleadings themselves are long, filled with redundant and irrelevant matter; the issuable facts are not averred ; the issues are not single, and are often buried and concealed by unnecessary details of mere evidentiary matter. In short, the purpose of reform legislation, as expressed by its authors, appears to have completely failed. Must this result be attributed to faults inherent in the system? INIost emphatically, no. The condition which I have thus briefly described exists in certain States not because the principles of the new procedure have been carried out into practice, but because the}^ have been utterly overlooked, neglected, and al)andoned. Although these imperfections in the actual modes of pleading under the codes are far too common, the remedy is simple and easy. It is possible to construct a system based upon the plain text of the statutes, and upon its correct judicial interpretation, which shall express the thought of the law-makers, and accomplish the purpose which they had in view. Whatever conflict of opinion there may have been at an early day among the judges, there is at present a remarkable uniformity in their announcement of general doctrines ; and the failure on tlieir part has rather been in applying these doctrines to particular cases and in enforcing their observance upon the bar. The reformed theory of pleading, when rightly understood, and when its principles are faithfully followed in the practical administration of justice, tends to create singleness, clearness, and unity in the issues ; and in these particulars it actually excels the boasted common-law method of special plead- INTRODUCTORY CHAPTER. 41 ing. The study of this theory demands an investigation of the general principles which lie at its foundation, and does not require an acquaintance with any prescribed forms. Since all the arbi- trary and technical dogmas of the common-law procedure have been abandoned, the art of pleading has been made a department of the broader art of narrative composition. To construct a per- fect pleading, according to the ideal of the codes, requires (1) an accurate knowledge of the law, that is, of the primary and reme- dial rights and duties of the parties under any given circum- stances ; (2) a familiarity with the facts of the particular case, which involves the discriminating with certainty between those facts that are material and issuable and those which are eviden- tiary ; and (3) the ability of writing the English language to the extent at least of composing a clear, distinct, and brief narrative of these material facts, in such manner that the legal rule which they involve shall be inferred from them with certainty. The first and second of these elements constitute the principles of pleading so far as they form a part of procedure and of juridical science ; the third belongs to rhetorical science, and its connection with the law is simply accidental. It is very evident from this analysis that the forms and precedents of pleadings play a much less important part now than they did in the ancient system. When the success of litigant parties depended upon an absolute compliance with technical rules, and upon an accurate recital of certain arbitrary and technical phrases, — when, in fact, the pleader must rely upon his memory more than his reason, — the use of well-established and approved forms was proper, and, in fact, necessary ; but since these features no longer disfigure the civil action and disgrace the administration of justice, the lawyer is not forced to consult such guides ; if he has mastered the prin- ciples of the art, he needs only to cultivate his power of expression and composition in order to render himself an adept in pleading. § 40. The proper mode of presenting the defensive subject- matter of the action, in addition to these general principles which are common to all pleadings, embraces certain features which are peculiar to the defendant's contention. By combining all the defensive elements which the codes provide, the general and specific denials, the allegations of new matter, and the claims of affirmative relief, the reformed theory far excels in scientific completeness and in practical efficiency the common-law methods 42 CR'IL REMEDIES. which have been so highly extolled by their advocates as the perfection of logic applied in judicial affairs. Here, again, the actual practice in many States has fallen far short of the ideal presented b}' the legislation ; but here, also, the defect is not in the system itself, but results from a failure to apprehend its principles and to enforce its doctrines. The full discussion of this feature of the civil action involves the followingr subordinate topics : the use of the specific or the general denial in the formation of issues ; the office of the specific denial in the raising of single issues, and its analogies with the special traverse ; the office of the general denial, its contrast with the common-law general issue, and the defences which it admits ; the doctrine of new matter, and the distinctions between it and the ancient plea in confession and avoidance; the union of different defences in the same answer, and herein of equitable defences interposed to legal causes of action ; and the recovery of affirmative relief by the defendant, which includes the special subjects of counter- claim and set-off. The full force and effect of the denial, both specific and general, its power to raise single and definite issues, its superiority to the general issue, and the defences which it ad- mits, are subjects of the highest importance in the judicial prac- tice, but have been too much neglected, both b}' the courts and by the bar. In developing the reformed procedure into a definite system, the rules which determine the nature of new matter and the effect of the general denial are more uniform, accurate, and scientific than the analogous rules of the common-law, which related to the general issue and the use of special pleas hy way of confession and avoidance ; and in this respect the superiority of the new system over the old can be shown beyond the possi- bility of doubt. Some of the defensive elements belonging to the civil action are entirel}^ original. The doctrine of counter- claim, for example, is not a mere extension of the set-off and the recoupment of damages ; it is a wholly new and independent conception ; and, although objected to and even derided by the early opponents of the reform, it has been bodily adopted in the recent modification of the English procedure, and greatly enlarged in its scope and operation. § 41. The last of the distinctive elements or features which constitute the civil action is the judgment. In thus designating it as a constituent of the action, I do not refer to the very relief INTRODUCTOKY CHAPTER. 43 which is granted to the litigant parties, — the recovery of land, chattels, money, or other special benefit. Such final recovery is the remedy to obtain which the action is prosecuted, and, strictly speaking, forms no part of the action itself, but is rather its object or result. The questions which arise in connection with this branch of the civil action do not, therefore, relate to the final right established by the judgment and the relief secured by it, but to its nature and form as a part of the judicial jyroceeding, and especially to the modifications made by the codes in the com- mon-law doctrines concerning its unity and indivisibility. The equitable and the legal theories of the judgment, like the same theories of the parties, were in marked contrast and opposition to each other. In equity it was possible, and, indeed, common, for a decree to be rendered which discriminated among the plain- tiffs or the defendants, and pronounced in favor of some against the others without regard to any unity or identity of right or interest. The object of the adjudication was to determine the entire controversy according to the individual rights of all the litigants ; and if they were before the court as parties to the suit, so that they would be concluded by the decision, it was not of vital consequence whether they were plaintiffs or defendants. In short, the Court of Equity had full power to sever in its de- cree, to adjudge in favor of some plaintiffs and against others, in favor of some defendants and against others, to confer relief upon the defendants or some of them against the plaintiffs or some of them, and finally to settle the equities among the co- plaintiffs or the co-defendants as against each other. The com- mon-law theory of the judgment was in every respect different from this. Based upon the intensely arbitrary notion of joint rights and obligations, it regarded the demand of co-plaintiffs on the one side, and the liability of co-defendants on the other, except in a certain well-defined class of cases, as a unit, as ut- terly incapable of being severed, as something which must be established as to all, or must fail as to all the parties. In no instance was affirmative relief granted to the defendant ; recov- eries by plaintiff against plaintiff, or by defendant against de- fendant, were unknown. Since the right of the plaintiffs or the liability of the defendants was conceived of as one and indivisible, the recovery must be against all the defendants equally and in favor of all the plaintiffs alike. As a general rule, therefore. 44 CIVIL REMEDIES. independent of statute and of the few excepted cases, the judgment in a common-law action could not be severed, and be pronounced in favor of some plaintiffs, and against the others, nor in favor of some defendants and against others. No principle of the common-law procedure was more fumly established than this ; and it represented all the technical and arbitrary notions which characterized the entire system. The codes are unanimous in their dealing with this subject. In the most direct and com- prehensive language they reject these narrow dogmas of the law, and establish the liberal doctrines of equity, which they apply to the civil action without exception or limitation. The statutory provisions are so clear, definite, and certain that no reasonable doubt as to their scope and meaning is possible. Although the purpose of the law makers, and the theory of their legislation, are so plainly expressed, the courts have hesitated and lialted in giving effect to this intent and in carrying out this design. The change made in the ancient order of things is so radical and sweeping that judges sometimes shrink from its contemplation, and seem to regard the statute as though it could not mean what its language declares. This evasion or ignoring of the legislative will has by no means been universal. In many States the courts have conformed to the letter and the spirit of the codes, and have by their decisions established the true principles which can and must be adopted and used in constructing and arranging the practical rules of procedure that regulate the recovery of judg- ments by means of the civil action. § 42. Having described the distinctive elements and features of the civil action which determine its peculiar nature as a judicial instrument for enforcing remedial rights and obtaining remedies, I shall, in conclusion, sketch the plan of the present volume and state the order which will be pursued in its discussions. The general subject of which it treats may be properly styled " The Civil Action according to the Reformed American Procedure." The remaining portion of the work is divided into five chapters, which follow the order of topics already indicated in the preced- ing paragraphs ; and these chapters are again separated into sections and other minor subdivisions. Chapter First is an exhaustive discussion of the fundamental principle upon which the new procedure is based, — the abolition of the distinctions between actions at law and suits in equity, and the doctrine of INTRODUCTORY CHAPTER. 45 the unity in form and nature of the single civil action created by the codes ; Chapter Second treats of the parties to the civil action ; Chapter Third, of the presentation of the affirmative subject- matter or cause of action by the plaintiff; Chapter Fourth, of the presentation of the defensive subject-matter of the action, includ- ing the recovery of affirmative relief by the defendant, either by counter-claim, cross-complaint, or set-off; Chapter Fifth treats of the judgment especially in its relations with the parties. By pursuing the order here indicated, the theory of the civil action, so far as it involves doctrines and principles peculiar to the reformed procedure, is presented in an exhaustive manner. § 43. In carrying out the plan which has been explained in this introductory chapter, my object has been to furnish for the bar and the bench a treatise which may be useful to them in their professional labors, and for the students of law a text-book which may aid them in acquiring a knowledge of the reformed procedure in all of its essential and fundamental principles. To this end the work is entirely based upon the text of the codes and upon the decisions of courts Avhich have interpreted that text. In no instance have my own opinions or speculations unsupported by authority been stated as established rules ; whenever such opinions are given, their proper character is plainly indicated. Among the vast number of decisions, many of them conflicting, I have endeavored to distinguish between those which repudiate or neglect the legislative intent and those which follow and give it effect ; and upon the basis of the latter class I have attempted to construct a symmetrical and harmonious system which embodies the true principles of the reformed procedure. PART FIRST. THE CIVIL ACTION ACCORDING TO THE AMERICAN SYSTEM OF PROCEDURE; ITS ESSENTIAL PRINCIPLES AND FEATURES. CHAPTER FIRST. The Principle of Unity in all Judicial Proceedings ; Abolition of the Distinctions between Actions at Law and Suits in Equity, and of all the Common-law Forms of Action ; Adoption of a Single and Uniform Judicial Instrument called the Civil Action, by wiiicii the Remedies known to the Law are to be obtained, and the Remedial Rights are to be enforced. § 44. The following is the form of the simple but most com- prehensive provision found in the codes of procedure and prac- tice acts, embodying the fundamental principle which is the subject-matter of the present chapter, and which is the single source from which all the other portions of the system flow as necessary consequences : " The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished; and there shall be in this State hereafter but one form of action for the enforcement or protection of private rights and the redress of private wrongs, which shall be denominated a civil action." ^ In a very few of the States the change from the former modes is not so complete, and a slight distinction is preserved between suits brought to 1 N. Y. § 69 (3339) ; Cal. § 307 ; S. C. In several of the States the language of § 92 ; Nev. § 1 ; Neb. § 2 ; Kans. § 10 ; the section differs slightly from the form Ohio, § 3 ; Ind. § 1 ; Minn. Stat, at Large, given in the text, the last clause, after tlie ch. 41, § 1 ; Mo. Wagner's Stat. ch. 110. word "abolished," reading as follows: art. 1, § 1 ; Wis. R. S. ch. 122, § 8 ; Flor. " And in their place there shall be here- § 49; N. C. § 12; Dacota, § 22; Idaho, after but one form of action, which shall § 1 ; Wash. § 2 ; Wyoming, § 3 ; Hon- be called a civil action." tana, § 1 ; Arizona, § 1. The provision The provision of the Missouri, Nevada, in the latest Revision of the California Idaho, Montana, and Washington Codes Code (1872) is as follows : " § 307 (§ 1). is the same in substance and almost iden- There is in this State but one form of tical in language with that quoted above civil actions for the enforcement or pro- from the California statute, tection of private rights, and the redress or prevention of private wrongs." 48 CIVIL KEMEDIES. obtain legal and those brought to obtain equitable relief. All the common-law forms of action are abolished, and one civil action is established for all remedial purposes : the proceedings in this civil action, however, may be either (1) ordinary or (2) equitable. Tlie plaintiff may prosecute his action by equitable proceedings in all cases where courts of chancery, before the adoption of the code, had jurisdiction, and must so proceed in all cases where such jurisdiction was exclusive. In all other cases the plaintiff must prosecute his action by ordinary proceed- ings. The plaintiff indicates by the formula, " In ordinary proceedings," or " In equitable proceedings," at the commence- ment of his petition or complaint, to which class the action belongs. The provisions of the code regulating the prosecution of actions apply to both kinds of proceedings unless the contrary expressly appears. In fact, the only real distinction between them is that they are to be placed upon different dockets of the court, so that the suits of the one class will be tried by a jury, while those of the other class will be tried hy the judge without a jury, and the evidence in equitable proceedings may be taken by deposition instead of by oral examination in open court. ^ It is evident that in these States the difference kept up between legal and equitable actions is more nominal than real, and that the principle of absolute unity prevails as truly in their codes as in those of the other commonwealths. As this principle of unity in all civil judicial procedure, of a single instrument by which remedies may be obtained, rights asserted, and duties enforced, lies at the bottom of the entire system ; as this par- ticular doctrine has given rise to a great conflict of opinion and of decision ; and as a failure to apprehend its exact import, extent, and limits must inevitably defeat the beneficial results which the reform was intended to produce, — I shall at the outset examine it with care, and shall endeavor to ascertain the true intent of the law-makers, and how far that intent has been followed and carried out by the courts. That the discus- sion may be exhaustive, and may present the subject in all its phases, the present chapter will be separated into the following sections: Section I. A theoretical unit}^ or the tlieory of an absolute union of legal and equitable actions. I shall, in the 1 Ky. §§ 1-13 ; Iowa, §§ 2007, 2508, 2513, 2514, 2520 ; Oregon, §§ 1, 37G. A THEORETICAL UNITY IN PIIOCEDUIIE. 49 subsequent sections, inquire how far this theory has been adopted by the legislatures, and to what extent the courts have gone in combining the legal and equitable methods of administering remedial rights, viz. : Section II. The general principles as to the union of legal and equitable methods which have been an- nounced by the courts. Section III. The union of legal and equitable causes of action and remedies in one suit. Section IV. The setting up of equitable defences in legal actions. Section V. The bringing a legal action based upon an equitable primary right. Section VI. The nature of actions, and the essential distinctions among them. SECTION FIRST. A Theoretical Unity in Procedure ; or the Theory of an Absolute Union of Legal and Equitable Actions into a Single Judicial Instrument for the Enforcement of all Remedial Rights and the Obtaining of all Remedies. § 45. To aid us in determining just what the statutes, and the courts in construing them, have done in the way of reducing all forms of judicial action to one, we may properly inquire what is the pure ideal or theory of such a unity. We may assume that the legislature had before them in contemplation such an ideal or theoretic scheme ; and if we can by -dnj a priori reason- ing, by any inferences drawn from the very nature of the subject- matter, arrive at this theoretic conception, we shall certainly have done much towards ascertaining the ultimate legislative intent. Whether the legislature has by apt language and by sufficient provisions worked out and expressed this intent in a complete manner, is another and very different question. It is very possible, and in fact probable, that the law-makers had before them an ultimate object conceived of with some clearness and distinctness, but that they have fallen far short of reaching that object. In seeking to discover this supposed ideal or theor}^ the following questions must be considered and answered : What is an absolute and complete union of legal and equitable methods and actions, so that one judicial instrument should be sufficient for the enforcement of all remedial rights and the obtaining of all remedies ? How far is such a complete and absolute unity pos- sible? What features and elements in the nature of primary 4 50 CIVIL REMEDIES. rights and of remedies, if any, stand in the way of such resnlt? Wliat features and elements, on the otlier hand, tend to make such an amalgamation practicable ? In order that these ques- tions may be properly discussed and correctly answered, we must, in the first place, obtain a clear and accurate conception of equity itself. In what does equity consist ? What are its constituent parts ? In what respect does it differ from the other great branch of our jurisprudence, which ds termed the common law, or " the law " ? It must be confessed that great confusion exists in respect to these elementary and fundamental notions. We are familiar with the terms " equity " and "law;" we constantly speak of equitable and legal rights, causes of action, and modes of procedure ; and 3'et very little attempt has been made by even the best writers to point out the exact elements of distinction between the subjects of which we so frequently speak. The historical origin and growth of equity jurisprudence have been sufficiently illustrated in the introductory chapter. As the final result of this growth, the municipal law of England and of the several States was separated into two divisions or branches, each administered by different tribunals, and each conferring different remedies or reliefs. Are these two divisions or branches antag- onistic to each other, or are they simply complementary, or does one merely occupy a sphere which the other does not ? Are the primary rules, rights, and duties embraced in the department of law different from the primary rules, rights, and duties which are embraced in the department of equity ; or does the distinction lie solely in the remedies and remedial rights which arise from the violation of the common primary rules, and in the judicial processes by which these remedies are obtained ? These ques- tions present themselves, and must be answered, if we would determine the exact nature of equity as distinguished from law. I cannot reply to these inquiries in detail; to do so would require an exhaustive treatise upon equity jurisprudence. I can only give general results, and illustrate these conclusions by a few familiar examples, leaving it to the reader to pursue the illustra- tion through the entire domain of equity. § 4G. Applying a thorough analysis to this department of the municipal law, examining the essential nature of each practical rule and principle contained in it, equity as a whole, and so far as it is different from the law, is resolved into and consists of the NATURE OF EQUITY. 51 following constituent parts ; namely, firsts certain primary rules, with the primary rights and duties flowing from them, irrespec- tive of the remedies which are different from the primarj' rules upon the same subject-matter, with the primary rights and duties flowing therefrom, which are contained in tlielaw ; and, secondly^ certain remedies which are known and conferred, irrespective of any distinction in the primarj^ rules and rights for whose viola- tion the remedies are granted. The peculiar feature of equity, which distinguishes it as a department from the law, does not consist solely in the fact that remedies are known and used by it which the law does not know and use, nor solely in the fact that there are primary equitable rights and duties, irrespective of the remedies different from any at law, but in both of these facts combined. These propositions can be made plain by a few illustrative examples. First, equity as a department contains certain primary rules, with the primary rights and duties flowing from them, different from any rules upon the same subject-matter embraced in the law. In this proposition we disregard for the present the remedies which are given for the violation of primary rights ; and we might assume, for the purposes of the discussion, that the remedies, the reliefs, given by equity were exactly the same, no more, no less, and no other than those given by the law, whatever might be the nature of the primary right broken ; that is, that equity could give no judgments except the recovery of pos- session of lands or chattels, or the recovery of a sum of money. Upon that hypothesis there are primary equitable rights in relation to particular subject-matters quite different from the primary legal rights in relation to the same subject-matters. In reference to most of these it would be proper to say that they are additional to those which exist at law ; they do not contradict, they are not antagonistic to, any rules upon the same subject-matter which the common law provides ; but they are supplementary, touching upon particulars in reference to which the law is silent. Between this class of equitable rules and the corresponding legal rules, there is therefore no conflict; each is absolutel}' true in all places and at all times ; the equity courts recognize and administer one, the law courts recognize and administer the other, without clash- ing or discord. But in respect to another portion of these primary equitable rules and rights, it must be said that they are not merely additional to, but are in conflict with, the legal rules and rights 52 CIVIL REMEDIES. upon the same subject-matter ; between tliis class of equitable rules and rights and the corresponding legal rules and riglits there is therefore an antagonism ; the equity courts admit and uphold a particular right as growing out of a particular condition of cir- cumstances which the law courts not only refuse to recognize, but which they would deny and oppose. To this extent there is a contrariety and discord between the two departments of the municii^al law, which cannot be concealed, but which has gradu- ally grown less and less, and which will finally disappear. § 47. A few examples will illustrate these statements. At an early day the common-law rule was peremptory that the liability of the obligor upon a sealed undertaking, like a bond, could only be discharged by an instrument of the same legal value ; that is, by a sealed release or acquittance. Mere payment, although evidenced by a written receipt, was not enough. The compulsive efficacy of the seal could only be overcome by an act of a legal nature equally high. If, therefore, the debtor on a bond had paid the demand in full, and had even taken a written receipt therefor, but had failed to procure a surrender of the obligation into his own custody, or a release of his liability thereon, the creditor might still sue in a common-law action on the bond, and the law gave no defence ; the law said, in fact, that the liability still existed ; the primary right of the creditor and the primary duty of the debtor remained unchanged. In the course of time the equity courts intervened ; and this was one of the first steps which equity took in its long march towards the present completed results. The debtor, upon the above-mentioned facts existing, by commencing a suit in chancery, would obtain the remedy of an injunction perpetually restraining the creditor from the prose- cution of his common-law action, and perhaps tlie remedy that the bond should be surrendered and cancelled. It is not the form of remedy at which I now wish to look, but at the 'primary equitable right for whose maintenance the remedy was contrived. Plainly the primary right and duty which equity here conferred upon the creditor and the debtor resj^ectively were diametrically the opposites of the primary right and duty wliich the law con- ferred upon the same persons. The law said the original right of the creditor and duty of the debtor were exacth- the same as though the bond was in full force after default in payment. Equity said this original right of the creditor and duty of the NATURE OF EQUITY. 53 debtor had been absolutely changed and destroj'ed, that the lia- bility on the obligation had ended, that the duty of the obligor to pay had gone, and that in its place a right had arisen that the evidence of such payment and discharge should be made perfect by the acts of the obligee. It would be a mistaken view to assert that equity here simply granted a remedy to the debtor which the law did not give. Remedies are not conferred by equity courts any more than by law courts, unless there is a primary right and duty which has been violated, and from the breach of which a remedial right and dut}^ arises. In the case supposed, the law most emphatically said the primary right of the creditor upon the bond still existed unaffected, and the x^rimary duty of the debtor remained undiminished, and gave the legal remedies to enforce the same. Equity as emphatically denied all this, and asserted that there was no such primary right or duty left in existence. There was, therefore, a plain and direct conflict in the primary rights and duties which flowed from exactly the same facts and circumstances. This is a simple illustration of the class of equitable primary rights and duties which are opposed and antagonistic to the corresponding primary legal rights and duties. It is true this particular antagonism no longer exists. Either by means of the gradual adoption of equitable principles by the common-law courts or by means of statutes, the same rule as to the discharge of a sealed obligation applies in law as in equity, and the defence of payment and discharge can be set up in a legal action ; but this does not lessen the appropriateness of the illus- tration. § 48. If we carefully analyze the whole body of equitable primary rules, we shall find but few in which there is any direct conflict with the legal rules relating to the same subject-matter. In many instances where there was once such contrariety, we shall discover that the law has been changed from its original arbitrariness, and has been made to conform with the equitable doctrine. Another example will illustrate the large class of equi- table primary rules and rights which are simply additional to those recognized by the law. A. enters into a contract in writing by which he agrees to convey to B., by a good and sufficient deed, a parcel of land, upon being paid the purchase price in a stipulated manner; the price is paid., and A. refuses to convey. Or, again, A. receives from B. a sum of money under an author- 54 CIVIL REMEDIES. ity and agreement to purchase therewith for B. a parcel of land, taking the deed to the latter ; he purchases the land with the money, but takes the conveyance thereof to himself. In the first case the law sees nothing but a contract, and the rights which flow therefrom. B. has a right in jyersonam against A., but no right in rem, no right of property in the land. There has been a violation of contract ; and, the law, regarding no other relations between the parties, gives to B. the remedy of com- pensation. This primary personal right, and also this remedial right, would, upon the death of B., pass to his administrators or executors. Equity, applying the great principle of regarding as done what ought to have been done, clothes B. with another and broader primary right additional, but in no wise antagonistic to that which the law creates. It says that B. has acquired a right in rem, a right of property in the land, an ownership which is called equitable, it is true, but none the less an actual ownership. The land is B.'s, and not A.'s ; and the proprietary right upon B.'s death descends to his heirs, and is subject to the dower of his widow. There is nothing here contrary to the legal view; because while equity gives to B. a property in the land, and fur- nishes him with remedies appropriate to maintain and secure that proprietorsliip, it does not deny nor override his legal right ; the latter is left in full force and effect. In fact, B. has an elec- tion. Relying upon his mere personal right flowing from the contract, he or his executors or administrators may sue in a court of law to recover damages for a violation of the agreement ; or, relying upon his real right, — his ownership in the land, — he or his heirs may sue in a court of equity, and have his proprietor- ship established, the legal muniments of his title perfected, and the possession transferred. In the other supposed case there is a contract and a fraud. The law still sees nothing but a personal right growing out of the deceit and the fraudulent violation of the agreement ; while equity, not denying that, recognizes also a real right in the land, treats B. as the owner tliereof, and enables him to establish that ownership, and to obtain possession. It is a glaring error to suppose, as does a recent English writer on the prinoipl(>s of equity, tliat in these and similar instances equity only furnishes different remedies from those known to the law. I repeat, there can be no remedy without a primary right vio- lated ; and it is undeniable that equity conceives of B. as clothed NATURE OF EQUITY. 55 with a primary right of property in the land altogether unlike the personal right arising from contract only, which the law ad- mits. The truth of tliis proposition is demonstrated by the single fact that in one instance the right passes to heirs as an inheri- tance, and in the other to the administrators as a thing in action. It is true the equitable estate is in certain respects inferior to the corresponding legal estate ; but it is an estate which can be transmitted, and is between the immediate parties as perfect as an estate in law. These examples sufficiently illustrate my position, and the very large class of cases in which equity supplements the law within the domain of primary rights and duties. § 49. Secondly. In the second place, equity, as a department of the entire municipal law, consists of the remedies which it confers upon litigant parties. Viewing the subject in this aspect, we disregard, for the time being, the nature of the primary rights on account of whose violation remedies become necessary ; and we might assume it to be true, so far as the present inquiry ex- tends, that the primary rights which equity acknowledges and maintains are exactly the same as those acknowledged and maintained by the law. The peculiarity of its remedies, as com- pared with the kinds of relief given by law courts, is undoubtedly the most prominent feature of equity, and is so striking that some writers have spoken of equity as consisting alone of rem- edies and remedial rights. This opinion is certainly erroneous ; for, important as are the remedies which it furnishes, they neces- sarily assume some primary right which has been broken. These various elements will appear from a simple analysis. A certain physical act or transaction occurs ; one person makes an agree- ment to convey his farm to another upon payment of the pur- chase price. This is the fact, the transaction ; and it remains the same, whatever rules of law relate to it, or rights arise from it. The common law, as we have seen, recognizes a primary personal right in the vendee and duty in the vendor, growing out of the contract, and from their violation admits the reme- dial right to compensation, and the remedy of damages. Equity, from the same facts, recognizes in the vendee a primary real right over the land, an equitable property therein ; and in order to protect this ownership, which is from its nature imperfect, it must contrive some remedy entirely diff"erent from that given by the law. The remedy of damages is fitted to and sufficient 56 CIVIL REMEDIES. for the legal personal right of contract, but is utterly unfitted to and insufficient for the equitable real right of propert}^ in the land. The new remedy of specific performance is therefore based upon this equitable primary right, and is made necessary by it. S 50. The remedies themselves which equity administers are, in their relation to the law, of three distinct kinds : (1) Those which are utterly different from any that are known and used in the legal procedure ; (2) Those which the legal procedure recog- nizes, and the benefits of whicli it obtains in an indirect manner ; (3) Those which are the same in substance and form, both in equity and law. Here, again, a few examples will do all the work of an exhaustive analysis. The classes to which all common-law remedies may be reduced are few and fixed ; but in equity there is no positive limit to the variety of relief which the court can grant, suited to the innumerable changes of cir- cumstances that may arise. The classes of legal remedies are but two, — the recovery of possession of specific things, lands, or chattels, and the recovery of a sum of money. In the first of these two classes must be included the special common-law methods of partition, admeasurement of dower, and the like, which are, in fact, recoveries of the land. Of the innumerable varieties of equitable reliefs, there are many which have no resemblance whatever to either of these two classes, nor to any particular instances embraced within them ; among them, the preventive remedy of injunction, the restorative remedy of mandator}^ injunction, applied in cases where phj^sical obstruc- tions are removed, the remedy of re-formation or re-execution, that of specific performance, and others which need not be specified. In the second place, there are equital)le remedies which the legal procedure does not grant directly, but the bene- fits of which it obtains and confers indirectly. A single example will suffice, and it is the fumiliar relief of rescission or cancel- lation. A court of equity entertains an action brought for the express purpose of procuring a contract to be rescinded, and renders a judgment which confers the exact remedy demanded by the suitor. A court of law entertains an action for the re- covery of specific chattels or of money as debt or damages ; and although nothing is said concerning it, either in the pleadings or in the judgment, a contract is actually rescinded, and the entire NATURE OF EQUITY. 57 decision is based upon that fact. Here the remedy of rescission is not in terms asked for nor granted by tlie court of law ; but all its effects and benefits are indirectly conferred in the legal action. A contract which had been entered into between the parties is regarded as cancelled and rescinded, or else no judg- ment for possession of the chattel, or for recovery of the money value or damages, could have been rendered. Finally, there is a class of remedies used by courts of equity which are identical in substance with those relating to the same subject-matter used by courts of law. Familiar instances of this kind are the damages which are frequently awarded in equitable actions as ancillary to the main lelief ; the partitioning of land among co- owners, and the admeasurement of dower to widows, in which the final relief is exactly the same as that conferred by the cor- responding legal actions ; the process of accounting and deter- mining of balances in favor of one or the other party, the result of which is identical with that reached by the now ob- solete common-law action of " account." § 51. Equitable remedies may also be examined in respect of another element which has a direct connection with the union of legal and equitable procedure into one uniform system. We may inquire, What of all the remedies which equity now ad- mits and grants might possibly be administered by the courts of law through the means of purely legal methods, including the jury trial ; and what, if any, cannot be thus administered, but require a continuance of the modes of procedure that are purely equitable ? In accounting for the rise and growth of the equitable jurisdiction, it has sometimes been said that the whole proceeded from the inability of juries to pass upon any issues which were not reduced to the affirmance and denial of a single fact ; that, as the ancient law courts had no power of deciding disputed facts except by a jury, a resort to other tribunals, which consisted only of one or more judges, became an absolute neces- sity in the large class of cases in which the facts were compli- cated, and the issues involved. There is in this account something of truth and much of error. What is the exact prov- ince of the jury in the trial of a common-law action ? Its func- tions should not be confounded with those of the court. It passes upon issues of fact, and announces its decision in the form of a verdict, which, at the present day and in this country, is 58 CIVIL REMEDIES. with few exceptions a general verdict. Upon this verdict the court pronounces the judgment, or, in other words, awards the remedy which the hxw designates as appropriate. The jury has nothing to do with this remedy ; its function is limited to the preliminary inquiry whether the litigant party is entitled on the facts to the remedy demanded ; and, it having answered this question in the affirmative, the court completes the judicial pro- ceeding, and grants the relief. Now, the nature of this remedy does not in the least depend upon the simplicity or the complexity of the issues of fact which the jury decides as a preliminary step ; that issue may be single and simple, or it may be complicated and involved, obscure and difficult, as complex as any which are ever presented to a chancellor ; but, when once determined, the judge awards the final remedy of pecuniary damage, recovery of lands, or recovery of chattels, as the case may be. It is perfectly clear, upon this statement of the jury's functions, that after it had performed its part, and passed upon the controversy of fact, the court might upon such decision award many other remedies now termed equitable with the same ease, the same propriety, and tlie same certainty that it now awards the legal remedies of pecuniary compensation, possession of lands, or possession of chatr tels. There would be nothing in the nature of the special equi- table remedy conferred which would add to the labor of the jury, or increase the complexity of the issue which it must decide. Among such equitable remedies are injunction, specific perform- ance, cancellation or rescission, re-execution or re-formation, and perhaps some others. It would certainly be within the power of a }uvy, for example, to determine whether a defendant was com- mitting acts of waste, or of continuous trespass, or of nuisance, so that the court might grant a judgment for a perpetual injunc- tion, or for a removal of the nuisance ; or whether tlie defendant had entered into a contract to convey land which he refuses to fulfil, so that the court might grant a judgment for specific per- formance ; or whether the defendant had been guilty of fraud in procuring a contract to be executed, so that the court might grant the remedy of cancellation ; or whether the contract had been executed under a mutual error, so that the court might grant a judgment for re-formation. The jury could as easily and readily pass upon these several issues of fact preliminary to tlie award of the special relief thereon as it could decide the same issues when NATUEE OF EQUITY. 59 they were to be followed by a judgment for pecuniary damages. I am not now arguing that a change in these respects would be an improvement : I am simply showing that there is nothing in the nature of many important and very common equitable reme- dies which necessarily removes them from the power of the law courts and from the province of a jury ; the issues of fact upon which the remedial right depends may be determined by a jury, and the special relief thereon granted by the court. § 52. On the other hand, there are forms and kinds of equita- ble remedy which are so intimately and necessarily connected with the very processes of examining and settling the facts upon which the right to the relief depends, that a judicial determina- tion of the issues in the common-law method by means of a jury is practically impossible. The experience of English and Ameri- can tribunals has demonstrated the truth of this proposition. A single example is sufficient. The remedy of accounting, of tak- ing, stating, and settling an account, and the ultimate balances payable to the litigant parties, although it results in a mere judg- ment for the payment of money in one or different sums, neces- sarily involves, under the various circumstances in which it may be used, a special kind of judicial labor which is utterly beyond the competency of a jury. In the same class is to be placed the marshalling of assets in all its forms and with all its incidents, and other remedies of a like general nature. § 53. The results of the foregoing analysis may be summed up as follows: Equity, as a distinct department of the municipal law, consists in part of primary rules and rights flowing there- from different from the legal rules and rights relating to the same subject-matter, and in part of special remedies and remedial rights. A portion of these primary rules and rights are strictly antagonistic to and in conflict with those which the law would appl}' to the same facts and events, while the remaining portion are simply additional and supplementary to the corresponding legal rules and rights. The remedies which form so large an element in equity are divided in a similar manner ; many of them are different in every respect from those conferred b}' legal tribu- nals ; the beneficial effect of others the legal procedure procures in an indirect manner, while the residue are identical in sub- stance and in their final form with the legal judgments which are obtained upon the same facts and for the same purposes. 60 CIVIL REMEDIES. § 54. Having thus inquired into the essential nature of equity, and ascertained its constituent elements, we are enabled to dis- cuss the theory or pure ideal of a union between law and equity with greater accuracy and certainty. The theory of a complete union or consolidation does not and cannot involve a change in the rules as to primary rights and duties, which form a most im- portant division of equity. The entire municipal law now con- tains : (1) Legal rules defining rights and duties applicable to all the facts and circumstances which have been brought within the range of jural relations ; (2) Equitable rules defining rights and duties applicable to certain determined classes of these facts and circumstances, which are additional and supplementary to the legal rules applicable to the same classes ; and (3) Equitable rules applicable to a comparatively very small number of these facts and circumstances, which are really contrary and antagonistic to the legal rules applicable to the same. There is, therefore, no clashing or conflict, no doubt or uncertainty, as to the final abso- lute rights and duties of individuals, except so far as such con- flict and uncertainty may spring from the existence of the very small number of rules in the third class, where the antagonism between law and equity does actually exist. It is certainly strange that in an age and country advanced in civilization the municipal law should present such an anomaly ; it is certainly absurd, for example, that a married woman's contracts should be utterly void according to the doctrines of the law, while, according to the doctrines of equity, they may be valid and enforceable out of her property. If any change is to be made in accomplishing an absolute union, it must be in the legal and not in the equitable rules where this discord exists. The latter are confessedly the more just, and more in accordance with the sentiments and opinions of the age ; while the former have become practically obsolete, and would be totally abandoned in any revi- sion or codification of the entire jurisprudence. An absolute union, therefore, would leave in existence and in active opera- tion all the rules of equit}', which define primary rights and duties, and all the rules of the law, except those few in number which are directly opposed to some particular equitable doctrine or principle. The municipal law would thus be homogeneous and unified ; and were it not for the distinction in the remedies, wliich would still remain, the names " law " and " equity " might be abandoned. A THEORETICAL UNITY IN PROCEDUHE. 61 § 55. The theory of an absolute union does not imply a change in or abolition of any remedies, either legal or equitable. The municipal law in the administration of justice, and for the pur- pose of maintaining the primary rights and duties of individuals, permits and uses (1) the remedies which the common law and the law courts contrived, and (2) those which equity and the equity courts contrived. There is no interference, no conflict, among them ; there is even practically no superfluity ; for the legal remedies which are identical in substance with the equita- ble ones appropriate to the same circumstances have become obsolete, and exist only in theory. This system of remedies and remedial rights is not in any proper sense double ; it is single, uniform, and homogeneous, as far as homogeneity is practicable. The most that can be said is that under certain circumstances the injured party has, upon the same state of facts, an election among the different remedies offered him for his complete protec- tion. Amid the infinite diversity of facts, circumstances, and relations which can occur in the movements of modern society, amid the endless variety of primary rights which must spring therefrom, and amid the countless forms which delicts or viola- tions of duty may assume, it is impossible that the ultimate rem- edies and remedial rights should be reduced to any few and well-defined classes. Some classification, however, is possible, since it is possible to make some broad divisions of primary rights and of ordinary delicts : and the law long ago took advantage of this possibility, and made the classification as simple and as com- prehensive as the nature and condition of the subject then per- mitted. The result was the three established forms of relief which have been known as legal : the judgment for the recovery of possession of land, for the recovery of possession of chattels, and for the recovery of money. Beyond these the forms and kinds of relief must of necessity be special, adapted to the innu- merable varieties of facts, circumstances, and relations. Instead of curtailing, abridging, or abolishing any known kinds of equita- ble remedy, new and additional ones must, from time to time, be invented to respond to new wants, facts, and relations. No legis- lation will be needed to efi'ect the modifications and additions which may become necessary in the progress of the social move- ment ; for the courts possess the inherent power, which they have had and used from the earliest period, of meeting the 62 CrVIL REMEDIES. new wants of to-day by means and instruments which had only a potential existence yesterday. We therefore, through this investigation into the very nature of law and of equity as cor- relative parts of one great whole, reach the conclusion that a theory or pure ideal of a perfect union does not involve or admit the abolition of any equitable rules which define primary rights and duties, nor of any equitable remedies and remedial rights which now exist. If any change should be made within the domain of primary rights or in that of remedies, it would consist in abrogating those few legal rules that stand in opposition to acknowledged doctrines of equity, and those few legal remedies and remedial processes that have become obsolete, because equity, under the same circumstances, furnishes the identical relief in a simpler and more efficacious manner. § .56. The legislation which created the reformed American system of procedure is in exact harmony with these conclusions. Not a provision is to be found in the code of any State adopting the new sj^stem which requires, suggests, or even intimates an abrogation of equitable primar}'- rights, or equitable remedies and remedial rights ; nor, in fact, can a provision be found which ex- pressly contemplates an absolute unification of law and equity into a single homogeneous whole. The change provided for is not in primary rights nor in remedies, but in the methods, means, and instruments by which these primary rights are to be main- tained, and these remedies secured. Undoubtedly a removal of all distinction between these external means and instruments, as it must produce an identity of remedial methods, will tend to obliterate all marks of distinction between the two great depart- ments of primary rights and duties which are called equity and law, and to reduce them in time to a condition of oneness ; but this result is an indirect though natural consequence of the re- form legislation, and is not expressly provided for by the legisla- tion itself. The most explicit and positive language contained in all the codes but three is the following : " The distinction be- tween actions at law and suits in equity, and tlie forms of all such actions and suits heretofore existing, are abolished.'' There is plainly no suggestion here of a change in primary lights nor in remedies. "Actions" and " suits " and their "forms" are alone spoken of. Nothing is said even of a union between law and equity, and no hint is given of an alteration in the essential A THEORETICAL UNITY IN PROCEDURE. 63 features of either, — in the rights and duties which it creates, or the remedies which it confers. It is a misapprehension not only of the spirit but of the plain letter of the code to suppose that it affects the constitution of the municipal law, or goes below the external forms of procedure, the judicial machinery by which the law is made compulsive in the enforcement of its commands. There is thus a perfect accord between the actual legislation and the theory which has been deduced from an analysis of the essen- tial notions of equity and of law. § 57. As this theory does not contemplate a destruction of existing remedies, nor directly propose an immediate amalgama- tion of the two correlative departments of law and equity, and as it is confined to a union of external and formal methods, the question arises, What is meant by such a union of external and formal methods ? How far is it possible, while retaining the primary rights and the remedies which have been called legal and equitable, to break down and destroy all distinctions be- tween legal and equitable actions, and to construct a single judicial instrument for the prosecution of all civil remedial rights and the procuring of all civil remedies ? It is my pur- pose, in the remaining portion of the present section, to give a purely theoretical answer to these questions, without refer- ence to the terms of the positive legislation creating the reformed system of procedure. The absolute union or con- solidation of external methods which is spoken of, regarded in its highest or ideal perfection, involves the notion of a single action by which to administer all remedies, legal or equitable, and to maintain all primary rights, which action should be the same for all species of relief, and under all possible circumstances. The sameness in this action, with reference to the proceedings therein, and especially with ref- erence to the legal or equitable remedies it is designed to con- fer, may consist in several particulars, which I shall examine separatel}^ and in respect to each of which shall inquire whether an identity of method is possible. § 58. (1) There may be the perfect sameness in the manner of commencing the action under all circumstances, whatever be the nature of the remedy sought or of the primary right main- tained. This feature of identity is certainly possible ; and it is, moreover, very eas}' of attainment. That the mode of initiating (34 CIVIL REMEDIES. the proceedings, the forms and kinds of the process, ma}^ be the same for all actions and for all remedies, is too plain to require aro-ument. Each of the codes contemplates at least this feature of identity, and no practical difficulty is found in carrying out the designs of the legislature. (2) The second feature of same- ness may be in the method of stating all possible causes of action and of defence ; that is, in the pleadings. In other words, the design of the legislature in uniting all modes of procedure may be that, whatever be the remedy invoked, whatever the primary right violated, the acts and facts which constitute the right and the breach of it should be stated in the same manner and ac- cording to the same principles. Notwithstanding the conflict of opinion upon this particular point to be found in some of the judicial decisions, I believe that the feature of unity here de- scribed is not only possible, but that it is in complete accordance with the highest and most scientific theory of judicial procedure. It is of course impossible that in every case, legal or equitable, the cause of action or defence should be stated in exactly the same manner and form, since there must be essential differences amono- causes of action and defences which no legislation can efface. It is possible, however, that all causes of action and all defences should be set forth in accordance with the same prin- ciple. It has been said that the common-law and the equity methods of pleading were very unlike, and that even since the codes a legal action must necessarily be stated in pursuance of the former, and an equitable action in pursuance of the latter mode. Whatever the courts may have decided, this proposition is not true ; no such necessity exists. A single, uniform theory of pleading may be followed, and may be applied to every possi- ble cause of action and defence. The common-law pleading did not state the facts exactly as they occurred, but rather the con- clusions which the law inferred from such facts ; and in the most frequent of all actions — assumpsit — it constantly charged upon the defendant the making of promises which were entirely fic- titious. The equity system stated the facts, but it overlaid them with an unnecessary mass of evidence, — unnecessar}^ I mean, as a statement of the cause of action or defence, and only useful as a means of making the party a witness in the cause either for or against himself ; and it used an abundance of technical forms which had lost all their significance. A theory of pleading A THEORETICAL UNITY IN PROCEDURE. 65 which, in all cases and while seeking to obtain all remedies, should merely state the facts that constitute the cause of action or the defence, without legal inferences and without minute de- tail of evidence, would be the same in principle, however simple or however complicated the cause of action or defence might be. This would be at once the most practical and the most scientific method, and it would appl}' to every conceivable case. If the plaintiff in one action alleges the single fact of a sale out of which the defendant's liability arises, but does not aver any promise which was never made, the principle is the same as that which in another action requires the statement of the affairs of an insolvent partnership involving the most complicated accounts and marshalling of assets. In both these instances the pleader may be guided by the same theory, however unlike the result may be in external form ; for the unlikeness exists in the facts themselves, and not in the manner of alleging them. It is possi- ble, therefore, that this feature of unity should exist ; that in all actions, whatever be the nature of the primary right and what- ever remedy be demanded, the causes of action on one hand and the defences on the other may be stated according to one com- mon principle. That tliis unity was contemplated by the legis- latures which adojited the new system is very plain, because the language of the statute admits of but one meaning and is peremp- tory : that the spirit as well as the letter even have often been disregarded by the judges in the actual interpretation which they have given is equally plain. I pass this most important subject with no more present discussion, but shall return to it in a future chapter. § 59. (3) The third feature of unity or identity of method would be an absolute sameness in the manner of conducting the trial, whatever be the nature or object of the action, whatever be the primary right invaded, or the remedy sought to be obtained. This general sameness in the trial, if carried to the highest degree, w^ould necessarily embrace the following subordinate particulars: namely, that the trial should be held in the one court or class of courts having jurisdiction to award all species of remedies ; that the facts should be brought before the tribunal in the same man- ner, or, in other words, the mode of introducing the evidence should be the same, either by oral testimony or by depositions and the same rules should govern its admissibility ; that the deci- 5 66 CIVIL REMEDIES. sion of the issues, whether of fact or of Law, should be made by the same tribunal, announced in the same manner, and have the same effect. An identity in modes of trial plainly includes the foregoing special features, and beyond a doubt such an identity is in the nature of things possible. It is not onl}^ practicable, but it is the most natural and logical order of administration that all judicial controversies should be tried by a single court or class of courts, and that the witnesses should be examined and the evi- dence introduced in pursuance of one common mode. This has been done in New York since 1848, with respect to the common- law and the equity tribunals, and in the other States which have adopted the American system ; and England has even gone much farther, and has provided for the consolidation of all the higher tribunals — those which had special jurisdiction as well as those which had general — into one Supreme Court for the transaction of ever}^ species of judicial business, and has provided that one form of proceeding, one action, shall be used in all controver- sies and processes for obtaining remedies, whether legal, equita- ble, in admiralty, in bankruptcy, probate, or divorce. It is also practicable, in the nature of things, that all issues, either of law or of fact, in every kind of action, legal or equitable, should be decided by the same tribunal in the same form and with the same effect. This tribunal, however, could not be the jury. There are controversies utterly beyond its competency. By abolishing the jury trial in civil causes, and by constituting all courts upon the model of the Court of Chancery, with one or more judges to determine all the matters in dispute, the theoretic identity in the mode of trial would be readih^ attained. While this unity is thus possible, it is only possible by abandoning an institution which may be regarded as an essential element of Saxon civiliza- tion. As long as the jury trial lasts in civil causes, as long as actions based upon the violation of certain primary rights and seeking certain remedies, must be decided by a dual court con- sisting of judge and jur}^ while all other actions must or may be decided by a court consisting of a judge only, an absolute identity in the mode of trial is plainly impracticable ; and this difference is so important, so vital, that it extends through the whole frame- work of actions, and sejiarates them into two distinctive classes, notwithstanding the positive and sweeping language of the stat- ute, which puiports to abolish all distinctions and forms, and to pre- A THEORETICAL UNITY OF PROCEDURE. 67 scribe one uniform mode or instrument for the procurement of all remedies. The jury trial, which in most of the States is guarded against hostile legislation by the restraints of the constitutions, is, therefore, a physical obstacle in the way of a perfect theory of unity in legal and equitable methods, and will continue to be so until the people cease to believe in the formulas of words that have been repeated from generation to generation as arguments in support of the institution. § 60. (4) A fourth feature of identit}^ in external methods would be the adoption of the same rules as to parties and their applica- tion to all actions, whatever be the rights which they redress or the remedies which they pursue. This particular element of a comprehensive unity is certainly possible ; but it would require a complete change in certain legal notions as to rights and liabilities which are as old as the common law itself. To illustrate : the common law does not consider it possible for two or more persons to be united as plaintiffs in the same action upon a contract, un- less they are all for the purposes of that action equally united in interest, unless the benefit of the contract belongs to them as a unit, and unless the right in them was created at the same time and by the same act. When they are thus united, " jointly interested," the law requires that all of them be made plaintiffs. On the other hand, the law does not admit the possibility of two or more persons being proceeded against as defendants in one action upon contract, unless each is liable for the whole claim, unless this liability rests upon them all as a legal unit, and unless it was created at the same time by one and the same act or instrument. The common law knows nothing of defendants against whom a judgment for the entire amount of debt or dam- ages is not to be rendered, nor of defendants who became liable at different times and upon separate instruments. The power to sue the makers and the indorsers of a note or bill in one action did not exist at the common law, but was created by statute. The rales of equity procedure are in every way different from these legal doctrines. Persons are constantly made defendants against whom a partial or perhaps no relief is asked or granted, and even defendants are not unfrequently entitled to relief as against each other, or as against the plaintiffs, or some of them. The same is to a certain extent true of plaintiffs. In short, the legal notion of a necessary unity in the rights of the plaintiffs or 68 CIVIL REMEDIES. in the liabilities of the defendants is unknown in equity. Persons are made parties because they have some perhaps remote interest in the controversy, and it is expedient to bind them by the decree. It is undoubtedly possible to extend these general principles as to parties, so that they may be applied to all actions, legal as well as equitable ; but, as already stated, the technical notions above described of joint rights and liabilities must be abandoned, and the equitable conceptions must take their place. This revolution seems to have been accomplished in several of the Western States, whose legislation in this respect has gone much further than that of the New York code. A single example will be sufficient. When a thing in action, not being negotiable, is assigned, and the assignee brings an action upon it, he is required by the provisions of cer- tain State codes to make the assignor a party defendant in order, in the language of the statute, "to answer to the assignment." No judgment is asked or granted against this additional defend- ant, and the whole proceeding is opposed to common-law notions, but is, nevertheless, eminently equitable, sensible, and just. In an action between the alleged assignee and the debtor alone, the assignor would not be in tlie least degree bound by the judg- ment ; the debtor might, therefore, be exposed to a second suit brought by the assignor himself, and to a second recovery therein, if the pretended assignment were disproved. The provision of the statute requiring the assignor to be made a party to the proceeding, so that he may contest the assignment, and be con- cluded by the decision, is admirable every way, and an easy adap- tation of equitable doctrines to common-law actions. § 61. While this theoretic unity in respect to the parties is thus practicable and easy to be obtained if the bench and the bar would forget some technical rules of the common law which never had any foundation in the truth, yet the theory has not been fully carried out into practice in all the State codes. In New York, and in those States which have exactly copied its legislation, the ancient legal conceptions as to par- ties and joint rights and liabilities are not so expressly abol- ished as to produce the perfected result which, perhaps, the codifiers themselves designed. The experience of the Western States, to which reference has been made, demonstrates the perfect ease with which the change can be made ; and the equi- table rules as to severance in the judgment, and among parties A THEORETICAL UNITY OF PROCEDURE. G9 jointly interested, can be extended to all legal actions. In short, these ancient rules of the common law were supported by no reasons either of principle or of expediency ; the so-called argu- ments in their favor were, like so much of the old technical legal reasoning, a mere repetition of words having no basis of fact upon which to rest. Where a right is held by two or more, there is no real difficulty in the way of permitting one or some of them to sue ; when a liability is imposed upon two or more, there is no real difficulty in the way of permitting one or some to be sued ; and in either case the rights of all parties can be easily protected, so that the creditor shall in no instance receive but one satisfac- tion, or the debtor be compelled to pay the demand a second time. § 62. (5) It might appear that a fifth feature of the theoretical identity in judicial methods W'Ould be the reducing of all judg- ments to one single form, or to certain classes of forms in all ac- tions, whatever be the nature of the primary right or of the delict by which it is violated. There is, however, no such element of identity possible, nor is it involved in the theory of an absolute unification of legal and equitable modes of proceeding. The judgment is the official statement and award of the remedy which the law confers in the particular case. All judgments could not be assimilated and reduced to a single form, or even to a few clearl}'- defined classes, without destroying the diversity in the remedies themselves, and reducing them to a single kind, or to the prescribed classes ; and this, as we have seen, is not contem- plated by any theory of reform in judicial methods. The various steps and processes leading up to the judgment may be made the same in all cases ; but the judgments themselves, containing as they do the very final remedies which are the objects of all judi- cial controversies, must be as different in form and substance as the remedies themselves. § 63. If we pass, however, from this essential character and substance of the judgment to its incidentals, rules in relation to its mode of rendition may be adopted and applied to all actions, and thus all the identity of which the subject is capable may be produced. The rules which regulate the subjects of joint recovery and liability, and the severance in the recovery or lia- bility among the parties which prescribe the relations between the recovery and the existence of proper parties to the action, 70 CIVIL REMEDIES. which define the instances in which affirmative relief may be granted to the defendants or to a portion of tlicni, and those in which like relief may be obtained by plaintiffs against other plaintiffs, or by defendants against other defendants, — in short, all the rules which are concerned with the external form and manner of rendering the judgment and of giving it an official character and compulsive efficacy upon persons and things can readily be made uniform in their application to all actions, what- ever be the nature of the primary right or of the remedy conferred. The ancient doctrines of the common law which controlled the relations of judgments with the parties to the record, and which often prevented any determination of the actual rights and duties of the litigants as among themselves, were arbitrary and technical to the last degree ; they were sustained by no reasoning based upon the nature of the subject-matter, but were the results of a legal habit of mind which delighted in logical word-chopping, and preferred to rest the decision of judicial controversies upon refined distinctions in which there was nothing distinguished rather than upon considerations of substantial justice. In pro- ducing the uniformity of regulation which I have described, the principles and doctrines of equity must be substituted in place of the technical rules of the common law. That this change is practicable and easy has been demonstrated by the experience of those States which have carried out the theor}^ of the reformed American system of procedure to its logical results. There can be no doubt that the framers of the New York code accepted this theory, in a general manner, as correct ; and I think they intended to construct their procedure in reference to parties and judgments upon it, to the exclusion of the common-law no- tions in respect to the same subjects from all classes of actions. How far they succeeded in expressing those general intentions by means of the particular provisions of the statute, and how far the courts have gone in developing tlie thought of the law-mak- ers by iheir judicial construction, will be considered in subsequent chapters. § 64. I have in the foregoing analysis examined and stated the ideal of an absolute unity in judicial methods for the enforcement of civil rights and duties and the procuring of civil remedies ; what such a theory involves ; what features or elements are pos- sible, and what impossible. The conclusions thus reached may A THEORETICAL UNITY OF PROCEDURE. 71 be summed up in the following propositions. The theory of an absolute union does not affect the primary civil rights and duties, nor the final remedies and the rights thereto ; it leaves the pri- mary rights called legal and those called equitable, and the reliefs bestowed for their violation, substantially untouched. It is con- fined, therefore, to the judicial methods by which these remedies are to be obtained. An absolute unity in these methods, by means of a single form of civil action adapted to the enforcement of all civil rights and the recovery of all civil remedies, is theoret- icalh' possible. Such an absolute unity is, however, practically impossible so long as the jury trial is required in certain classes of causes, and is dispensed with in others, since that institution creates an essential difference in the manner of conducting actions, and in their very framework, which cannot be obliterated by any statutory declaration. In respect to all other features and ele- ments of an action, — that is, except so far as the jury trial pro- duces a modification, — the theoretical identity in all judicial proceedings is practicable, and may consist in the mode of com'- mencing the action, in the method of stating the cause of action or the defence, in the manner of establishing the facts by evidence, in the rules relating to parties, and in those relating to the awarding of relief and the rendition of judgment. Having thus exhibited a complete theor}'- or pure ideal of such a unity in methods as would remove all distinctions and create but one judi- cial instrument for the protection of all civil rights and the pur- suit of all civil remedies, I shall next inquire how far this perfect theor}' has been worked out by the legislatures, and especially by the courts in their interpretation of the statutes which have established the reformed American system of procedure in the various States. SECTION SECOND. The General Principles as to a Union of Legal and Equitable Methods wliich have been adopted by the Courts ; how far snob, a Uuion has been practically effected by Judicial Literpretation of the Statutes. § 65. It is not my purpose in the present section to discuss in order the particular practical questions that have arisen in the construction of those provisions of the State codes of procedure 72 CIVIL REMEDIES. and practice acts which abolish the distinction between legal and equitable actions ; namely, the combining of legal and equitable causes of action and defence in the same suit, the interposing of equitable defences to legal causes of action, the granting of legal remedies where the pleadings had contemplated equitable ones, or of equitable remedies where the pleadings liad contemplated legal ones, and the like. I intend rather to ascertain, if possible, and state the general principles of construction which the courts have finally adopted and applied in the settlement of these and all other similar questions which have arisen from this most dis- tinctive and important feature of the reformed procedure. These principles are fundamental ; they underlie the whole process of judicial interpretation ; they shape the entire action of the courts in building up a system of practical rules out of the broad and somewhat vague enactments of tlie statute. A knowledge of these controlling motives and opinions which have guided the judges in their work of construction is of the highest importance ; with it we may attain a systematic and harmonious result ; with- out it we shall certainly be left in a cliaos of conflicting decisions. In pursuing this inquiry, I shall follow the order developed in the preceding section, and shall ascertain how far the interpreta- tion given by the courts conforms to, and how far differs from, the theory of absolute unity therein set forth. § 66. The adoption of the Code of Procedure by the Legisla- ture of New York in 1848 was undoubtedly a shock to the opin- ions and prejudices of lawyers who had been accustomed to regard the former system as perfect in principle, and while it met with a strenuous opposition from many members of the bar, it is not surprising that some of the judges also for a time found it difficult, if not impossible, to yield obedience to the letter even of the statutory requirement, much less to accept its spirit with zealous approval. Opinions are to be found, delivered at an early day by very eminent and able judges, sometimes sitting in the court of last resort, which, if taken as correct expositions of the statute, Avould have reduced the great reform to the empty change in a few words ; the ancient names would have been abolished, but all the substance, all that was represented by those names, would have remained in full force and effect. According to tliis view there had been no union of methods into one common mode of proceeding, no abolition of any real distinctions between legal and equitable GENERAL NATURE OF THE CIVIL ACTION. 73 actions, because such a result is simply impossible of attainment.^ Since the New York Constitution provides that the Supreme Court of that State shall have general jurisdiction in law and 1 See Reubens v. Joel, 13 N. Y. 488, 493, and Voorliis v. Cliild's Ex'rs, 17 N. Y. o54, 357-302, per S. L. Selden J. As these opinions of Mr. Justice Selden furnish the clearest and ablest statement of the peculiar theory of interpretation mentioned in the text, I quote from them at some length. In Reubens v. Joel, he says, p. 493 : " What are the distinctions between actions at law and suits in equity ? The most marked distinction obviously consists in their different modes of relief. In the one, with a few isolated exceptions, relief is invariably adminis- tered, and can only be administered, in the form of a pecuniary compensation in damages for the injury received ; in the other the court has a discretionary power to adapt the relief to the circumstances of the case. By what process can these two modes of relief be made identical ? It is possible to abolish one or the other, or both ; but it certainly is not possible to abolish the distinction between tiiem. The legislature may, unless prohibited by the constitution, enact that no court sliall hereafter have power to grant any relief except in the form of damages, and thereby abolish suits in equity, or that all courts sliall have power to mould the relief to suit the particular case, and thereby virtually abolish actions at law as a distinct class. To illustrate by a single case: they may provide that when the vendor of land who has contracted to sell, and has received the purchase-money, refuses to convey, the vendee shall have no remedy but an action for damages, or, on the other hand, that he shall be con- fined to a suit for specific performance ; but it is clearly beyond the reach of their powers to make these two remedies the same. Another leading distinction be- tween common-law actions and suits in equity consists in their different modes of trial. The former are to be tried by a jury, the latter by the court. Can the legislature abolish this distinction ? They might, but for the restraints of the con- stitution, abolish either kind of trial, or reclassify the classes to which they apply ; but they cannot make trial by jury and trial by the court the same thing. It is plain that the ordy way in which the dec- laration contained in § O'J can be made good, is by abolishing both the forms of trial and the mode of relief in one or the other of the two classes of actions. When this is done, and not until then, shall we have one homogeneous form of action for all cases. Has the legislature power to do this 1 [lie here cites certain clauses of the New York Constitution recognizing the existence of equity.] Will it be con- tended, in the face of these provisions, that the legislature has the powerfto abolish the jurisdiction of the courts either at law or in equity 1 Tlie constitution gives to the Supreme Court general jurisdiction both in law and in equity. Can this be taken away ? It authorizes the legislature to " alter and regulate " both jurisdictions. Does this mean that it may abrogate them 1 It is, in my judgment, clear that the legislature has not the constitutional power to reduce all actions to one ho- mogeneous form ; because it could only be done by abolishing trial by jury, with its inseparable accompaniment, compen- sation in damages, which would not only conflict with the provisions that preserve trial by jury, but would in effect subvert all jurisdiction at law, as ail actions would thereby be rendered equitable ; or by abolishing trial by the court, with its ap- propriate incident, specific relief, which would destroy all equity jurisdiction, and convert every suit into an action at law." . . . p. 498. "But the legislature, in the specific provisions adopted by it, has not attempted to carry into effect the general declaration made in § 09." He cites §§ 2.53, 254, which require the jury trial in all actions in which it had heretofore been used, and provide a trial by the court for all other actions, and §§ 275, 27G, which regulate the relief to be granted, and pro- ceeds : " Instead of being abolished, the essential distinctions between actions at law and suits in equity are Iw these sec- tions expressly retained. Actions at law are to be tried by a jury, suits in equity 74 CIVIL REMEDIES. equity, and speaks in one or two other places of "equity,'' it has been said from the bench that a statute abolishing the distinctive features of equity would be unconstitutional, and that the New York code, so far as it purports to produce that effect, is void.^ The system which this school of judges has constructed out of tlie reformatory legislation is the following.^ The distinctions by tlie court. Damages are to be given as heretofore in the former, and specific relief in the latter." 1 Selden J., in Reubens v. Joel, 13 N. Y. 494, 495. 2 Selden J., in Reubens v. Joel and Voorliis V. Child's Ex'rs, tibi sup. The latter case was an action against the sur- viving members of a partnership and the executors of a deceased member to re- cover tlie amount of a promissory note made by the firm. The complaint was in the usual form ; it contained no allega- tion tiiat the survivors were insolvent or that judgment had been recovered against them, and prayed the usual judgment for the amount of the debt. On demurrer by the executors, on the ground that no cause of action was stated against them, the complaint was dismissed, and the plaintiff appealed. The Court of Appeals placed their decision upon the ground that an equity action could not be maintained against the personal representatives of a deceased partner to recover a firm debt without averring and proving that the survivors had been proceeded against at law to execution, or that they were in- solvent, and that this rule had not been changed by the code. Mr. Justice Selden, while agreeing with this position, went far beyond it. The plaintiff insisted that the action was legal against the survivors, and that the executors were proper parties de- fendant under § 118, which provides that " any person may be made a defendant who has or claims an interest in the con- troversy adverse to the plaintiff, or who is a necessary party to a complete determina- tion or settlement of the questions involved therein." The learned judge answers that although the language of this section is broad enough to cover both legal and equitable actions, yet it is a mere stat- utory enactment of the rule which had always prevailed in equity, and must, from the nature of the actions, of the tribunals which pass upon the issues, and of the judgments rendered, be confined to suits in equity, leaving actions at law to be governed by the same rules in respect of parties which prevailed before the code. He says (p. 358) : " It is supposed by some that it was intended to abolish by the code all distinctions, not only in form, but in substance, between legal and equitable ac- tions ; and it must be conceded that many of its provisions taken by themselves might seem to indicate such an intent ; and yet nothing can be clearer than that the legis- lature has wholly failed to carry into efiect such an intention if it existed. On the contrary, the code expressly retains the principal differences which distinguish the two classes of actions. Actions at law were to be tried by a jury, suits iu equity by the court. This distinction re- mains undisturbed. . . . Now it is plain that, if we would make of the code a con- sistent system, we must construe it, not in view of the general proposition, obviously untrue, that the distinctions between ac- tions at law and suits in equity' are abol- ished, but in the light afforded by a comparison of its various provisions." He proceeds to point out the practical difficulties in the way of applying the equitable doctrine as to parties to all common-law actions, and reaches the con- clusion that, as the code recognizes equity suits and legal actions, the provisions of § 118 must be limited to suits in equity, and adds (p. 301) : " It is worthy of re- mark that the construction here con- tended for is that which has been of necessity to a very great extent practi- cally put upon the various provisions of the code. Cases are found so naturally to arrange themselves according to the classification which existed prior to the code that the distinction l)etween legal and equitable actions is nearly as marked upon all the papers presented to the court as formerly. The same names are not GENERAX NATURE OF THE CIVIL ACTION. 75 between law and equity inhere in the very nature of the subject, and cannot be abolished. The legislature may, unless restrained by the constitution, abrogate the law or equity, but cannot destroy the distinctions between them. The language of the statute, however, is not broad enough to effect such a change ; it is con- fined to external acts and forms, to the methods of obtaining remedies, to the incidents of actions, and not to their substance. Even when thus restrained, there are necessary elements in the subject-matter which cannot be affected by legislation, and which limit, therefore, the general phrases of the code. Assuming that primary legal and equitable rights and duties remain unaltered, essential differences must exist in the actions brought to enforce the legal and the equitable classes of rights, and also the various species of legal rights. For this reason the substantial features and characteristics of the various actions at law must and do subsist, and the rules which are based upon these facts must and do continue in operation. The names " covenant," " debt," *' trespass," " assumpsit," " bill in equity," and the like, have been abandoned, but all the things which these names repre- sented are left in their essentials exactly as before the attempted reforms. This theory of interpretation reduces the Code of Pro- cedure from its position as the embodiment of a new system for the administration of justice to the level of a mere amendatory act regulating the minor details of practice. The explanation here made of it is now useful only as a matter of history ; it never became controlling ; the opinions which it represents were those of individual judges rather than of courts, and they have been repeatedly and completely overruled by tribunals of the highest authority. 1 § 67. This protest against the changes in the time-honored used, but the nature of tlie cases has not tions." In accordance with this theory, changed, nor have the distinctions been the same learned judge in various otlier abrogated. Very few attempts have been cases held that the legal and equitable made to carry into practical effect the idea actions are still to be distinguished in of blending legal and equitable causes of their modes of pleading, in the rules as to action in one common proceeding. Were parties, and in those respecting the rendi- it necessary to the decision of this case, tion of judgment. In short, he would pre- I should be prepared to hold that that serve all the substance of the two classes, clause of the constitution which provides and only give up the names, that 'there shall be a Supreme Court ^ See the comments upon Mr. Justice having general jurisdiction in law and Selden's opinion in Reubens v. Joel, made equity ' presents an insuperable barrier by Com stock J., in N. Y. Ice Co. i'. North- to any legislative merger of the jurisdic- west Ins. Co., 23 N. Y. 359, 360. 76 CIVIL REMEDIES. modes of judicial procedure, this antagonism to the principle of the new system, which was at the outset confined to a small though verj able portion of the bench, was long since abandoned ; and the courts have in most of the States not only conformed to the letter of the reformatory legislation, but have to a consider- able extent, but not, as I think, to the full extent, accepted and carried out its evident spirit and meaning. I spealc advisedly in this statement. While tlie courts on the whole, and in all the States, do not show a disposition to defeat the reform by a hostile construction, but rather seem desirous of promoting it, and estab- lishing it upon a secure basis, there are yet marked differences in this respect among the States, and also strange inconsistencies in the application of general principles to particular instances. The acceptance of the reformed procedure is much more con- strained and reluctant in certain of the States than in the re- maining and by far the larger portion of them. Again, a lack of uniformity will be discovered in applying the most general and comprehensive princi]3les of interpretation to the various elements and features of judicial procedure. All these inconsis- tencies, when they exist, have arisen from the incapacity of the judicial mind to apprehend the fact that legal actions and equi- table actions have been abolished, and a " civil action " has been substituted in their place. Conceding this truth in general, courts have sometimes failed to act upon it in reference to some subordinate particulars ; the result has been, not a perfect har- monious structure built up by judicial labor, but a structure, although following on the whole a comprehensive and symmet- rical plan, yet marred b}' many breaks and unfinished parts, and misshapen additions. In short, the true fundamental principles of construction have been generally adopted as guides, the true spirit and design of the reform system have been generally apprehended ; but in descending to the details, and in prescribing the practical rules of procedure, this principle and this spirit have been sometimes forgotten or intentionall}' disregarded. § 68. It has been abundantly settled, in perfect accordance with the theory developed in the preceding section, and in strict conformity with the language and design of all the State codes and practice acts, that the new system has not produced, and was not intended to produce, any alteration of, nor direct effect upon, the primary rights, duties, and liabilities of persons created GENERAL NATURE OF THE CIVIL ACTION. 77 by either department of the municipal law.^ Whatever may- have been the nature or extent of these primary rights and duties, 1 Peck V. Newton, 46 Barb. 173, 174, per Parker J. ; Cole v. Keynolds, 18 N. Y. 74, 70, per Harris J. ; Lattin v. McCarty, 41 N. Y. 107, 110, per Hunt C. J. ; Meyers V. Field, 37 Mo 434, 441, per Holmes J. ; Kiehardson v. Means, 22 Mo. 495, 498, per Leonard J. ; Maguire v. Vice, 20 Mo. 429 ; Matlock V. Todd, 25 Ind. 128, 130, per Elliot J. ; Woodford v. Leavenworth, 14 Ind. 311, 314, per Worden J. ; Emmons v. Kiger, 23 Ind. 483, 487 ; De Witt v. Hayes, 2 Cal. 403, 468, per Murray C. J. ; Grain V. Aldrich, 38 Cal. 514 ; Cropsey v. Sweeney, 27 Barb. 310 ; Klonne v. Brad- street, 7 Ohio St. 322, 325, per Bowen J. ; Garrett v. Gault, 13 B. Mon. 378, 380, per Else J. ; Bonesteel v. Bonesteel, 28 Wis. 245, 250, per Lyon J. ; Dickson j;. Cole, 34 Wis. 021,625; Martin?;. Mobile & O. R. R., 7 Bush, 116, 124 ; Richmond, &c. T. Co. V. Rogers, 7 Bush, 532, 535 ; Law- son V. Plaff. 1 Handy, 449, 452 ; Claussen i;. La Franz, 4 Greene (la), 224; Smith V. Rowe, 4 Cal. 6. As the very language used by the judges in certain of these cases will illustrate better than any de- scription the exact views of the judiciary in regard to this fundamental principle, and especially the extent to which it has been applied in the controversies before them, I shall quote from it at some length. Peck v. Newton, 46 Barb. 173, was an action to recover possession of land, the plaintiff's title being equitable, substantially that of a vendee, and the defendant being an intruder without title so far as tlie case discloses ; the complaint simply demanded possession. The court held that the plaintiff could not recover; that he should have obtained a specific performance from his vendor, and then brought an action for the possession. Parker J. said (p. 174) : " Although the code has abolished the distinctions be- tween actions at law and suits in equity, so far as it regards the forms of procedure, Still the principles by which the rights of the parties are to be determined remain unchanged." Whether the court properly applied the principle which tliey invoke may well, as I think, be questioned. Does not the plaintiflTs ability to recover the possession in this action depend upon the " forms of procedure" rather than upon " the principles by which the rights of the parties are to be determined " 1 This particular question will be examined at large in section five of the present chap- ter. In Cole V. Reynolds, 18 N. Y. 74, Mr. Justice Harris thus states the doc- trine (p. 76) : " The principles by which the rights of the parties are to be deter- mined remain unchanged. The code has given no new causes of action. In some cases parties are allowed to maintain an action who could not have maintained it before ; but in no case can such an action be maintained when no action at all could have been maintained before upon the same state of facts. If, under the former system, a given state of facts would have entitled a party to a decree in equity in his favor, the same state of facts in an action prosecuted in the manner pre- scribed by the code will now entitle him to a judgment to the same effect. If the facts are such that, at the common law, the party would have been entitled to judgment, he will, by proceeding as the code requires, obtain the same judgment. The question, therefore, is, whether, in the case now under consideration, the facts, as they are assumed to be, would, before the adoption of the code, have sustained an action at law or a suit in equity." The leading case of Lattin v. McCarty, 41 N. Y. 107 (1869), is very de- cisive, both from the manner in which the questions arose, from the allegations of the pleadings, and from the language of the opinion delivered by Hunt C. J., and concurred in by the entire court. It, of course, overrules all prior decisions in that State which were opposed to it in their letter or in their spirit, destroys the effect of numerous judicial dicta scattered through the reports, and settles the law for New York. The complaint sets out facts showing an equitable ownership of land in the plaintifl", and a legal title in the defendant by means of a deed from tlie admitted source of title, regular in form, but alleged to have been fraudu- lent in fact ; and it prayed possession of 78 CIVIL REMEDIES. from whatever causes, facts, acts, or omissions they took their rise, whether they were denominated legal or equitable, they the land, cancellation of said deed, and a conveyance from the defendant to the plaintiff. A demurrer to the complaint, on the ground that two causes of action liad been improperly united, having been sustained, tlie plaintiff appealed. Mr. Justice Hunt delivered the opinion of the court, reversing the judgment below, from which I take the following extract (p. 109) : "Assuming that the complaint does contain two causes of action as is in- sisted, the judgment was still erroneous. The argument {jrincipally relied upon to sustain the demurrer is this, that the two causes of action are of different charac- ters, — one an action of ejectment, being an action at law, the other an action to set aside a deed as fraudulent, and of an equitable nature ; that the latter may be tried by the court, while, in the former, the party is entitled to have his case passed upon by a jury. The codifiers labored assiduously to anticipate and to overrule this objection." He cites the preface of the code, and §§ 69, 167, and proceeds : " In these provisions, and in others, the distinction between legal and equitable causes of action is recognized. There is no attempt to abolish this dis- tinction, which would be quite unavailing. The attempt is to abolish the distinction between tlie forms of action and the modes of proceeding in the several cases. Tlie difficulty under consideration has also been expressly overruled by this court in the cases that I shall presently cite." And he cites several decisions which I shall refer to hereafter. In Meyers v. Field, ol Mo. 43-4, 441, Mr. Justice Holmes said : " The distinction between law and equity has not been abolished by the new code of practice. Equitable rights are still to be determined according to the doctrines of equity jurisprudence, and in the peculiar modes of proceeding which are sometimes required in such cases; and legal rights are to be ascertained and adjudged upon the princii)les of law ; and the rules of proceeding at law are in many respects very different from those which are applicable to equity cases." It should be remarked that much whi.;h Mr. Justice Holmes says must be taken with great caution. His position in regard to the reformed procedure was quite similar to that occupied by Mr. Justice S. L. Sel- den. He refused to see in the new system any substantial change ; and, although he seems to have led the court of Missouri to approve and adopt his peculiar views, that tribunal has since, as will be seen in sub- sequent sections, utterly- rei)udiated them. In Kichardson i: Means, 22 Mo. 4'J8, the rule was thus stated by Leonard J. : " The code has not changed the rights of parties, but only provided new remedies for their enforcement. It has not abolished the distinction between legal and equitable rights, but the distinction between legal and equitable remedies, so far at least as to provide that one form of suit shall be used for the enforcement of both classes of rights." It is plain that the judge uses the word " remedies" here as synon\'mou8 with the instruments, the actions them- selves, and not the reliefs procured there- by. In Matlock v. Todd, 25 Ind. 128, the defendant had invoked the statute of six years' limitation, which would bar an ac- tion at law ; but the court held that the equitable rule applied, saying, " Though the code has abolished the distinction be- tween actions at law and suits in equity and the forms of pleading, it has not changed the rules of law as to the rights of parties." In Woodford v. Leavenworth, 14 Ind. 311, 814, Worden J., said : " It is undoubtedly true that if, by the rules either of law or of equity, the plaintiff is entitled to recover on the facts stated, he may do so in this case. But the abolition of the distinction between actions at law and suits in equity does not entitle a party to recover in a case where before such abolition he could not have recovered either in law or in equity." The courts of California have, from the very adoption of the new system by the legislature of that State, accepted and administered its provisions and principles according to their spirit and true intent ; and I know of no decided cases from which the profession can obtain more aid in construing the reformatory legislation GENERAL NATURE OF THE CIVIL ACTION. 79 remain exactly the same as before. The codes do not assume to abolish the distinctions between "law" and "equity," regarded as two complementary departments of the municipal law ; not a clause is to be found which suggests such a revolution in the essential nature of the jurisprudence which we have inherited from England. The principles by which the courts determine the primary rights and duties of litigant parties remain unal- tered ; upon the acts or omissions which were the occasion of a right called equitable the same right is still based, and is still properly termed equitable ; from the acts or omissions which were the occasions of a right called legal the same right still arises, and is still with propriety termed legal. I remark, in passing, that much of the confusion and uncertainty which now exist would at once disappear, if the bar and the bench should adopt a nomenclature in conformity with the settled princij^le of interpretation, and should speak of legal and equitable rights, legal and equitable remedies, but not of legal and equitable actions. To term an action " legal " or " equitable " is a mis- nomer, and one which involves a wrong conception and a false doctrine, since the statute has removed all distinction between legal and equitable actions, and has substituted in place of both a single "civil action;" and the courts have decided that the legislature intended exactly what it has said. But as the legisla- as a whole, than many which are to be entitle the plaintiff to the equitable inter- found in the series of California Reports, position of the court, he must show a In one of tiie earliest of these, De Witt v. proper case for the interference of a court Hayes, 2 Cal. 463, which was an action to of chancery, and one in which he has no restrain the collection of a local tax or adequate or complete relief at law." In assessment, Murray C. J. stated the doc- Bonesteel v. Bonesteel, 28 Wis. 245, 250, trine in so clear and correct a manner Lyon J. said : " There are certain essen- that I shall quote from his judgment at tial and inherent distinctions between ac- some length (p. 468) : "The legislature, tions at law and in equity, to abolish which in providing that there shall be but one is beyond the power of legislative enact- form of civil action, cannot be supposed to ment. The legislature may abolish the have intended at one stroke to abolish all old forms of action, and has done so ; but distinction between law and equity as to the essential principles of equitable ac- actions. Such a construction would lead tions and equitable relief, as distinguished to infinite perplexities and endless diffi- from legal actions and remedies, are as culties. ... So cases legal and equitable vital now, and as clearly marked and de- have not been consolidated ; and though fined, as before the enactment of the code, there is no difference in the form of a bill They are indestructible elements in our in equity and a common-law declaration system of jurispruilence, and the courts under our system, where all relief is are constantly required to recognize and sought in the same way from the same apply them." SeeMowry y. Hill, 11 Wis. tribunal, the distinction between law and 146, 149. equity is as naked and broad as ever. To 80 CmL REMEDIES. tiire did not say, nor mean to sa}^ that the distinctions between legal and equitable rights or remedies are abolished, those terms may be used with propriety and correctness. The reformed American system, in short, has given no new causes of action. Primary rights and duties are unchanged ; the delicts or wrongs which are the violations of these rights and duties are still com- mitted in the same manner as before ; and as these primary rights and duties, and the wrongs which violate them, constitute the causes of action over which the courts exercise their remedial jurisdiction, it is plain that no statute relating solely to pro- cedure can increase, diminish, or modify the causes of action which exist independently of procedure. In some instances par- ticular parties are permitted to maintain an action who could not have maintained it under the old practice ; but in no instance can this now be done where upon the same facts and circum- stances a similar action could not have been maintained by some person. A familiar illustration of this statement is found in the change made in the common-law rule prolnbiting an action by the assignee of a non-negotiable thing in action, aud requiring the suit to be prosecuted in the name of the assignor, although for the benefit, and, as it was finally settled, under the com- plete control, of the assignee. The codes have abrogated this technical dogma, and thus permit an action to be brought by a party who formerly had no such power ; but this does not create nor constitute any new cause of action. The assignee now sues where the assignor sued ; the same facts must be proved, the same riglits asserted, and the same relief given ; the only change is in permitting the assignee to accomplish directly, and in his own name, what he before accomplished indirectly and by the use of another's name. § 69. The doctrine thus uniformly established in reference to the effect of the reform legislation upon primary rights and duties, and causes of action, is also as clearly settled in reference to its effect upon remedies and remedial rights, when the term is used — as it properl}' should be — to denote the reliefs which are con- ferred upon parties, and not the means of procuring these reliefs. The word " remedies " is sometimes used in two different tech- nical senses, and from this dual meaning there arises — as in all such cases — doubt and confusion. The secondary and in strict- ness improper signification renders the word equivalent to the GENERAL NATURE OF THE CIVIL ACTION. 81 mere judicial instruments and their incidents, the actions at law, suits in equit}', special proceedings, and the like, — the various steps in a forensic controversy which fall within the proper domain of practice. The primary and strictly accurate significa- tion makes it synonymous with the judgments which are pro- nounced by the court, and which established the remedial rio-hts and prescribe the manner in which and the means by which they are to be satisfied. Or " remedies " may denote those judgments executed and performed by which the party has received the very benefit to Avhich he was entitled, — tlie sum of money, the possession of the land or of the chattels, the execution and de- livery of the deed, the cancellation of the agreement, the removal of the obstruction, or whatever else was ordered to be done by the opposite party. In either of these two latter senses, the remedies which were in use under the former system, and which were awarded by the courts upon proper occasions, are abso- lutely unaffected in any of their essential features by the reform- atory legislation, 1 The general and sweeping language so often 1 See cases last cited under § 68 ; also, Carrico v. Tomlinson, 17 Mo. 499; Butler V. Lee, 33 How. Pr. K. 251 (Ct. of App.). Tlie report of tlie latter requires a correc- tion. The first paragraph of the head- note is not sustained by any dirision of the court in the case. A decision had been made b_y the court below in Julj', entered and certified by the clerk in August, and incorporated into the judg- ment roll in Xovember. It became im- portant to determine at which of these times the decision below became the judg- ment of the court. Mr. Justice Morgan regarded the solution of this diflSculty as depending upon the question whether the action was legal or equitable in its nature, and with that view proceeded to examine the former practice at law and in chancery as to the entry of judgments. In the course of his opinion lie made the following re- mark, wiiich the reporter has raised to the dignity of the head-note, as though it was one of the necessary points decided by the court: "I am aware that this confusion in the use of language is in part at least to be ascribed to the code of procedure, which attempts to abolish tlie distinction between proceedings at law and in equity, whereas it is evident from the very nature of the case that judgments at law and in equity cannot be assimilated." This is doubtless true when the essential nature of the judgment — that is, what it directs to be done or not to be done — is referred to ; but if the reference is merely to the incidents, the mode of entry, the official acts to be done by the clerk, and the like, it is not true ; there is absolutely nothing in the way of making the rules as to sucli matters tiie same for all kinds and sorts of judgments. But the code makes no attempt to produce any "assimilation" in the essential nature of different classes of judgments, does not even suggest such a result. Mr. Justice Morgan is also care- less in his citation of the language used by the legislature. The code does not '' attempt to abolish the distinction be- tween proceedings at law and in equity." It abolishes the distinction between ac- tions at law and suits in equity. The word "proceedings" is much broader than either action or suit ; and, as has been shown, the removal of all distinction be- tween these latter does not in terms nor in spirit purport to remove the distinc- tions which may subsist between tlie judgments that are the results of the action or suit. 82 CIVIL REMEDIES. quoted abolishes the distinction between actions at law and suits in equity ; and other provisions and clauses recognize all the forms of judgment known to the comraon-law courts, namely, for pa3-ment of money, for tlie possession of land and of chattels, and also the specific kinds of relief which courts of equity em- bodied in their decrees. Strictly speaking, the remedy given is no part of the action, but is the result thereof ; it is the object for which the action is prosecuted, the end at which all the liti- gation is directed. A modification of the action, a change in its forms, incidents, names, modes of procedure, including the pro- cess, the pleadings, the parties, the manner of trial, and all other steps preparatory to the judgment, does not involve any alteration in this result ; the general language of the codes does not, there- fore, include and apply to the substance of the judgments, that is, of the remedies. Without, however, relying exclusively upon an interpretation which may seem to be too refined and verbal, the practical construction given by the courts, and as illustrated by the citations contained in the preceding foot-note, fully sus- tains the conclusions which are reached by an analysis of the language. Abolition of the distinction between legal and equi- table actions, and of the forms of legal actions, does not abolish the distinctions between remedies. If from the nature of the primary right, and of the wrong by which it is invaded, the injured party would under the old system have been entitled to an equitable remedy, he is still entitled to the same relief, and it may well be termed equitable ; if from the like causes he would have been entitled to a legal remedy, he is still entitled to the same relief, and it may properly be described as legal. § 70. It having been thus determined that no effect has been wrought upon the primary rights and duties which constitute the great body of the municipal law, nor upon the final remedies granted to the litigant parties, the courts have, with general though not Avith absolute unanimity, agreed upon the inter- pretation to be given to the provision under consideration. The broad principle of construction may be regarded as established in most if not all the States, that the clauses of the statutes abolishing the distinction between actions at law and suits in equity were intended to mean exactly what they say, without reservation or equivocation. All the differences which belonged to the external machinery by which a judicial controversy "was GENERAL NATURE OF THE CIVIL ACTION. 83 conducted up to the judgment itself, all the rules respecting forms of action, all the peculiar characteristics of a legal or of an equitable action, or of the various kinds of legal actions, except the constitutional requirement as to the jury trial, have been swept away. One action, governed in all instances by the same principles as to form and methods, sufGces for the maintain- ing of all classes of primary rights, and for the pursuit of all kinds of civil remedies.^ I say, governed by the same principles 1 Dobson V. Pearce, 12 N. Y. 156, 165 ; Crary v. Goodman, 12 N. Y. 2GG, 268; N. Y. Cent. Ins. Co. v. Nat. Protection Ins. Co., 14 N. Y. 85, 90 ; Cole v. Reynolds, 18 N. Y. 74, 76 ; Bidwell v. Astor Ins. Co., 16 N. Y. 263, 267 ; Phillips v. Gorham, 17 N. Y. 270, 273, 275 ; Laub v. Buckmiller, 17 N. Y. 620, 626 ; N. Y. Ice Co. v. North- west Ins. Co., N. Y. 357, 359 ; Brown V. Brown, 4 Robt. 688, 701; Grinnell v. Buchanan, 1 Daly, 538 ; Crosier v. Mc- Laughlin, 1 Nevada, 348 ; Rogers v. Pen- niston, 16 Mo. 432 ; Troost v. Davis, 31 Ind. 34, 39; Scott v. Crawford, 12 Ind. 411; Kramer v. Rebman, 9 Iowa, 114; De Witt V. Hayes, 2 Cal. 463; Wiggins v. McDonald, 18 Cal. 126 ; Bowen i-. Aubrey, 22 Cal. 566, 569; Ireland r. Nichols, 1 Sweeney, 208; Garret v. Gault, 13 B. Mon. 378, 380; Wright v. Wriglit, 54 N. Y. 437, 442 ; White v. Lyons, 42 Cal. 279 ; Giles v. Lyon, 4 N. Y. 600 ; Getty V. Hudson River R. R., 6 How. Pr. 269; Mowry i. Hill, 11 Wis. 146, 149. To obtain any clear and correct notions of the general principle stated in the text, the facts and circumstances to which it has been applied from time to time must be exhibited, and the language used by the judges in making such application must be quoted at some length. In Dob- son V. Pearce, 12 N. Y. 156, 165, which is a leading and important case, Allen J. said: "Under our present judiciary sys- tem the functions of the courts of com- mon law and of chancery are united in tlie same court, and the distinctions be- tween actions at law and suits in equity, and the forms of all such actions and suits are abolished ; and the defendant may now set forth bj- answer as many defences as he may have, wliether they be such as have heretofore been denomi- nated legal or equitable or both. . . . The intent of the legislature is very clear that all controversies respecting the subject- matter of the litigation should be deter- mined in one action ; and the provisions are adapted to give effect to that intent." Johnson J. said in the same case (p. 168) : " The code having abolished the distinc- tive actions at law and suits in equity, and the forms of all such actions as there- tofore existing, an equitable defence to a civil action is now as available as a legal defence. The question is. Ought the plaintiff to recover? and anything which shows that he ought not is available to the defendant, whether it was formerly of equitable or legal cognizance." In Crary V. Goodman, 12 N. Y. 266, 268, the doc- trine was stated by Johnson J. as fol- lows : " Since the enactment of the code the question is not whether the plaintiff has a legal right or an eqiiitable right, or the defendant a legal or an equitable de- fence against the plaintiff's claim, but whether, according to the whole law of the land applicable to the case, the plain- tiff makes out the right which he seeks to establish, or the defendant shows that the plaintiff ought not to have the relief sought for." The N. Y. Ins. Co, v. The Nat. Protect. Ins. Co., 14 N. Y. 85, was brought to reform a policy of insurance and to recover the amount due after re- formed. Denio J. said (p. 90) : " As the courts of the State are now constituted, they apply legal and equitable rules and maxims indiscriminately in every case. In a suit vvhich could not formerly have been defended at law, but as to which the defendant could have been relieved in equity, he can now have the like relief in the first action. And such relief con- sists in denying the plaintiff the right to recover. It was always theoretically un- reasonable that in one branch of the judi- 84 CIVIL REMEDIES. as to form and method ; but this does not assume that exactly the same form or method is to be or can be used in all actions ciarj the court should hold that the party prosecuted had no defence, while in an- other branch the judges should decide that the plaintiff had no right to recover. The authors of tlie code, aiming at greater theoretical perfection, have abolished this anomaly ; and now, when an action is prosecuted, we inquire whether, taking into consideration all the principles of law and equity bearing on the case, the plaintifE ought to recover." In Cole v. Reynolds, 18 N. Y. 7i, 76, Mr. Justice Harris used this language : " By the code the distinction between actions at law and suits in eqiaity is abolished. The course of proceeding in both classes of causes is now the same. Whether the action de- pend upon legal principles or equitable, it is still a civil action, to be commenced and prosecuted without reference to this dis- tinction." In Brown i\ Brown, 4 liobt. 688, 701, Mr. C. J. Robertson states the doctrine in a very accurate and compre- hensive manner as follows : " But all the boundaries of jurisdiction and distinctions between causes of action as legal or equi- table being removed, there seems no rea- son why all the relief to which the plaintiff la entitled should not be given in one ac- tion. . . . Now, however, the only ordi- nary proceeding in a court to enforce or protect a riglit or prevent a wrong is in the most general terms an action. It can have but one form. Every distinction be- tween actions at law and suits in equity, and their forms, is abolished. Every court, therefore, whether exercising legal or equitable jurisdiction in such proceed- ings, now possesses the former powers of both courts of law and equity to investi- gate disputed questions by every mode peculiar to either, and to make its judg- ment as to the rights of the parties effect- ual." Language used by Ch. J. Daly in Grinnell v. Buchanan, 1 Daly, 538, is equally clear and accurate: "The dis- tinction between legal and equitable tri- bunals, between actions at law and suits in equity, has been abolished ; and we have but one form of procedure, whether the relief sought be legal or equitable or both. . . . Where a choice is to be made between the form of proceedings at law or in equity, that one is to be preferred which is the most direct, consistent, and comprehensive ; and in this respect the rule which prevails in courts of equity is a less technical and a better one than that which exists in courts of law." The rule spoken of was that permitting assignees of things in action to sue in tlieir own names. The same general doctrine has been fully adopted by the courts of other States. In Troost v. Davis, 31 Ind. 34, 39, Ray J. said: "In our State, where the distinctions between actions at law and suits in equity, and the forms of all such ac- tions and suits, are abolished; and, where an equitable defence may be set up to a legal claim, it seems inconsistent to assert that, because a party is asserting a right under a legal form, equity will not give the same protection to equitable rights that they would receive if the proceeding was under equitable forms. All these dis- tinctions in form, as well as actions and suits, are abolished ; and equity can be in- voked under all circumstances where an equitable right calls for protection or en- forcement." And in California, in Wig- gins V. McDonald, 18 Cal. 126, Cope J., says (p. 127): "We have but one form of action for the enforcement of private rights ; and with certain exceptions the statute requires that the action shall be prosecuted in the name of the real jiarty in interest. In the form of remedy no dis- tinction exists between legal and equita- ble rights. In this respect the two classes of rights are placed precisely upon the same footing, and must undergo the same remedial process for their enforcement." The same court, in the much later case of White V. Lyons, 42 Cal. 279, 282, an- noimces the doctrine by Mr. Justice Crockett in the following manner: "Un- der the code there is but one form of ac- tion in this State ; and if the com])laint states facts which entitle the plaintiff to relief, either legal or equitable, it is not demurrable on the ground that it does not state facts sufficient to constitute a cause of action. If tlie facts stated are such as address themselves to the equity side of GENERAL NATURE OF THE CIVIL ACTION. SI for whatever purposes brought. The common principle as to form and method is not that all actions shall assume absolutely the same form, nor is it that they shall be governed by any tech- nical rules which separate them into arbitrary classes ; it is that they shall all conform to and follow the facts and circumstances which constitute the cause of action, and entitle the parties to relief. It is established, therefore, that a single judicial action, based upon and conforming to the facts and circumstances of the court, the appropriate relief will be granted by the court sitting as a court of equity. On the other hand, if tlie facts alleged are purely cognizable in a court of law, tlie proper relief will be adminis- tered in that form of proceeding. But a complaint which states a sufficient cause of action, either at law or in equity, is not demurrable as not stating facts sufficient to constitute a cause of action. In this case the defendant does not question the sufficiency of the facts alleged to consti- tute a cause of action in a proceeding at law, but insists that this complaint is a bill in equity, and that a court of equity has no jurisdiction of the case. In that event the court will treat it as an action at law, and administer the proper relief in that form of proceeding." The same conclusions as the foregoing were reached by the Court of Ajjpeals in the very recent case of Wright v. Wright, 54 N. Y. 437. The action was by a wife against a hus- band upon a promissory note given by him to her before the marriage, and in contemplation thereof. The complaint was in the usual form of an action on a note. Reynolds J., after sliowing that, under the statutes of New York, a wife may sue her husband, says (p. 442) : " Willie it is admitted that the rights of the plaintiff could be enforced by a suit in equity, yet it is insisted that this, being an action at law, cannot be maintained by a married woman against her husband. It might be a.'^ked hy what uuthoriUj the de- fendant names this an action at law. What additional allegation in the complaint would have enabled the defendant to designate it as a suit in equity ? Nothing more could be truly said, except that the consideration of the note was a promise to marry, which had been performed ; and all this was proved without objection. While regard is still to be had in the ap- plication of legal and equitable principles, there is not of necessity any difference in the mere form of procedure, so far as the case to be stated in the complaint is con- cerned. All that is needful is to state the fact sufficient to show that the plaintiff is entitled to the relief demanded ; and it is the duty of the court to afford the relief without stopping to speculate upon the name to be given to the action. These principles have been frequently acted upon by the court. Indeed, if some such result has not been attained by the code of procedure, we are still in the labyrinth of legal technicalities in practice and pleading, contrived long ago and tend- ing to enslave the administration of jus- tice, and from which it has been hoped we had, by legislative aid, secured com- parative freedom. When, as in our sys- tem, a single court has jurisdiction both in law and in equity, and administers justice in a common form of procedure, the two jurisdictions of necessity be- came to some extent blended. This must be especially the result when the forms of pleading and proceeding are alike. . . . Certain forms are needful to be preserved ; but they must not obstruct the path to exact justice; and, if they do, they will be swept away." I know of no opinion which more accurately and completely expresses the true intent and sjiirit of the reformed procedure than this. It con- tains the principle from which the entire system must be developed, if that system is to be a harmonious and symmetrical one. Chinn i-. Prentiss, 32 Ohio St. 236 ; Gress v. Evans, 1 Dacota, 387 ; Williams V. Slote, 70 N. Y. 601 ; Stevens v. The Mayor, &c., 84 N. Y. 296, 304, 305 ; Ander- son V. Hunn, 5 Hun, 79. 86 CIVIL REMEDIES. each particular case, whatever be the nature of the primary right which they create, must be used for the pursuit of all rem- edies, legal or equitable.^ The authorities referred to in the notes show that this doctrine is now adopted in all the States where the reformed procedure prevails, and that there is little variation in the language by which it is expressed. When, how- ever, we shall pass from this statement of the doctrine in the abstract to the application of it in particular instances, — as, for example, in questions as to parties, pleading, judgments, — the perfect uniformity of judicial opinion and action disappears ; but still in the great majority of the States the courts have fairly followed the true intent of the legislation and the correct principle of interpretation. § 71. Thus it may be regarded as a settled rule, resulting from the statutory provision in question, that if a 2:)laintiif has set forth facts constituting a cause of action, and entitling him to some relief, either legal or equitable, his action shall not be dis- missed because he has misconceived the nature of his remedial right, and has asked for a legal remedy when it should have been equitable, or for an equitable remedy when it should have been legal.^ Nothing was a more familiar rule in the old system ^ See cases cited in last precediug constitute a cause of action. Comstock J., note. after stating the old rule by which the 2 Crary y. Goodman, 12 N. Y. 266, 268 ; action would have been properly dis- N. y. Cent. Ins. Co. v. National Protec. missed, proceeds (p. G4) : " In deterniin- Ins. Co., 14 N. Y. 85, 90 ; Emery v. Pease, ing whether an action will lie, the courts 20 N. Y. 62, 64 ; Bidwell i'. Astor Ins. Co., are to have no regard to the old distinc- 16 N. Y. 263, 267 ; Phillips v. Gorliam, 17 tions between legal and equitable rerae- N. Y. 270, 273, 275 ; Laub v. Buckmiller, dies. Those distinctions are expressly 17 N. Y. 620, 626 ; N. Y. Ice Co. v. N. W. abolished. A suit does not, as formerly Ins. Co., 28 N. Y. 357, 359; Farlow v. Scott, fail because the plaintiff has made a mis- 24 N. Y. 40, 45 ; Marquat v. Marquat, 12 take as to the form of the remedy. If the N. Y. 336 ; Troost v. Davis, 31 Ind. 34, 39 ; case which he states entitles him to any Grain v. Aldrich, 38 Cal. 514, 520; Leonard remedy, either legal or equitable, his com- V. Rogan, 20 Wis. 540, 542. And see the plaint is not to be dismissed because he various quotations in note to §70, ante, has prayed for a judgment to wiiichheis In addition to several of the quotations not entitled." Bidwell i-. Astor Ins. Co. last referred to, the following extracts 16 N. Y. 263, was an action on a policy of will illustrate tiie statement of the text: insurance. The complaint asked tliat the In Emery v. Pease, 20 N. Y. 62, the com- policy be reformed, and that the defendant plaint set out facts entitling tiie plaintiff l>ay •'$7,000 as the sum insured by the re- to an accounting, but did not ask one ; it formed policy. Without a reformation did not aver any settlement, nor ascer- the plaintiff was not entitled to a judg- tained balance due, and demanded judg- ment for anj' amount. On the trial a ment for a sum certain. On the trial the mistake in the instrument was proved, complaint was dismissed, on the ground and the court directed a judgment for tiiat it did not set forth facts sufficient to •$7,000. The defendant insisted that a GENERAL NATURE OF THE CIVIL ACTION. 87 than the one which turned a plahitiif out of court if he had mis- conceived the nature or form of his action. If he brought an action at hiw, and on the trial proved a case for equitable relief, or if he filed a bill in equit}-, and at the hearing showed himself entitled to a judgment at law, he must absolutely fail in that proceeding. It is very plain that this arbitrary and most unjust rule rested wholly upon the ancient notions as to distinctions between legal and equitable actions, and did not rest upon any notions as to the primary rights which the litigant parties sought to maintain. Wherever, therefore, the letter and spirit of the reformed system are followed by the courts, this liarsh rule is swept awa}', A suit does not now fail because the plaintiff has erred as to the form or kind or extent of the remedy he de- mands. A party cannot be sent out of court merely because the facts alleged do not entitle him to relief at law, or merely because they do not entitle him to relief in equity. If the case which he states shows him entitled to any relief, either legal or equi- table, his complaint is not be dismissed because he has prayed for a judgment that is not embraced by the facts. The only judgment for damages, instead of one for a reformation, was improper. The court say : " There was nothing in the objection that the court should liave stopped with reforming the policy, and turned the plain- tiff over to a new action to recover dam- ages." The N. Y. Ice Co. v. N. W. Ins. Co., 23 N. Y. 357, is an important and sug- gestive case. The action was on an insur- ance policy. The plaintiff claimed a money judgment for a loss, and also a reforma- tion of the policy which, if made, would entitle him to a further recovery of money. He failed to make out a case for a reforma- tion ; whereupon the trial court dismissed the action, holding that the other issue could not be tried. Comstock J. said (p. 3.59): "I am of opinion that it was erroneous to turn the plaintiff out of court on the mere ground that he had not entitled himself to the equitable relief granted, if tliere was enough left of his case to entitle liim to recover tiie sum in which he was insured. No suggestion was made that the complaint did not show a good cause of action for this money, even after strik- ing out all the allegations and the prayer on the subject of the equitable relief." The same doctrine is again applied in Barlow v. Scott, 24 N. Y. 40, 45, Lott J. saying : " Under our present arrange- ment, the same court has both legal and equitable jurisdiction ; and if the facts stated by a party in his complaint are sufficient to entitle him to any of the relief asked, and an answer is put in putting these facts in issue, it would be erroneous to dismiss the complaint on the trial merely because improper relief is primarily demanded." The true jirinciple was tersely and most accurately stated by- Sanderson J. in Grain v. Aldrich, 38 Cal. 514, 520 : " Legal and equitable relief are administered in the same forum and accord- ing to the same general plan. A party cannot be sent out of court merely be- cause his facts do not entitle him to relief at law, or merely because he is not enti- tled to relief in equity, as the case may be. He can be sent out of court only when upon his facts he is entitled to no relief either at law or in equity." Ilamill V. Thompson, 3 Col. 518, .')23 ; Shilling v. Rominger. 4 Col. 100; Whiting r. Root, 52 Iowa, 292 ; Herring v. Ilely, 43 Iowa, 157. 88 CIVIL KEMEDIES, inconvenience which a plaintifif can suffer from such an error is, that the trial may, perhaps, be suspended, and the cause sent to another branch of the court, or, as in Kentucky, Iowa, and Oregon, to another docket.^ If a plaintiff had brought his action on the theory that it was based upon an equitable right, and sought an equitable relief, and it turns out to be in effect legal, so that the defendant is entitled to a jury trial, the trial must be had before a jury, and not before a single judge sitting as a chancellor ; and, when the trial had taken place before the wrong tribunal, the judgment would be reversed, and the cause sent for a new trial in the proper place.^ § 72, The rule discussed in the foregoing paragraph as to the relation between the facts alleged and the relief asked and granted was not establislied without a struggle, and has not at all times, and in all the States, prevailed without exception, and perhaps is not even now universally accepted. Many early cases in New York were decided under the influence of the former practice and the ancient notions ; and, although the Court of Appeals has completely repudiated the doctrine of those adjudications, yet the principles announced by it have not always been fol- lowed by the inferior tribunals of the same State.^ In one or two of the States, and especially in Missouri, the ancient rules and doctrines in reference to this subject-matter have been re- peatedly asserted, and, until a very recent period, prevailed in the courts, notwithstanding the adoption of the reformed proce- dure. In Missouri, the judiciary, standing alone in this respect, preserved for a long time the real distinctions between legal and equitable actions as strongly marked as under the former system, and, in fact, insisted upon a rule more strict than that enforced by the English Court of Chancery. The following examples will illustrate this peculiar interpretation of their code by the 1 McCrory v. Parks, 18 Ohio St. 1 ; trial before a jury and the residue before Ellithorpe v. Buck, 17 Ohio St. 72. See another tribunal. If, liowevcr, the plain- Dickson v. Cole, 34 Wis. 621, 625. tiff insists upon a trial before the court, and 2 Davis V. Morris, 30 N. Y. 569, 571, his claim is acceded to, upon the diseov- 572, per Grover J. In this case the New ery that the action presents issues which York Court of Appeals laid down, in a must be decided by a jury, the comi)laint formal manner, tlie rule as to the trial of should not be dismissed, but the cause legal and equitable issues. If the plead- should be sent to the circuit for trial as a ings present botii legal and equitable jury cause. Tarker v. Laney, 58 N. Y, issues, the parties are entitled to a jury, 469 ; Richmond v. Dubuque, &c. R. R., and all the issues must be tried together; 33 Iowa, 422, 489-491. that is, there should not be a partial ^ See Peck y. Newton, 40 Barb. 173, 174. GENERAL NATURE OF THE CIVIL ACTION. 89 Missouri courts. In those cases where the plaintiff holds the equitable title to land, while the legal title is in the defendant by means of a fraudulent conveyance, it has been frequently held that the former must first obtain a decree in equity, cancelling the outstanding deed, and must then resort to a separate action of ejectment to recover possession of the land. A vendee of land has also been required to proceed in two distinct actions, — the first equitable, to compel a specific performance, and the second legal, to obtain possession. The plaintiff was turned over to a second legal action in order to complete his remedy, because, as the court repeatedly insisted, possession of land can never be awarded by a decree in equity.^ The Missouri court has recently receded, in part at least, from this extreme position, and is plainly tending towards a complete harmony with the doctrines which are accepted in other States.^ A simple criterion has been suggested by which to determine the nature of the action. If the facts alleged in the complaint or petition would entitle the plaintiff to both legal and equitable relief, the prayer for judg- ment — that is, the nature of the remedy demanded — might be a certain test by which the character of the suit should be known.2 This suggestion has not, however, been followed in other cases. § 73. To recapitulate the results of the foregoing discussion : The courts have, with few exceptions, accepted the language of the code in its simplicity, and have given to it a reasonable mean- ing ; they have acknowledged that the legislature intended to abolish, and has abolished, all the features which distinguish legal and equitable actions from each other, and has established a single action for the pursuit of all remedies ; they have settled the doctrine that by the use of this single action neither the primary rights nor the remedial rights of litigant parties are affected or in any manner modified, .since they do not depend upon matters connected with the form or external features of 1 Meyers v. Field, 37 Mo. 434, 441 ; 45 Mo. 580 ; Rutherford v. Williams, 42 Maguire v. Vice, 20 Mo. 429 ; Curd v. Mo. 18, 23 ; Fithian v. Monks, 43 Mo. 502, Lackland, 43 Mo. 139; Wynn v. Corry, 517; Magwire v. Tyler, 47 Mo. 115, 127. 43 Mo. 301 ; Gray v. Payne. 43 Mo. 203 ; 2 Henderson v. Dickey, 50 Mo. 161, Bobb V. Woodward, 42 Mo. 482, 487 ; Pey- 165, per Wagner J. ton V. Rose, 41 Mo. 257, 262; Gott v. 3 Gillett v. Treganza, 13 Wis. 472, Powell, 41 Mo. 416; Moreau v. Detche- 475, per Dixon C. J. Followed in Low- mendy, 41 Mo. 431 ; Walker's Adm'r v. ber v. Connil, 36 Wis. 176 ; Ilarrall v. Walker, 25 Mo. 367 ; Reed v. Robertson, Gray, 10 Neb. 186 90 CIVIL KEMEDIES. the action, and that among the matters which are thus con- nected with the form are the setting forth or statement of the cause of action or defence in the pleadings, and the demand of relief or prayer for judgment. A mistake or misconception in respect to the action being called legal or equitable does not defeat the plaintiff, but at most may require a trial before a properly constituted court. One fundamental principle controls the administration of justice by means of this common civil action, and this principle may be formulated in the following manner: The object of every action is to obtain a judgment of the court sustaining or protecting some primary right or enforc- ing some primary dut}^ ; every such primary right and duty re- sults from the operation of the law upon certain facts, in the experience of the person holding the right or subjected to the duty ; every wrong or violation of this primary right or duty consists in certain facts, either acts or omissions of the person committing the wrong. A statement, therefore, of the facts from which the primary right or duty arises, and also of the facts which constitute the wrong or violation of such primary right or duty, shows, and must of necessity show, at once a com- plete cause of action ; that is, the court before which this state- ment is made can perceive from it the entire cause of action, the remedial right flowing therefrom, and the remedy or remedies which should be awarded to the injured party. All actions can be and should be constructed in the manner thus described ; and, if so, they would conform to the single and common principle announced by the reformed method of procedure. Whether the rights and duties are legal or equitable, whether the remedies appropriate are legal or equitable, whether the facts are simple and few or complex and numerous, does not in the slightest degree affect the application and universality of this principle ; it is the central conception of the new system, the corner-stone upon which the whole structure is erected. § 74. It is not my purpose in the present section to follow this general principle in its application to the various features and phases of an action ; to do so would be to anticipate the matter contained in several subsequent chapters. A brief allusion must be made, however, to one of these topics, or else the theory of consti'uction finally accepted by the courts will be but partially explained, — I refer to the subject of pleading. No single GENERAL NATURE OF THE CIVIL ACTION. 91 element of difference more sharply marked the contrast be- tween the action at law and the suit in equity under the former system than the manner in wliich the litigant parties in each stated their causes of action and their defences. Although it was said that in each kind of judicial proceeding the facts con- stituting the cause of action or defence should alone be alleged, this rule was not followed in actual practice. In a common- law action the " issuable facts " only were spread upon the record. The plaintiff never narrated the exact transaction be- tween himself and the defendant from which the rights and duties of the parties arose ; he stated what he conceived to he the legal effect of these facts. Thus, if the transaction was a simple arrangement respecting the sale and purchase of goods, instead of disclosing exactly what the parties had actually done, the pleader used certain formulas expressing the supposed legal effect of what had been done, as that he had " sold and de- livered " or had " bargained and sold " the chattels ; and, if a mistake was made in properly conceiving of this legal effect, — that is, if the real facts of the transaction, as disclosed by the evidence, did not correspond with this conception of their legal effect taken by the jDleader, — the plaintiff might be, and, unless permitted to amend, would be, turned out of court. On the equity side the facts as they occurred, rather than the legal aspect of or conclusions from these facts, were set forth, according to the original theory of equitable pleading. In practice this narrative was always accompanied by a detail of mere evidentiary matter, which was inserted, not because it was necessary to the statement of the cause of action, but because it was a means of obtaining admissions from the defendant, and of thus making him a witness in the cause against himself. A bill in equity had, therefore, two entirely distinct uses and offices ; it was a narrative of the facts from which the plaintiffs' rights to relief arose, and it was an instrument for obtaining evidence from the opposite party. This latter purpose, which was known as " dis- covery," the codes have expressly abolished, and have substi- tuted in its stead the more direct method of an oral examination of one party by the other, if desired, either on the trial or pre- liminary thereto. § 75. Upon the adoption of the reformed system in New York there arose at once in that State, and subsequently in other 92 CIVIL REMEDIES. commonwealths, two schools of interpretation in reference to the modes of ^ileading prescribed by the new procedure. One school maintained that all the distinctive features and elements of the common law and of the equity modes of pleading remained in full force, and that the legislature had simplj^ abolished certain names and certain technical rules of mere form. Tliis particular theory was a necessary and evident corollary of the broader principle advocated by the same school, and already explained in the present section, that the division of actions into legal and equitable still existed, in all that pertained to their sub- stantial nature ; if actions were now, as before, legal or equitable, the most characteristic features of the two classes, that which marked their difference in the most emphatic manner, — the peculiar modes of pleading appropriate to each, — were of course preserved. In a common-law cause the pleader was to follow the common-law rules of pleading, and in an equity suit the equity rules. This doctrine was asserted and was sustained with great ability and earnestness by several judges in the infancy of the system. It would be useless to cite all the reported de- cisions in which it was advocated ; and I shall only refer to a few which have always been regarded as leading.^ The other school asserted that all the distinctions between the common- law and the equity modes of pleading had been embraced within the sweeping language of the statute, and had been discarded ; that one general principle of pleading was applicable to the civil action in all cases, whatever might be the nature of the primary right it sought to maintain, or of the remedy it sought to procure. This principle, which was stated in a preceding paragraph, is simple, universal, and natural. It is merely that the pleader must narrate in a plain and concise manner the actual facts from which the rights and duties of the parties arise, and not his conception of their legal effect, nor, on the other hand, the mere detail of evidence which substantiates the existence of those facts. This comprehensive principle applies 1 Rochester City Bank v. Suydam, 5 special term decisions detracts from their How. Pr. 216 ; Wooden v. Waffle, (J How. authority ; they are not, however, quoted Pr. 145. I cite these, because they were as precedents, but simply as illustrations pioneer cases, and in no others have the of the course of judicial action in the arguments in favor of the theory which matter of iuterpreting the code of pro- thcy maintain been presented with greater cedure. fulness and more ability. That they are GENERAL NATURE OF THE CIVIL ACTION. 93 to all kinds of actions, to one founded upon a legal right and seeking a legal remedy, and to one founded on an equitable right and seeking an equitable remedy ; and it avoids all ques- tions and difficulties as to the " issuableness " of the matters alleged. Undoubtedly, from the very nature of the primary rights invaded and of the remedies demanded, the narrative of facts will generally be much more minute, detailed, and circum- stantial in actions brought to maintain equitable rights and to recover equitable relief than in those based upon legal rights and pursuing legal relief, but this incident does not alter or affect the principle which governs all cases ; the pleader in both eases sets out the facts which entitle him to the remedy asked, and no more ; it simply happens that legal remedies usually depend upon a few positive facts, while equitable remedies often arise from a multitude of circumstances, events, and acts, neither of which, taken by itself, would have created any right or im- posed any duty. It would be useless to incumber the page by a reference to all the reported cases in which this doctrine has been approved ; and I shall merely cite one or two which are leading in point of time, and which may be regarded as exam- ples of the class.^ Without entering upon any discussion of these two theories, it is enough to say that the latter one has been accepted as expressing the true intent and spirit of the new procedure, and the former has left scarcely any traces in the practical administration of justice in the great majority of the States. The forms contained in the most popular and approved text-books upon practice and pleading furnish a sure test ; and, without exception, these are all based upon the method of inter- preting the codes last described. And yet with great inconsis- tency, as it seems to me, the courts have generally held that the ancient forms of common-law pleading in assumpsit may be used in actions upon contract, especially where the contract is implied; that they sufficiently meet the requirements of the 1 Milliken v. Gary, 5 How. Pr. 272 ; the sequel that the Supreme Court of Williams v. Hayes, 5How. Pr. 470; Peo- Missouri stands quite alone — or at least pie I'. Ryder, 12 N. Y. 433, 437. The did so until a very recent day — in its doctrine of tlie text was very clearly and theory of interpretation, and retains the accurately stated by Crocker J. in Bowen distinctions between legal and equitable V. Aubrey, 22 Cal. 566, 569. See contra, forms, in as marked a manner as though the remarks of Holmes J. in Meyers v. no change had been made by the etat- Field, 37 Mo. 434, 44L It will be seen in utes. 94 CIVIL REMEDIES. codes, althoiigli they do not set out the actual facts of the trans- action from which the legal right arises. Thus, it has been decided that the count in indebitatus assumpsit for goods sold and delivered is a sufficient complaint or petition in an action to recover the price. ^ The diiference between this ruling of the courts and the theory first above stated is, that according to the latter theory the common-law mode of stating a legal cause of action or defence must be followed in substance, while by the decisions referred to it may be followed in the particular classes of actions described. But even this ruling, although, as I think, a plain departure from the essential spirit of the new system, is of little practical importance ; the bar have, wdth almost absolute unanimity, adopted the method of stating the facts as they oc- curred, and do not attempt to aver in their stead the legal fictions of promises which are never made, or conclusions of law which are in no sense of the term actual facts. There are other important features of an action — the parties, the union of dif- ferent causes of action or defence, affirmative relief to the defend- ant, the form of the judgments, and the like — which have been greatly affected by the general provision of the statute abolishing the distinctions between legal and equitable methods, and the judicial interpretation given thereto ; but it is impossible to dis- cuss them in any general manner, and their particular treatment is reserved for subsequent chapters. SECTION THIRD. THE COMBINATION BY THE PLAINTIFF OF LEGAL AND EQUITABLE PRIMARY RIGHTS AND OF LEGAL AND EQUITABLE REMEDIES IN ONE ACTION. § 76. The general principles of unity developed in the preced- ing sections will now be applied to the several cases which are constantly arising in the practical administration of justice, for 1 Allen V. Patterson, 7 N. Y. 47G, 478. corle is directly violated, forms of corn- Some of the State legislatures have by a plaints or petitions being sanctioned statutory enactment set forth forms of which are identical with the ancient pleading under the code, and thus made common counts, and therefore allege tliem regular and vahd. It is strange fiction instead of facts. See, for example that in some of these the spirit of the statutes of Indiana. UNION OF LEGAL AND EQUITABLE REMEDIES. 95 the purpose of ascertaining how far the abolition of all distinc- tions between actions at law and suits in equity has affected the process of stating causes of action, and praying for and obtaining remedies by the plaintiff. It was in this very feature of the judicial process — the stating of causes of action, and the obtain- ing of relief thereon — that the distinction spoken of was exhib- ited in the most marked manner ; and it is in this feature, therefore, that the change must be the most sweeping and radical, if the distinction has in truth been abolished. Under the former system a legal primary right, when invaded, could only be redressed by an action at law, and a legal judgment alone was possible ; while an equitable primary right must be redressed or protected in an equity suit and by an equitable remedy. A union or combination of the two classes, either wholly or partially, in one action was unknown, unless permitted by some express statute, and was utterly opposed to the theory which separated the two departments of the municipal law. The new system not only permits but encourages — and in its spirit, I believe, requires — such a union and combination ; for one of its elementary notions is that all the possible disputes or controversies arising out of, or connected with, the same subject-matter or transaction should be settled in a single judicial action.^ § 77. The possible modes or forms of the union or combination by the plaintiff of legal and equitable primary rights and remedies in one suit are the following : (1) Both a legal and an equitable cause of action may be alleged, and both a legal and an equitable remedy obtained ; (2) both a legal and an equitable cause of action may be alleged, and the single remedy obtained may be legal or equitable ; (3) upon an equitable cause of action, that is, an equitable primary right alleged to have been invaded, a legal remed}- may be obtained ; (4) upon a legal cause of action, that is, a legal primary right alleged to have been invaded, an equitable remedy may be obtained ; and (5) in an action purely legal, that is, where the primary rights asserted to have been in- vaded, and the remedy demanded, are both legal, the plaintiff may invoke an equitable right or title in aid of his contention, and obtain his remed}'- by its means. These combinations, I believe, exhaust all possible cases of union on the part of the ^ The Code does not require le^al and be united in the same action. Bruce i'. equitable causes of action and reliefs to Kelly, 5 Hun, 229, 232. 96 CIVIL REMEDIES. plaintiff. I shall therefore proceed to show how far they are permitted and how far refused in those States which have adopted the reformed system of procedure. § 78. "When the plaintiff is clothed with primary rights, both legal and equitable, growing out of the same cause of action or the same transaction, and is entitled to an equitable remedy, and also to a further legal remedy, based upon the supposition that the equitable relief is granted, and he sets forth in his complaint or petition the facts which support each class of rights, and which show that he is entitled to each kind of remedy, and demands a judgment awarding both species of relief, the action will be sus- tained to its full extent in the form thus adopted. He ma}^ on the trial, prove all the facts averred, and the court will in its judgment formally grant both the equitable and the legal relief.^ It will be noticed that this proposition embraces only those cases in which the legal relief demanded rests upon and flows as a consequence from the prior equitable relief, but the principle of the rule is not confined to such cases ; it extends also to those in which the two remedies, although connected with the same trans- action or subject-matter, are not connected as cause and effect.^ This is the most complete union of legal and equitable primar}-- rights and remedies in one action which can be made ; but it is limited and restricted to those cases in which these rights and remedies arise from the same transaction or subject-matter. It is 1 Laub V. Buckmiller, 17 N. Y. 620, Young v. Young, 81 N. C. 91 ; Kahn v. 626 ; Lattin v. McCarty, 41 N. Y. 107, 109, Kahn, 15 Fla. 400; Ludersdorf v. Flint, 110; Davis v. Lamberton, 56 Barb. 480, 50 Wis. 401; Anderson i?. Hunn, 5 Hun, 79; 483 ; Brown v. Brown, 4 Robt. 688, 700, Stevens v. The Mayor, &c., 84 N. Y. 296, 701; Walker !>. Sedgwick, 8 Cal. 398 ; 305 ; Wheelock r. Lee, 74 N. Y. 495, 500 ; Welles 1-. Yates, 44 N. Y. 525 ; Henderson Margraf v. Muir, 57 N. Y. 159; Hale v. P.Dickey, 50 Mo. 161, 165; Guernsey r. Omaha Nat. Bank, 49 N. Y. 626; Mad- Am. Ins. Co., 17 I\Iinn. 104, 108; Mont- ison Av. Bap. Ch. v. Oliver St. Bap. Ch., gomery v. McEwen, 7 Minn. 351. See 73 N. Y. 83 ; Cone v. Niagara Fire Ins. however, Hudson v. Caryl, 44 N. Y. 553, Co., 60 N. Y. 619. But see Lawe v. Hyde, which holds that, in an action brought to 39 Wis. 345. remove a nuisance, damages can only be - See N. Y. Ice Co. v. N. W. Ins. Co., awarded by the verdict of a jury, sed qu. 23 N. Y. 357, 359 ; Cahoon v. Bank of See also, Supervisors r. Decker, 30 Wise. Utica, 7 N. Y. 480; Broiesfcdt v. South 624, 626-630, per Dixon C. J., for a very Side R. R., 55 N. Y. 220, 222 ; Turner v. elaborate opinion in opposition to the doc- Pierce, 34 Wis. 658, 665, per Dixon C. trine of the text and of the cases cited J. ; Linden v. Hepburn, 3 Sandf. 668, 671 ; above in this note. Further illustrations Gray v. Dougherty, 25 Cal. 266. The le- of the text are Stewart v. Carter, 4 Neb. gal and equitable causes of action should 504; Turner v. Althaus, 6 Neb. 54; be separately stated. Gates r. Kief. 7 Cal. Weinland v. Cockran, 9 Neb. 480; Wa 124; Magwire v. Tyler, 47 Mo. 115, 127. Ching V. Constantine, 1 Idaho, 266 ; UNION OF LEGAL AND EQUITABLE REMEDIES. 97 not generally possible to join one legal cause of action with another entirely independent equitable cause of action, there being no antecedent connection between the two. In the cases described above, where the union is permitted, there is, in fact, no joinder of different causes of action ; there is only the union of remedial rights flowing from one cause of action, as will be seen from the judgments of the court in several of the cases cited in the note, and as will be more fully shown in a subsequent chapter. This rule, which has been firmly established by the court of last resort in New York, and which is adopted in all the States with one or two exceptions, has been applied in the follow- ing cases among others : in an action by the holder of the legal title to correct his title deed, to recover possession of the land according to the correction thus made, and to recover damages for withholding such possession ; ^ in an action by one holding the equitable title to procure defendant's deed to be cancelled, and a convej-ance by defendant to himself, to recover possession and damages, and to restrain defendant from conveying away the land ; ^ in an action by the grantor of land to correct his deed by the insertion of an exception of the growing timber, and to recover damages for trees embraced in the exception, wrongfully cut b}- the grantee ; ^ in an action to abate a nuisance, to restrain its further commission, and to recover damages therefor;* in an action by a widow to establish her right of dower, to procure it to be assigned, to recover possession and damages ; ^ and in an action by the vendor of land to recover a money judgment on notes given him for the price, and to foreclose his lien on the land itself.6 § 79. In Missouri, however, the judiciary for a long time denied the correctness of this rule, and rejected it under all circum- stances in which it could possibly be applied. The doctrine was asserted and maintained in a long series of adjudications that the holder of an equitable title, or the possessor of an equitable pri- mary right, can obtain none but an equitable remed}^ prosecuted in an equitable form of action. The Supreme Court of that State 1 Laub V. Buckmiller, 17 N. Y. 620. that a jury trial is necessary to the re- "^ Lattin v. McCarty, 41 N. Y. 107 ; covery of damages. Parker v. Laney, Henderson v. Dickey, 50 Mo. 161. 58 N.'y. 469. 3 Welles V. Yates, 44 N. Y. 525. 5 Brown v. Brown, 4 Robt. 688. ■* Davis V. Laniberton, 50 Barb. 480. « Walker v. Sedgwick, 8 Cal. 398. But see Hudson v. Caryl, 44 N. Y. 553, 98 CR'IL REMEDIES. even went so far as to reject the familiar principle of equity juris- prudence, which permitted the Court of Chancery, having acquired jurisdiction by means of some equitable right, to go on and admin- ister full legal relief in order that the party should not be put to the trouble and expense of a second action at law. In accordance with this narrow view of equity and this narrow construction of the reformed legislation, it was settled that the holder of an equi- table title who seeks to enforce his right and to acquire a legal title by means of a specific performance, a cancellation, or a re- formation of deeds, must, after obtaining that relief, bring a second action at law to recover the possession. If he unite his equitable claim for cancellation and the like with the legal claim for possession, he was actually to be turned out of court. This remarkable interpretation put upon the language of the statute, and so completely defeating its plain intent, was resorted to in the following, among other instances, which are selected as illus- trations merely: in actions brougiit to set aside and cancel deeds of conveyance made to the defendant, alleged to be fraudulent, and to vest the legal title in the plaintiff, and to recover posses- sion of the premises in question ; ^ in an action of partition, where defendant was in possession of the whole land, claiming title therein, it being held that the plaintiff must first establish his legal right by ejectment, and then bring an equity action of par- tition.2 The Supreme Court of Missouri has, however, in a very recent decision, receded from this verj- extreme position, and has partly, at least, overruled the authority of the cases referred to in this and the subsequent paragraph. Although the single judg- ment does not in its reasoning and conclusions accept the liberal views of the New York Court of Appeals in their full scope and extent, yet it plainly tends in that direction, conferring the reliefs of reformation or correction of a deed of conveyance and recovery of j)Ossession of the land included in such deed as corrected.^ 1 Curd V. Lackland, 43 Mo. 139; "Wynn s Henderson r. Dickey, 50 Mo. 161, V. Corry, 43 Mo. 301 ; (iray v. Payne, 43 1G5, per Watrnor J. The judgment in Mo. 203 ; Bobb v. Woodward, 42 Mo. 482 ; this case comments on and condemns the Peyton v. Rose, 41 Mo. 257 ; Walker's leading decisions referred to in the two Adin'r r. Walker, 25 Mo. 367; Magwire preceding notes ; and, although it deals too V. 'J'yler, 47 Mo. 115, 127; Rutherford leniently with the gross ndstakes into V. Williams, 42 Mo. 18, 23 ; Fithian v. which Holmes J. had fallen in announ- Monks, 43 Mo. 502, 517. cing Uie doctrine of those prior cases, yet - Gott V. Powell, 41 Mo. 416 ; Moreau it squarely overrules their central princi- t;. Detchemendy, 41 Mo. 431. pie, and destroys their authority. UNION OF LEGAL AND EQUITABLE REMEDIES. 99 The judiciary of Wisconsin seem now alone, among the tribunals of the several States, to reject this liberal theory of interpretation, and to require separate actions for the assertion of legal and equitable rights, and the procurement of legal and equitable remedies. The principle of unit}' approved and adopted by the highest tribunal of New York has been deliberately rejected after a most thorough examination, and the opposite principle, which distinguishes between the two classes of action, and retains their separate use, and prohibits the recovery of legal and equitable remedies in one suit, is avowedly accepted as being the correct construction of the legislative provisions.^ § 80. The next case to be considered is the same in principle, and nearly so in all its features, with the one just discussed. The plaintiff, as in the last instance, possesses primary rights, both legal and equitable, arising from the same subject-matter or trans- action, and is entitled to some equitable relief, reformation, can- cellation, specific performance, and the like, and to legal relief based upon the assumption that the former relief is awarded ; he avers all the necessary facts in his pleading, and demands both the remedies to which he is entitled. The court, instead of for- mally conferring the special equitable remedy and then proceed- ing to grant the ultimate legal remedy, may treat the former as though accomplished, and render a simple common-law judgment embracing the final legal relief which was the real object of the action.2 This proceeding is plainly the same in principle with the one stated in the foregoing paragiaph ; but it is a more com- plete amalgamation of remedies, a more decided departure from the notions which prevailed under the former system. By the omission of the intermediate step, the actual result is reached of a 1 Noonan v. Orton. 21 "Wis. 288 ; Su- judgment of Dixon C. J. in Supervisors pervisors v. Decker, 30 Wis. 024, 626, v. Decker is an exi)austive discussion of per Dixon C. .L ; Horn v. Luddington, 32 this subject, with a review of the leading Wis. 73. The first of these cases was authorities. Ahhougli there is much in an action brought to compel the specific his opinion that is correct and admirable, performance of an agreement to give a he reaches, as his main conclusions, posi- lease. The complaint also alleged a tions which are in direct conflict with the breach of a covenant which was to have letter as well as the spirit of the codes, been contained in the lease, and demanded See also Lawe v. Hyde, 3!) "Wis. 345; a judgment for the damages arising there- Williams v. Lowe, 4 Neb. 382 ; Paxton v. from as well as for the specific perform- Wood, 77 N. C. 11 ; Mattair v. Payne, 15 ance. Held, that the two could not be Fla. 682. combined ; that the plaintiff must first ob- - Bidwell i'. Astor Ins. Co., 16 N. Y. tain the lease, and then bring his action 26.3, 267 ; Phillips r. Gorham, 17 N. Y. 270; for a breach of the covenant in it. The Caswell i-. West, 3 N. Y. Sup. Ct. 383. 100 CIVIL REMEDIES. legal remedy based upon an equitable primary right or title. No doubt this omission of the intermediate step is often as advanta- geous to the plaintiff as though it had been taken in the most formal manner ; but, on the contrary, it will sometimes liappen that the formal change of his equitable title into a legal one by a decree of cancellation, or of specific performance or reformation, A^ ill be necessary' to secure and protect his rights in the future. As a matter of safety and prudence, the particular form of judg- ment just described should only be used in actions upon executory contracts where a pecuniary payment exhausts their efficiency ; in actions involving titles to land, the full judgment — embracing the equitable relief as well as the legal remedy of j^ossession — would generally be far preferable. The rule permitting such a single legal remedy has been applied in the following among other instances : in an action upon an insurance policy which by mistake was so drawn that the plaintiff — the assured — had no claim for damages, he demanded judgment (1) reforming the in- strument, (2) recovering 87,000 for a loss embraced within its terms as thus reformed, and the court ordered a judgment merely for the amount of the loss as claimed ; ^ in an action to recover lands of which the plaintiff had the equitable title only, the legal title being in the defendant by means of a deed of conveyance from the plaintiff's ancestor, the former owner, regular on its face, but alleged to have been obtained by fraudulent represen- tations, instead of directing a cancellation of this deed and a reconveyance to the plaintiff, the court granted a judgment for the recovery of possession directly ; ^ in an action upon a contract for the building of a house according to certain specifications, the complaint alleging a mistake in the specifications as set out in the written instrument, and averring a performance according to the specifications actually agreed on by the parties, and de- manding judgment for the amount due for such services without praying for any reformation of the contract, the action in this form was sustained, and it was expressly held that no prayer for a correction was necessary .^ The rule here stated, and the deci- sions which sustain it, are plainly in direct opposition to the doc- 1 Bklwell V. Astor Ins. Co., 10 N. Y. Williams v. Slotc, 70 N. Y. 081 ; Whiting 208. See also Cone v. Niagara Fire Ins. v. Root, 52 Iowa, 202. Co., 00 N. Y. 619 ; 3 T. & C. 33 ; Maher -' Phillips v. Gorhani, 17 N. Y. 270. V. Ilibernia Ins. Co., 07 N. Y. 283, 291 ; » CasweU v. West, 3 N. Y. Sup, Ct. 383. UNION OF LEGAL AND EQUITABLE REMEDIES, 101 trine which originally prevailed in the Missouri courts, and which still receives the approval of the Wisconsin judges. § 81. Another case, varying in some of its circumstances from the two which have been described, and yet depending upon the same principle, remains to be considered. If the plaintiff pos- sesses, or supposes himself to possess, primary rights, both legal and equitable, arising from the same subject-matter or transac- tion, and avers the necessary facts in his pleading, and prays for both the remedies corresponding to the two different rights, but on the trial fails to establish liis equitable cause of action and his consequent right to the equitable remedy, his action should not be therefore dismissed ; he should recover the legal judgment which the legal cause of action demands.^ Thus, in an action on a polic}^ of insurance, all the necessary facts being alleged, the complaint demanded a money judgment on account of a loss, and also that the instrument should be reformed by reason of an alleged mistake, which reformation, if made, would increase the sum insured, and enable the plaintiff to recover a larger amount. On the trial he failed to prove the averments respecting the mis- take, and was not, therefore, entitled to any equitable relief. The New York Court of Appeals held that judgment should have been recovered on the legal cause of action for the sum which was actually insured, and reversed the ruling below which had dismissed the action. ^ As another illustration : in an action by the grantor of land against the grantee to set aside the deed of conveyance on the ground that it was procured by false and fraudulent representations, after setting out all the facts which constituted the transaction, the complaint prayed for two reme- dies in the alternative, — (1) damages for the deceit, (2) cancel- lation and a reconveyance. A reconveyance was found to be impossible on the trial, because the defendant had conveyed the premises to bona fide purchasers. A simple legal judgment for the damages caused by the deceit was granted, and was held to be proper by the general term of the New York Supreme Court.^ This rule is now established, except in the one or two States 1 McNeadyr.IIyde, 47Cal.481,483,— 2 n. y. Ice Co. v. N. W. Ins. Co., 23 action to recover possession of land, and N. Y. 357, 359. for an injunction ; Sternberger v. McGov- ^ Graves v. Spier, 58 Biirb. 349, 383, em, 56 X, Y. 12. 21, 15 Abb. Pr. n. s. 384; and see Sternberger v. McGov- 257,271, — specific performance and dam- ern, 15 Abb. Pr. n. s. 257, 271, 56 ages. N. Y. 12. 102 CIVIL KEMEDIES. which retain the distinctions between legal and equitable actions ; but there are some earlier dicta, and even decisions opposed to it,^ which, however, must be considered as overruled.^ § 82. In each of the foregoing instances the complaint has stated all the necessary facts constituting both grounds for relief, and has actually demanded both remedies in the prayer for judg- ment. Another case presents itself with a change of features. The averments of fact are the same, but the plaintiff demands only the special equitable remedy to which he deems himself entitled. On the trial he fails to prove the alleged grounds for equitable relief, but does establish a case for the legal relief which was not demanded in the prayer for judgment, although all the necessary facts, from which the remedial right arose, were averred. It is now, after some hesitation, settled that even in this case the plaintiff is not to be dismissed from court, but should be permitted to recover the legal remedy supported by the allegations of fact contained in the complaint or petition.^ There are dicta in opposition to this rule,'* but they are all over- ruled by the subsequent and more authoritative decisions in the same States. In Missouri this liberal doctrine has not been 1 See Penn. Coal Co. v. Del. & Hudson Canal Co., 1 Keyes, 72. The reporter's iiead-note is not sustained by the decision of this case. A dictum of Mr. J. Emott, at p. 76, is the sole ground for it ; and even this dictum is not so broad as tiie head-note. 2 See Davis v. Morris, 36 N. Y. 569. 8 Marquat v. Marquat, 12 N. Y. ;3oG ; Barlow v. Scott, 24 N. Y. 40, 45 ; Cuff v. Dorland, 55 Barb. 481 ; Graves v. Spier, 58 Barb. 349 ; Tenney v. State Bank, 20 Wis. 152 ; Foster v. Watson, 16 B. Mon. 377, 387 ; Leonard v. Rogan, 20 Wis. 540; White v. Lyons, 42 Cal. 279. In Leonard v. llogan, Dixon C. J. said (p. 542): "If the plaintiff demands relief in equity when upon tlie facts stated he is only entitled to a judgment at law, or vice versa, his action does not as formerly fail because of the mistake. He may still iiave the judgment appropriate to the case made by the complaint." In White V. Lyons, Mr. Justice Crockett (at p. ^82), states tlie general doctrine in a very accurate and comprehensive manner, and a quotation from his judgment will be found ante, in note to § 70. See also Ilamil V. Thompson, 3 Col. 518, 523; Ilarrall v. Gray, 10 Neb. 186 ; Harring- ton V. Robertson, 71 N. Y. 280; 7 Hun, 368; Williams v. Slote, 70 N. Y. 601; Lewis V. Soule, 52 Iowa, 11 ; Whiting v. Root, 52 Iowa, 292. * See, for example, Mann v. Fairchild, 2 Keyes, 100, 111; Haywood v. Buffalo, 14 N. Y. 534, 540. Neither of these cases decides tho point stated by the reporter in Mann v. Fairchild ; but each contains a dicliun which is certainly strong enough. In tlie former Potter J. says : " If a party brings an equity action even now when the same court administers both systems of law and equity, the i)arty must main- tain his equitable action on equitable groimds or fail, even though he may prove a good cause of action at law on the trial." This proposition is certainly incorrect if the party has averred his legal cause of action, even thougii he may not have demanded the legal remedy thereon. UNION OF LEGAL AND EQUITABLE EEMEDIES. .103 adopted, since, as has been already seen, the principle of uniting legal and equitable causes of action and remedies in one suit has been rejected in all its phases. The modification of its earlier notions, which the Supreme Court of that State has made in its latest decisions, does not necessarily extend to the case under consideration. 1 The Supreme Court of Wisconsin seems, also, to have abandoned the position which it originally occupied in ref- erence to the particular subject in question, and now refuses to award a legal remedy to a plaintiff who has only demanded equitable relief.^ § 83. The phases and combinations to which the liberal prin- ciple has thus far been applied have resembled each other in this, that in all of them the plaintiff was clothed with a double reme- dial right and both a legal and an equitable cause of action ; in those which are now to be examined, the plaintiff claims but one remedial right, and sets up but one cause of action. When the complaint or petition alleges a case which entitles the plaintiff to equitable relief, but no basis for legal relief is stated, and prays a common-law judgment, but no equitable remedy of any kind, if the case as alleged is proved upon the trial the equitable rem- edy which is appropriate to it should be awarded. Disregarding the prayer or demand of judgment, the court will rely upon the facts alleged and proved as the basis of its remedial action. This application of the general principle has been made in a case where the complaint or petition stated facts entitling the plaintiff to an accounting as against the defendant in respect of a joint undertaking, but not to a judgment for a sum certain. The prayer, however, was for the ordinary money judgment. The New York Court of Appeals held that this action should not have been dismissed, but that a judgment for an accounting should ^ Myers v. Field, 37 Mo. 434. As to services rendered ; and that in such an the extent of the recent modification, see equitable action a legal remedy could not Henderson v. Dickey, 50 Mo. 161. ^e obtained, relying upon the authority of 2 Horn V. Luddington, 32 Wis. 73. Supervisors v. Decker, 30 Wis. 024, 620. The complaint alleged monevs advanced The conflict between this ruling and tliat and services rendered by plaintiff to de of tlie same court in Leonard v. Eogan, fendant under an oral agreement that 20 Wis. 540, 542, is direct. I make no the latter would convey certain lands, attempt to reconcile them. See Dickson and demanded judgment for a specific v. Cole, 34 ib. 621, 625 ; Turner t>. Pierc^e, performance. Deciding that no case was 34 ib. 058, 665 ; Deery v. McCiintock, 31 made out for a specific performance, the ib. 195 ; Wrigglesworth i'. Wrigglesworth, court also held that the plaintiff could not 44 id. 255. recover for the moneys advanced and the 104 CIVIL EEMEDIES. have been granted. ^ The rule in Missouri seems to have been settled ill an entirely different sense. - § 8-i. If, however, the complaint or petition contains a case entirely for equitable relief, stating no facts upon which a legal remedial right arises, and prays a judgment awarding the equi- table relief alone, but on the trial the plaintiff fails to prove the case as thus alleged, but does establish a legal cause of action not averred in his pleading, his suit must be dismissed ; he can- not recover the legal remedy appropriate to the facts which he succeeds in proving. ^ There is no conflict between this and any of the preceding propositions ; in fact, the one principle governs them all. This principle is that the court looks to the facts alleged and proved, and not to the prayer for relief. If the facts entitling a party to a remedy, legal or equitable, are averred and proved, he shall obtain that remedy, notwithstanding his omission to ask for it in his demand of judgment ; and, if the facts were not averred, he shall not obtain the remedy, although he demanded it in the most formal manner. The reform legislation has not dispensed with the allegations of fact constituting a cause of ac- tion ; on the contrary, it has made them, if possible, more necessary 1 Emery v. Pease, 20 N. Y. 62, 64. See, however, Russell v. Byron, 2 Cal. 86 ; Buckley v. Carlisle, 2 Cal. 420 ; Stone v. Fouse, 3 Cal. 292 ; Barnstead v. Empire Mining Co., 5 Cal. 299. In all these cases, the court, while holding that the plaintiff could not recover a judgment for a cer- tain sum, did not give judgment for an accounting. The question, however, was not raised. Blood v. Fairbanks, 48 id. 171, 174. See also Shilling v. Rominger, 4 Col. 100; Ilamill v. Thompson, 3 Id. 518, 523; Ilarrall v. Gray, 10 Keb. 186; Parker v. Jacobs, 14 S. C. 112 ; Smith v. Bodine, 74 N. Y. 30 ; Williams v. Slote, 70 id. 601 ; Mackey v. Auer, 8 Hun, 180. 2 Maguire v. Vice, 20 Mo. 429; Rich- ardson i". Means, 22 Mo. 495 ; Myers v. Field, 37 Mo. 434. 8 Bradley v. Aldrich, 40 N. Y. 504. This case is important, as it lays down the proper limitations upon the doctrine of some prior decisions which I have cited. These former ndjuthcations might perhaps be wrested from their true mean- ing and claimed to be authorities for granting remedies which had not been demanded, and for which no ground had been alleged in the pleadings. The facts of this case and the language of the judg- ment should be carefully noticed in order to fix the exact line of distinction between it and the former ones which support the general doctrine of the text. The final judgment for damages on account of the deceit was reversed, because the complaint contained no averment of any damages sustained, and not because a judgment for damages cannot be rendered in the same suit which contains also an equi- table cause of action. The addition of certain averments to the complaint would have made this case identical with Graves V. Spier, supra. See also Stevens v. The Mayor, &c., 84 N. Y. 296, 305 ; Arnold v. Angell, 62 id. 508 ; People's B'k v. Mit- chell, 73 id. 406, 415; Bokes v. Lansing, 74 id. 437 ; Wintermute v. Cooke, 73 id. 107 ; Smith v. Bodine, 74 id. 30 ; Lawe v. Hyde, .39 Wis. .345; Meyer v. County of Dubuque, 43 Iowa, 592 ; Shilling r. Rom- inger, 4 Col. 100; liamill v. Thompson, 3 id. 518, 523. TKIAL OF LEGAL AND EQUITABLE ISSUES. 105 than under the old system. The converse of the rule above stated is also true. If the plaintiff sets forth a case entirely for legal relief, and prays a legal judgment alone, and at the trial fails to prove the averments actually made, he cannot establish an equitable cause of action not pleaded, and recover an equitable remedy thereon. ^ § 85. The principle may be applied in still another form or combination of circumstances. In a purely legal action, or, to speak more correctly, in an action where the plaintiff sets forth and mainly relies upon a legal primary right or title, and asks a remedy which is purely legal, he may still invoke the aid of an equitable right or title which he holds, or of which he may avail himself, in order to maintain his contention, and obtain the legal relief wliich he seeks. This is a more indirect union of legal and equitable rights and causes of action than exists in any of the instances heretofore discussed ; but it is none the less such a union. ^ § 8(5. As to the mode of trial when the complaint or petition sets forth an equitable and a legal cause of action, there is some diversity in the practice of the several States. The constitutions 1 Drew V. Ferson, 22 Wis. 651. This the land on account of failure to pay the case resembles Emery v. Pease, supra, rent. The defence was as follows : Tay- and might be confounded with it. The lor had given a mortgage on the land distinction, however, is plain upon exami- which had been foreclosed, and the land nation, and at once removes any appear- was bought by Dr. Clarke in 1831, and ance of conflict. In Emery i'. Pease, the was by him conveyed to one llisley and complaint stated facts showing that the from him by mesne conveyances to the plaintiff was entitled to an accounting, defendant. The defendant's contention although it prayed for a money judgment, was that Dr. Clarke in 1831, being owner In Drew v. Ferson, tlie pleading set out both of the land and of the rent-charge, simply a case to recover money laid out the latter merged and was extinguished, and expended; it did not contain any alie- In reply, the plaintiff proved that Dr. gation upon which to base a judgment for Clarke did not intend tliat the rent-charge accounting. In the former case, there- should merge, but that it should be kept fore, it was proper to grant the equitable alive. The General Term of the Supreme remedy, and in the latter it was proper Court held that this doctrine of non- to dismiss tiie suit ; there is no conflict. merger was purely equitable, and could '•^ Siieelian v. Hamilton, 2 Keyes, 304 ; not be invoked by the piaintitt' in this 3 Abb. Pr. n. s. 197. This was an action legal action, and that the plaintifl" should to recover possession of land. Living- have firsl established the rent-ciiarge in ston, the original owner, had demised the an equitable action, and then brought this land to one Taylor by a perpetual lease, action of ejectment. The Court of Ap- reserving a rent-charge with a clause of peals reversed this decision, and laid re-entrj'. L. assigned this rent-charge down the doctrine of the text. See, also, and all his rights to Dr. Clarke, who died Arthur v. Homestead Ins. Co., 78 N. Y. in 184H, and the plaintiff is his heir-at- 4t)2, 467. law. The action is brought to recover 106 CIVIL REMEDIES. protecting the jury trial in common-law cases in which it had been customarily used, the defendant may, of course, insist that the legal issues shall be passed upon by a jury. He may waive this right by a stipulation in writing, by an oral stipulation made in open court, by failing to appear on the trial, and perhaps by permitting the trial to be actually entered upon without objection. If the litigant parties, or either of them, assert their rights as thus stated, it is settled in New York that the legal issues must be tried at a circuit court, or at a trial term of the court in which the action is pending ; ^ and it seems that all the issues, legal and equitable, must thereupon be tried together in the same manner, for it is said that " uo provision is made for two trials of the issues joined in the same action." ^ If a cause is brought on to trial before the court sitting without a jury — in New York, the special term — as an equity cause, and the trial is commenced under that supposition, the defendant not waiving his right by acquiescence, and the court, in the course of the investigation, discovers that it involves separate legal issues, the complaint should not be dismissed on that account ; the trial should be sus- pended, and the case sent to the Circuit or other court possessing a jury. ^ The same rule prevails generally in other States. A mistake in bringing on the cause for trial is to be corrected by simply sending it to the proper court or placing it upon the proper docket. ^ In some of the States provision is made for the trial of the issues separately and at different times. The equi- table issues may be tried first and the legal issues afterwards, or the order may be reversed as the nature of the case and the rela- tions of the issues seem to require. ^ 1 Davis V. Morris, 80 N. Y. 569 ; Peo- Smith v. Moberly, 15 B, Mon. 70, 73 ; Ben- pie V. Albany, &c., R R., 67 N. Y. 161, nett v. Titherington, 6 Bush (Ky.), 192. 174. See Guernscj- i\ Am. Ins. Co., 17 Minn. '•i Ibid. p. 572, per Grover J. 104, 108 ; Harrison v. Juneau Bank, 17 8 Ibid. p. 573. Wis. 340 ; Du I'ont v. Davis, 35 Wis. * Trustees, &c. v. Forrest, 15 B. Mon. 631, Go!) ; and see Eiclnnond r. Dubuque, 168; Foster v. Watson, 16 B. Mon. 377, &c. R. R., 33 Iowa, 422, 489-401. On the 387 ; Sale w. Crutchfield,8 Bush, 636, 044. mode of trial, see also McPherson v. If an action is wrongly transferred to the Featherstone, 37 Wis. 632; Lewis v. equity docket when no valid equitable Soule, 52 Iowa, 11 ; Davison y. Associates issues are presented by the pleadings, of the Jersey Co., 71 N. Y. 333; Wheel- this is error which requires a new trial, ock v. Lee, 74 id. 495, 500, and cases Creager v. Walker, 7 Bush, 1, 3. cited. An equitable defence sot up does ^ Massie V. Stradford, 17 Ohio St.506 ; not change the nature of the action. Wis- Petty V. Mailer, 15 B. Mon. 591, 604; ner r. Occumpaugh, 71 N. Y. 113, 117. NATURE OF EQUITABLE DEFENCES. 107 SECTION FOURTH. EQUITABLE DEFENCES TO ACTIONS BROUGHT TO ENFORCE LEGAL RIGHTS AND TO OBTAIN LEGAL REMEDIES. § 87. Another practical effect of removing the distinction between actions at law and suits in equity is shown in the em- ployment of equitable defences to actions brought to enforce legal rights and to obtain legal remedies. The ancieut system knew of no such union, and a thorough-paced lawyer of the old school would have deemed it incestuous. Legal rights set up by the plaintiff must be met in the same action by legid rights set up by the defendant. If the defendant, when prosecuted in an action at law, had an equity which, if worked out, would defeat the recovery, his only mode of redress was to commence an inde- pendent suit in chancery by which he might enforce his equitable right, and in the mean time enjoin his adversary from the further prosecution of the action at law. A single familiar example will illustrate the situation. A. has entered into a contract with B. to convey to the latter a farm on payment of the price, and lets him into possession. The price is paid in full, so that the vendee is fully entitled to his deed. A., in this position of affairs, com- mences an action of ejectment to recover possession of the land. By the common-law system B. would have no defence wdiatever to that action ; the legal title is in the plaintiff, and his own title and right to a deed, being equitable, w^ere not recognized by courts of law as any defence. Of course a municipal law which did not furnish some means of enforcing B.'s right and defeating A.'s action would be incomplete, and unfitted for a civilized people. The common law provided a means, but it was cumbrous, dilator}'-, and expensive. B. commences a suit in the Court of Chancery, sets forth the agreement to convey and all the other facts from which his equitable title arises, alleges the pending ejectment brought by the vendor, and prays for the proper relief. It is im- portant to notice the extent and nature of this relief, because it throws light upon questions which now arise concerning the doc- trine of equitable defences. The vendee might content himself with asking and obtaining an injunction which would stay the pending ejectment, and leave him in possession undisturbed by 108 CIVIL REMEDIES. that action, but would plainly not be a perfect and lasting pro- tection in the future. To end the matter and to secure himself absolutely, he must ask and obtain the affirmative remedy of a specific performance and a conveyance from A. to himself. This being done, he is armed with the legal title, and can defend any legal action brought against him by the vendor or his heirs or grantees. Nothing could be devised more cumbrous than this double litigation to enforce one right and to end one controversy. Nothing could be more simple, natural, and necessary than the reform which permits the equitable right to be pleaded and proved in the action at law ; and yet, when the change was made by the legislature, experienced and learned lawyers and judges denounced it, and strove to render it merely nominal. Even at the present day, and in States where the liberal doctrine has been accepted and has received the sanction of the highest tribunals, individual members of the bench will occasionally raise their voices in strenuous opposition ; and in one or two of the States an interpretation has been placed upon the statute which confines its beneficial operation within the narrowest limits. The subject- matter of the present section naturally separates itself into three divisions, and the discussion will follow that order: (1) What is an equitable defence? (2) When may an equitable defence be interposed in an action purely legal, which will include the joinder of equitable and legal defences in the same suit? and (3) When can affirmative relief against the plaintiff be granted to the defendant upon the equitable defence which he sets up? § 88. What is an equitable defence ? It is to be observed that this term contains two distinct words, and that the separate meaning of each is essential to the complete and accurate concep- tion of the whole, — "equitable" and "defence." Equitable is used in its technical sense as contrasted Avith legal ; that is, the right which gives it its efficacy is an equitable right, — a right formerly recognized and enforced only in courts of equity, and not in courts of law. The notion involved in the word " defence " is, however, the most important to observe. In its judicial sig- nification, a defence is something which simply prevents or defeats the recovery of a remedy in an action or suit, and not sometliing by means of which the party who interposes it can obtain relief for liimself. If the codes liad merelj'in express language author- ized the defendant to set up equitable defences^ but had not NATUllE OF EQUITABLE DEFENCES. 109 enacted any further provisions in reference to the subject-matter, the granting of affirmative equitable remedies to the defendant could not liave been inferred from such permission. A " defence " is essentially negative, and not affirmative. The facts from which tlie defensive right arises, ma}^ perhaps, in a proper occasion and when employed for that purpose, be made the basis of affirmative relief; but, Avhen so employed, they would not be a defence. In short, a defence is not to be conceived of as the means of acquir- ing positive relief or any remedy, legal or equitable. When, therefore, the statute permits an equitable defence to be inter- posed in a legal action, it merely contemplates the fact that the equitable right averred shall prevent the plaintiff from recovering the legal remedy he is pursuing hy his action. If to tliis nega- tive effect is added the privilege of obtaining an affirmative judg- ment against the plaintiff, based upon the same equitable right, the latter so far ceases to be a " defence," and becomes in turn a cause of action. The action itself thus assumes a double aspect ; each litigant party in this respect becomes an actor, and each a defendant. This analysis may appear to be, and certainly is, elementary and familiar ; but it is needed to clear up some confusion and difficulties into which certain courts have fallen in reference to the subject under consideration. These courts, as will be seen in the sequel, would restrict the operation of the reform to those cases in which the defendant asks and obtains some specific affirmative equitable relief against the plaintiff; in other words, to those cases in which the equitable right relied upon by the defendant is not used as a defence at all, but is averred as a true cause of action. This construction is, as it seems to me, a palpable error, and it deprives the legislative provision of half its efficacy. § 89. A few years ago the British Parliament, among its many legal reforms, enacted that in England an equitable defence might be pleaded in an action at law. In giving construction to this remedial statute, the English courts of law held that no such defence was admissible, — in other words, they would recognize and enforce no such defence, — unless it were of such a nature that courts of equity, in accordance with their well-settled doc- trines, would, if the same facts were set out in a bill of complaint, grant an immediate injunction restraining the further prosecution of the action at law. This construction, of course, destroyed the 110 CIVIL REMEDIES. practical utility of the statute. The American courts have not followed this extremely narrow interpretation. § 90. A defence is a right possessed by the defendant, arising from the facts alleged in his pleadings which defeats the plain- tiff's claim for the remedy which he demands b}- his action. An equitable defence is such a right which was originally recognized by courts of equity alone. A concise and accurate definition w^as given by one of the members of the New York Court of Appeals in an early case. "Under the head of equitable defences are included all matters which would before have authorized an application to the Court of Chancery for relief against a legal liability, but which at law could not be pleaded at bar. The facts alleged by way of defence in this action would have been good cause for relief against the judgment in a court of chancery [the suit was brought on a judgment], and under our present system are, therefore, proper matters of defence."^ Another judge said in the same case : " An equitable defence to a civil action is now as available as a legal defence. The question now is, Ought the plaintiff to recover? and anything which shows tliat he ought not is available to the defendant, whether it was formerly of equitable or of legal cognizance."^ I need not pur- sue this analysis further ; the instances in which equitable de- fences have been sustained, as given in the cases hereafter cited, will explain and illustrate their nature more clearly than any abstract definition or description. § 91. Express as is the language of the statutes, and well established as is the juridical nature of " defence " in general, the doctrine has been strenuously maintained, and is supported by the decisions of respectable courts, that a defendant cannot avail himself, as a defence, of facts entitling him to equitable relief against the plaintiff's legal cause of action, unless he does it by demanding and obtaining that specific remedy which, when granted, destroys the cause of action ; in other words, he cannot invoke the right as long as he treats it and relies upon it as a 1 Dobson ('. Pcarce, 12 N. Y. 156, 166, equitable defence must or only may be set per Allen J. See Webster v. Bond, up, sec Erie Kailwaj' v. Ramsa}', 45 N. Y. Hun, 437 ; Wisner v. Occumpaugh, 71 G07, per Folgcr J ; Giles v. Austin, 62 id. N. Y. 113, 117; Wa Chung v. Constan- 48G ; Ilicker i». Pratt, 48 Ind. 73. tine, 1 Idaiio, 266 ; Tennoycr i-. Allen, 51 2 Dobson v. Pearce, 12 N. Y. 156, 168, Wis. 360 ; 50 Wis. 308 ; Holland v. .John- per Jolinson J. son, 51 Ind. 346. As to whether an NATURE OF EQUITABLE DEFENCES. Ill defence. If he does not institute a separate action based upon his equitable right, and recover the specific relief therein, and restrain the pending action at law, he must, at least, in the answer jDleaded to that action at law, affirmatively demand the equitable remedy, and this remedy must be conferred upon him. If he simply avers the facts as a negative defence, he will not be per- mitted to rely upon them and to defeat the plaintiff's recovery by that means. Certain of the cases which announce this doctrine, together with the reasoning by which it is sustained, will be found in the foot-note.^ The error of this doctrine has already been 1 Follett V. Heath, 15 Wis. GOl ; Con- ger V. Parker, 29 Ind. 380 ; Hieks v. Shep- pard, 4 Lans. 385, 337 ; Cramer v. Ben- ton, 60 Barb. 216. Sec also Kenyon v. Quinn, 41 Cal. 325 ; Lombard v. Cow ham, 34 Wis. 486, 492; Dewey v. Hoag, 15 Barb. 365. As tiiis doctrine is insisted upon in these cases witli great emphasis, and as some of them are very recent, and are in direct opposition to otlier decisions in the same States, I shall give the views of the courts at lengtli. Follett v. Heath was an action to recover posses- sion of chattels. The defendant answered by way of equitable defence. lie claimed the chattels under a chattel mortgage, given tliereon bj' the plaintiff, which was intended to secure a certain note executed by the plaintiff, wliich had become due ; but by mutual mistake it was made to secure another note of the plaintiff which was not yet due. The answer asked in the usual form for a return of the goods wliirh had been taken by the plaintiff, but did not pray for a reformation of the mortgage. This answer, it was held, dis- closed no defence to the action. In his judgment, Paine J. said (p. 602) : " It is true that equitable defences may now be interposed. But the facts here sought to be interposed do not constitute any equi- table defence, if they were established. The papers having been made wrong by mistake, the parties are bound by them unless they take some appropriate method to correct the mistake. That method is not to prove the mistake in an action at law, and have the same benefit as though the instruments were reformed ; but it is to bring an equity action to reform the instrument, so that it can have its proper legal effect. . . . Equity aids in such cases by reforming the contract, not by giving effect to it without being reformed." The learned judge here speaks as though the ancient system of separate equity and common-law jurisdictions still existed in full force and effect, and as though the legislature had not made its sweeping reform by combining the two into one mode of administering justice. In Conger I'. Parker the complaint alleged a convey- ance from defendant to plaintiff, by a deed containing the usual covenants, of a farm on which were several growing crops, — naming them, — among which was a crop of wheat ; and that defendant took and converted these crops to his own use. The answer set up an agree- ment that the wheat crop was to be ex- cepted from the conveyance, but that by mistake this exception was omitted from the deed. There was no prayer for a refor- mation. The court held this answer bad : ( 1 ) because it did not go to the whole cause of action, and (2) as stated by Frazer J., p. 381 : " The answer is bad for another reason. When a mistake in a deed or other written instrument is relied on, tlie plead- ing should go further than is done in this case. It should have prayed affirmative relief, that the instrument be reformed, so as to show the contract intended to have been embodied in it, and that, when so refor.T.ed, it might be allowed as a bar to the suit, or to so much thereof as it would bar. This might be done by an answer in the nature of a cross-bill in equity. It is not necessary, under the code, to bring an independent suit for the purpose as it was formerly when the origi- nal suit was at law." The Indiana court 112 CIVIL REMEDIES. demonstrated. A defence is a negative resistance, an obstacle, a sometliing which prevents a recovery, whether it be equitable or here lays down a more precise and posi- tive rule tlian was done in the Wisconsin ease, which leaves it douhtful whether the defendatit can ohtain affirmative relief in the original action upon his answer, or whether he must hring a separate equi- table suit for that purjiose. Hicks v. Sheppard and Cramer v. Benton are two quite recent decisions of the general term of the Supreme Court in New York, the opinion in each being delivered by the same judge. They are in such direct an- tagonism with several judgments of the highest tribunal of that State that they naturally require a special notice. The first was an action to recover lands, the plaintiff claiming under a deed from de- fendant to PI. and M., who were the grantors of the plaintiff by a deed with a covenant of warranty. The answer al- leged, as an equitable defence, that the deed from defendant to H. and M. included the lands in question through a mistake, and prayed a reformation. On the trial, the court found the mistake, sustained the defence, and held the plaintiff not entitled to recover ; but from the absence of the proper parties the deed to H. and M. could not be reformed in that action. The General Term on Appeal held, in an opinion delivered by Talcott J. (p. 337), that the defence was based solely upon defendant's right to hare his own deed actuall)/ rrformed ; that such affirma- tive relief could not be granted in this action, l)ecause H. and M. were not par- ties thereto ; and therefore defendant could not avail himself of his right as a defence. Cramer t\ Benton was also an action to recover land. The premises in question were originally owned by defend- ant and his brother Lewis B. in common ; they executed deeds of partition ; in one deed defendant conveyed all his interest in the premises in question and other lands to Lewis B., and throtigh divers mesne conveyances the same were finally conveyed to the plaintiff, the defendant, however, remaining in possession during the entire period. The answer alleged a mistake in the original deed from defend- ant to his brother Lewis, by means of which the premises were improperly included therein, and that this mistake had been repeated in each deed down to the one which transferred the title to the plaintiff. Neither the brother Lewis B. nor any of the intermediate owners were parties. On the trial the defence was established, and the complaint was dismissed without any affirmative relief to the defendant. Talcott J. delivered the opinion of the General Term on Appeal, and, after quoting the section of the code which expressly permits equitable de- fences, he proceeds (p. 22-5) : " This seems to have been construed to embrace equi- table causes of action affecting the equita- ble right of the plaintiff to enforce his le- gal cause of action, and probably such was the intention of the provisions referred to. In this enlarged sense an equitable defence or counter-claim to a legal cause of action can mean nothing less than such a state of facts and parties as would in- duce a court of equity to interfere, and restrain the prosecution of the action at law." He goes on to hold that there must be such a case as would induce a court of equity to reform the deed ; not that an actual judgment of reformation must necessarily be pronounced if the defendant waives it, or does not demand such full relief, but there must be the same facts which would be the basis of such a decree giving that affirmative relief In the present case a court of equity would not grant the relief, be- cause the proper parties were not before the court. Judge Talcott avoids the exactly contrary ruling of the Court of Appeals in Dobson r. Pearce, 12 N. Y. 150, and Phillips v. Gorham, 17 N. Y. 270, by asserting that the point in ques- tion was not brought to the attention of that high tribunal when they made their decisions in those cases. The doubtful and hesitating manner in which the learned judge speaks of equitable de- fences in general at the commencement of the above quotation is somewhat re- markable in the face of the express re- quirements of the statute, and of repeated decisions made by the courts of this and NATURE OF EQUITABLE DEFENCES. 113 legal. If every equitable defence, in order to be available, must consist in an affirmative recovery of specific relief against the plaintiff, or at least in the right to recover such relief if the de- fendant choose to enforce it, for exactly the same reasons, and with exactly the same force, it might be said that every legal defence, in order to be available, must consist of an off-set or counter- claim. In fact, the codes, without exception recognize tlie cor- rectness of the rule stated in the text. The sections which prescribe the form and contents of the answer enumerate "de- fences," legal and equitable, and counter-claims. A recovery of equitable relief by defendant is as truly a counter-claim as the recovery of pecuniary damages ; ^ and the statute thus expressly other States in giving construction there- to. The conclusion at which lie arrives is in exact opposition to the ver^' ratio decidendi of the Court of Appeals in the cases referred to ; and the assumption that the real point involved in the discus- sion had escaped the attention of that court is, to say tiie least, gratuitous. The fallacy running through the whole judg- ment is the confounding of facts and rights arising therefrom used defensively, and the same facts used as the basis of affirmative relief. In Kenyon v. Quinn, 41 Cal. 325, which was an action to recover land, the plaintiff held the legal title in trust for the defendant, while the defend- ant held the equitable title, and could have compelled a cpnveyance ; but the defendant did not plead any of these facts, nor any equitable defence, in his answer. The court held that an equitable title must be pleaded, and appropriate relief must be demanded, in the answer ; and, this not being done, the defence could not be proved. The same point was decided in Cadiz v. Majors, 33 Cal. 288 ; Clark v. Lockwood, 21 Call. 220. The position here taken, to the effect that affirmative relief must be demanded in the answer, is a mere dictum. The objection that the defendant had omitted to set up his equi- table defence at all plainly disposed of the whole case. The question is put at rest in California. Bruck v. Tucker, 42 Cal. 352 : Miller v. Fulton, 47 Cal. 146. Later Wisconsin cases have settled the rule for that State ; and, in fact, a special provision of the code leaves no doubt. R. S. ch. 141, § 7, expressly requires the defendant, in pleading an equitable de- fence, to demand such affirmative relief as he is entitled to. In Lombards. Cow- ham, 34 Wis. 486, 492, the court said, " The defence, being an equitable one, to be available in an action of ejectment, must be set up in the answer, and be ac- companied by a demand for such relief as the defendant supposes himself entitled to. A mere equitable defence is not suffi- cient ; there must be a counter-claim also." It was further said that Kent j;. Agard, 24 Wis. 378, does not conflict with this doc- trine. See Du Pont v. Davis, 35 Wis. 634, 039 ; Hills v. Sherwood, 48 Cal. 386, 392. In Minnesota it is said that an equitable defence in an action to recover land must be so strong and clear an equi- table title in the defendant, as, in the ab- sence of fraud or mistake, to entitle him to a decree for a conveyance on a bill for that purpose. McClane v. White, 5 Minn. 178, 190. See Webster v. Bond, 9 Hun, 437 (Comp. Hicks v. Sheppard and Cra- mer V. Benton, supra) ; Ten Broeck v. Orchard, 74 N. C. 409 ; Quebec Bank v. Weyand, 30 Ohio St. 126; Hatcher v. Briggs, 6 Oreg. 31 ; Pennoyer v. Alien, 51 Wis. 300; 50 Id. 308; Lawe v. Hyde, 39 Id. 343 ; Henkle v. Margerum, 50 Iiid. 240 ; Winslow v. Winslow, 52 Id. 8 ; Thompson v. Fall, 64 Id. 382 ; Kinefield V. Hayes, 57 Cal. 409. 1 See infra, chap, iv., sec. 6. Affirma- tive relief will of course be given in proper cases. As an illustration, see Blake v. Buffalo Creek K. K., 56 N. Y. 114 CR^IL EEMEDIES. distinguishes between equitable defences as such and the recov- eries of affirmative equitable relief. The cases which will be referred to in subsequent paragraphs show that the overwhelming weight of authority sustains the doctrine which I have stated as the correct construction of the codes. § 92. I now pass to the consideration of the cases in which equitable defences have been admitted. It will be impossible to state any exhaustive rule derived from the decisions thus far made by the courts ; for it cannot be supposed that they have exhausted the instances in which this species of defence is proper. There does not seem to be any limit to the use of such defences other than is found in the very nature of equity jurisprudence itself. Whenever equity confers a right, and the right avails to defeat a legal cause of action, — that is, shows that the plaintiff ought not to recover in his legal action, — then the facts from which such right arises may be set up as an equitable defence in bar. There can be no other limitation, unless we would defeat the plain intent of the statute, and return to the old method of granting to the defendant a decree in equity from which a legal defence • may arise. The following cases are intended as illustrations and examples rather than as a full enumeration of the possible instances in which the defence may be inter- posed. § 93. In an action brought to recover damages for the breach of covenants contained in a deed of conveyance, the defendant ma}^ set up, as an equitable defence, a mistake in the instrument which should be corrected ; as, for example, in such an action on a covenant against incumbrances, the alleged breach being an outstanding mortgage, the defendant may show the original agreement to except such mortgage from the operation of the covenant, and that by mistake the exception was omitted.^ In an action upon a judgment recovered against the defendant, the latter pleaded that the judgment was originally obtained by fraud, and that he had instituted a suit in equity against the judgment creditor in the State of Connecticut, in wliieh the judgment had been decieed to be void, and its enforcement had been enjoined. These facts constituted a perfect equitable defence and complete 485, 493, 494 ; Bailey v. Bergen, 4 N. Y. case that the defendant couhl set up this Sup. Ct. G42. matter as a dcfi'inr, but could not have any 1 Haire v. Baker, 5 N. Y. 357. The aflBrmative relief. Tliis latter position New York Court of Appeals held in this has been since abandoned by tlie court. EXAMPLES OF EQUITABLE DEFENCES. 115 bar to the action.^ In an action to recover damages for the non- performance of an executor}' contract to run a steamboat on a certain route for the plaintiff, the answer alleged a mistake in drawing the contract by which a proviso was omitted that would have excused the defendant's failure to perform, and pra3'ed a reformation. The New York Court of Appeals sustained the defence, saying : " The court below clearly erred in holding that the equitable defence could not be tried in this action. That it could be is too thoroughly settled to admit of further dispute." ^ The defence may arise from facts occurring subsequent to the joinder of issue, and require to be interposed in a supplemental answer. On the day of trial of an action for work and labor, the parties met, had a negotiation, and settled the controversy, bj- the terms of which settlement the suit was to be abandoned. The plaintiff afterwards repudiating the compromise and proceeding with the trial of the cause, the defendant, after tendering perform- ance, was permitted to set up the facts in a supplemental answer; and it was held that they constituted a perfect equitable bar.^ § 94. The action to recover possession of land — analogous to ejectment — is the one in which the equitable defence is the most frequent ; and here, of course, it assumes a great variety of shapes.* Those, however, which are the most common are the right to a correction of either the plaintiff's or the defendant's muniments of title because of mistakes therein; the right to a 1 Dobson v. Pearce, 12 N. Y. 156, 165. specific performance by reducing it to This is tbe leading case in New York. It writing would have been useless ; and fully establishes the doctrine that an equi- there could be no specific performance of table defence may be pleaded as a bar, the substance of the agreement. when no affirmative relief is asked, or * An answer setting up a mortgage of could be granted if asked. The ratio deci- the land in question, given bj- the plaintiff dendi was tersely summed up by Johnson or his predecessors, default in payment of J. " The question now is, Ought the the debt secured thereby, and possession plaintiff to recover? and anything which of the land by defendant under the mort- shows that he ought not is available to gagee, states a good equitable defence to the defendant, whether it was formerly an action brought to recover possession of equitable or legal cognizance." Pen- of the premises. Harrington r. Fortner, noyer v. Allen, 51 Wis. 360 ; 50 id. 308 58 Mo. 468, 474 ; Hubble v. Vaughan, 42 (action to abate a nuisance). Mo. 138; I\Iaxwell r. Campbell, 45 Ind. 2 Pitcher v. Hennessey, 48 N. Y. 415, 360, 363 ; Hammond v. Perry, 38 Iowa, 422. In this case the defendant asked 217. See also Collins v. Eogers, 63 Mo. and obtained the reformation. 515 ; Ten Broeck i\ Orchard, 74 N. C. 3 Kelly r. Dee, 2 N. Y. Sup. Ct. 286. 409; Heermans v. Robertson, 04 N. Y. No affirmative relief was asked or grant- 332; McManus v. Smith, 53 Ind. 211; ed, and it would seem that none was pos- Thompson v. Fall, 64 id. 382; Hoppough Bible ; the arrangement was oral, and a v. Struble, GO N. Y. 430. 116 CIVIL REMEDIES. specific performance by the plaintiff of his contract to convey the land ; and the right to a cancellation of a conveyance on the ground of fraud. These three classes of defences are found in numerous forms according to the different circumstances which may arise in the transactions of life and the affairs of business ; but they may all be reduced to the same general principle. In some instances the equitable rights have been admitted in a purely defensive character, and in others the judgment has awarded affirmative relief to the defendant. In one case, the plaintiff having proved title in himself by means of a deed from the conceded original owner, the defendant, by way of an equi- table bar, alleged that, prior to the plaintiff's conveyance, he had purchased of the said owner several parcels of land, including the one in question, that the deed from such original owner should have contained a description of the premises claimed by the plaintiff, but by mistake it was omitted. This defence was sustained as an equitable bar without an actual reformation of defendant's deed ; ^ and in the same manner a mistake in a deed from the plaintiff to the defendant, by which the land in suit was omitted, may be made the basis of an equitable defence without any actual reformation asked or granted.^ The title of the plain- tiff in another similar action being claimed under a sheriff's deed given in pursuance of a sale on execution against the original owner, the defence was that at the sale the sheriff expressly ex- cepted the parcel of land in question therefrom, that his certificate and deed omitted such exception and included a description of the premises by mistake, and that the owner subsequently con- veyed to the defendant. The court, on the defendant's demand, reformed the plaintiff's deed, and admitted the defence.^ In a similar action, where the plaintiff's title was through a sheriff's deed, executed to him as purchaser at an execution sale against the person who was the admitted source of title, the defendant pleaded, as an equitable defence, an equitable mortgage arising prior to the inception of the judgment lien, and his own posses- sion under the same. These facts were held to constitute a good defence witliout affirmative relief asked or granted.* 1 Crary v. Goodman, 12 N. Y. 266, 8 Bartlett v. Judd, 21 N. Y. 200, 203. 268. See also Guedici v. Boots, 42 Cal. « Cliace v. Peck, 21 N. Y. 581. The 402, 456. court liaving first decided tliat the facts 2 Hoppough V. Struble, 2 N. Y. Sup. allesed constituted tlie defendant an equi- Ct. 664. table mortgagee, so that his possession EXAMPLES OF EQUITABLE DEFENCES. 117 § 95. Equitable defences are very frequent in actions brought to recover possession of lands by the vendors against the vendees, when an agreement to convey the land in question has been entered into.^ As illustrations, the following have been upheld : when the complaint alleged the non-payment of tlie purchase price at the stipulated time, and a consequent forfeiture, the defence at the time of payment had been extended by an oral agreement, and that a tender had been duly made in compliance with sucli agreement ; ^ in an action in all respects the same on the part of the plaintiff, the defence that a tender had been made and kept good, the court expressly refusing to grant the affirma- tive relief of specific performance to the defendant.^ The ven- dee's right to possession under a contract to convey is a very familiar species of equitable defence to actions brought to recover the land by the vendor.* In an action by the grantee of the vendor, who took with constructive notice of the defendant's in- terest, the right of the vendee's assignee to possession and to a deed of conveyance is a good equitable defence in bar.^ To an action for the foreclosure of a mortgage executed by the defend- ant to the plaintiff's assignor, the answer alleged a mistake in the instrument in relation to the terms and times of payment, claiming that, when corrected, nothing would be due, and de- manded the affirmative relief of a reformation. This remedy was under it would be a good equitable de- id. 619 ; Hubbell v. Von Schoening, 49 fence, stated the rule in a very accurate id. 330, 331 ; Giles v. Austin, 62 id. 486; and condensed manner, per Denio J. (p. Ingles v. Patterson, 36 Wis. 373. 586) : " But, since the blending of legal 2 Cythe v. Fountain, 51 Barb. 186, 188. and equitable remedies, a different rule ^ Harris v. Vinyard, 42 Mo. 568. must be applied. The defendant can tie- * Petty v. Mailer, 15 B. Mon. 604; Jeat the action upon equitable principles; Onson v. Cown, 22 Wis. 329. But it is and if, upon the application of these prin- held in Kentucky that in an action for ciples, the plaintiff our/ht not to be put into trespass to lands, brought by a vendor in possession of the premises, he cannot recover in possession against the vendee, the rights theaction." The principle so concisely and of the latter under his contract do not clearly enunciated is a complete answer constitute an equitable defence for the to the reasoning of Mr. Justice Talcott, trespass, which was an entry upon the quoted supra in the note to § 91. See land under a claim of right founded upon McLane v. Wiiite, 5 Minn. 178 ; Richard- tlie contract; in other words, tlie contract son V. Bates, 8 Ohio St. 257, 264. does not give the vendee a riglit of e7itry, 1 In Cavalli v. Allen, 57 N. Y. 508, 514, although it would be an equitable defence it was held that the vendee in possession to an action brought to recover the land may set up, as an equitable defence, the if he was already in possession. Creager same equitable rights wliich he could have v. Walker, 7 Bush, 1, 3. enforced had he brought an action for a ^ Talbert v. Singleton, 42 Cal. 390, 395, specific performance. Duffy v. O'Don- 396; Cavalli y. Allen, 57 N. Y. 508. ovan, 46 N. Y. 227; Laird v. Smith, 44 118 CIVIL REMEDIES. granted by the court, although the mortgagee was not a party to the action.^ In pleading an equitable defence, all the facts should be averred which are necessary to the existence of the equitable right. In many instances this right is, from the nature of the case, a right to affirmative remedy ; and, whether this remedy is demanded or not, the answer should contain all the substantial facts that would be found in a cross-bill in chancery .^ § 96. These defences are not, however, confined to actions in- volving the title to lands, or those brought upon contracts relat- ing to land ; they are proper in actions based upon mercantile agreements, and in all others where an equity may arise and affect the rights of the parties. The complaint in an action upon a promissory note demanded judgment for a certain balance unpaid. A defence that the note was given upon a settlement, and that by mistake the amount was made too large by a certain sum which was more than the unpaid balance claimed by the plaintiff, was held a good equitable bar to the action, without any specific relief demanded or awarded ; ^ and in an action upon a jDolicy of reinsurance the recovery was defeated by the fact, set up in defence, that the same person acted as agent for both the parties in procuring the policy to be issued, and that his agency for the plaintiff was unknown to the defendant at the time.* 1 Andrews v. Gillespie, 47 N. Y. 487, 3 Seeley v. Engell, 13 N. Y. 542, re- 490. Tiie objection of the want of the versing s. c. 17 Barb. 530. See Becker v. mortgagee as a party was expressly taken Sandusky City Bk., 1 Minn. oil. Also and as expressly overruled, the court hold- in actions on notes, see Heron v. Jury, ing that he was not a necessary party in Idaho R. 228 ; Holland v. Johnson, 51 order to a judgment of reformation. Ind. 346; Henkle v. Margeruni, 50 Id. 2 See Bruck v. Tucker, 42 Cal. 346, 240. 352, per Wallace J. " It must be con- * N. Y. Central Ins. Co. r. Nat. Pro- sidered as settled |in California] that, in tection Ins. Co., 14 N. Y. 85; 20 Barb. interposing such a defence, the defendant 408. This case was peculiar. The de- becomes an Hc^o/-, and the defence inter- fence established was not averred, but the posed a pleading inequity, the sufficiency answer was merely a denial, saying, of wiiicii, in matter of substance, thougli "They deny tiiat they made, and ex- not in point of mere form, is to be deter- ecuted a policy of insurance, or delivered mined by tiie application of the rules of the same to the plaintiff, as stated in the pleading observed in courts of equity in said complaint." On the trial the evi- cases of like character." Cites, as deci- dence establishing the defence stated in sive of this rule, Estrada »•. Murphy, 19 the text was admitted without objection; Cal. 272 ; Lestrade v. Bartli, 19 Cal. 660; and the Court of Appeals lield that how- Weber r. Marshall, 10 Cal. 447; Blum v. ever improper under the answer if ob- Ilobinson, 24 Cal. 127; Downer?-. Smith, jected to, as tlie plaintiff had failed to 24 Cal. 114. See Hughes o. Davis, 40 object, it could not raise tlie objection in Cal. 117; Argnello v. Edinger, 10 Cal. the Appehate Court. The result was 150 ; Clark v. Iluber, 25 Cal. 593, 597. that a defence conceded to be purely AFFIRMATIVE RELIEF TO THE DEFENDANT. 119 Here, also, no affirmative relief was granted ; nor could any have been given except cancellation of the policy, which would cer- tainly have been entirely useless. The assignee of a lease bring- ing an action for the rent, the defendant averred that the assignment to the plaintiff, although absolute in form, was in fact given as collateral security for the payment of a note, that the note had been paid, and that the interest of the plaintiff had thereby ended. This defence was sustained, and here, also, no affirmative relief could have been essential to the defendant's security or protection under any circumstances ; the judgment in his favor was a bar to all possible further action on tlie lease by the plaintiff or his assigns.^ In all the foregoing instances the single equitable defence has been spoken of as though it stood alone, unconnected with any others. An equitable defence, how- ever, may be joined with any other defences, legal or equitable, which may possibly arise in the action. In many of the cases referred to in the text and cited in the notes, other defences were spread uj^on the record. Thus, in the action upon a policy of insurance, any of the customary legal defences of misrepresenta- tions, breach of warranties, non-compliance with provisions of the policy in regard to proofs, and the like, might have been pleaded and proved in connection with the equitable defence which was interposed.^ § 97. The remaining question to be considered is. When will affirmative equitable relief be granted to the defendant upon the fects which he alleges in his answer as constituting an equitable bar to the plaintiff's recovery ? The New York Court of Appeals, in an early case, expressly held that in an action upon a covenant against incumbrances in a deed of lands, brought to recover dam- ages for a breach thereof by means of an outstanding mortgage, the defendant may show, by way of equitable defence in bar, a mistake in the deed by which an exception of that very mort- gage was omitted from the covenant, but that he could not have, in that action and upon an answer setting up all these facts, the affirmative relief of reformation. The case was decided, and the equitable was proved under a denial only. ^ See Bennett v. Titherington, 6 Bush, See observations of Denio J. quoted in 192 ; Dorsey v. Reese, 14 B. Mon. 157 ; note to § 70. Smith v. Moberley, 15 B. Mon. 70, 1 Despard v. "Walbridsje, 15 N. Y. 374, 73 ; Bosley v. Mattingley, 14 B. Mon. 878 ; Struman v. Robb, 37 Iowa, 311, 313 ; 89, 91. Hablitgel v. Latham, 35 ib. 550. 120 CIVIL KEMEDIES. judgment sustained, expressly upon this distinction.^ This deci- sion, however, cannot be regarded as correct in tlie light of other subsequent adjudications made by the same court and referred to in the foregoing paragraphs. Affirmative relief may certainly be given to the defendant upon his answer in all cases where, from the nature of tlie subject-matter and from the relations ol the parties, a specific remedy in his favor is possible according to the doctrines of equity jurisprudence, certainly in all cases where the answer can be considered as setting up a counter-claim. There are undoubtedly instances in which no such relief is pos- sible.2 Where, however, the nature of the subject-matter and of the relations between himself and the plaintiff are such that he could have maintained an independent suit in equity against the plaintiff and procured specific relief thereby, or could have filed a cross-bill under tlie old practice, he may now obtain the same remedy upon his answer, at all events, as was before remarked, if the demand alleged in the answer constitutes a valid counter- claim. This is undoubtedly the general rule. In a very few States, however, cross-complaints or petitions are expressly recog- nized by the codes in addition to counter-claims ; and the rule in those States may be that, if the demand for equitable relief do not constitute a proper counter-claim, it must be made in a cross- complaint or cross-petition, and not in an answer. Subsequently to the decision of Haire v. Baker,^ in New York, the Court of Appeals held, by way of dictum in Dobson v. Pearce,* that the defendant mai/ obtain affirmative relief upon the answer which he pleads to the plaintiff's cause of action. Finally, the doctrine was expressly established as the basis of the decision. In an action to recover possession of land, where the plaintiff held his title by a slieriff's deed given upon a sale under execution against the original owner, the defendant not only defeated the recovery by proving a mistake in the sheriff's deed, but obtained a judg- ment reforming that deed by correcting the mistake.^ While in 1 Haire v. Eaker, 5 N. Y. 357 (1851). assignmont, because lie liad no interest in 2 The case of Despard v. Walbritlge, or power over the instrument in question ; cited supra, seems to be such a one. much less could he have obtained any Tlie defendant had a riglit to prevent relief against the lease. His right was a recovery against himself by one who purely dtjhisice. had no interest in the lease ; but he » Haire v. Baker, 5 N. Y. 357. certainly could not have enforced a re- * Dobson v. Pearce, VI N. Y. 15G, 1G5, assignment of the lease from the plaintiff per Allen J. to hia assignor, nor a cancellation of that ^ Bartlett v. Judd, 21 N. Y. 200, 203. AFFIRMATIVE RELIEF TO THE DEFENDANT, 121 some States the answer may be turned into a cross-petition, and affirmative relief obtained,^ yet this proceeding does not seem to be necessary, even in those States where the practice provides for such cross-petition or cross-comphiint ; the defendant may have the proper affirmative relief to which he is entitled upon his answer.^ In Missouri, however, it would seem that affirmative equitable relief can never be granted to the defendant upon his mere answer.^ In extreme contrast with this position is the doctrine, already discussed, which refuses to the defendant the benefit of an equitable defence as a bar to a legal cause of action, unless the facts relied upon are such that he would be awarded an affirmative remedy if he elected to demand a judgment con- ferring it.* The general subject of affirmative relief to defend- ants will be treated more at large in the subsequent sections upon " Counter-claim " and " Union of Defences in One Answer." On the trial tlie complaint was dismissed, but the remedy of reformation was denied. The General Term, on appeal, modified this judgment by granting the additional relief of reformation. This latter ruling was affirmed by the Court of Appeals. Bacon J., after stating the relief which would have been granted in equity under the former system, added : " But this resort is no longer necessary, since by our present system an equitable defence may be interposed as well in an action of eject- ment as in any other form of proceeding, and the defendant may also claim in the same action an}'^ affirmative relief to which he shows himself to be entitled." 1 Massie v. Stradford, 17 Ohio St. 596. This was an action for trespass to lands. The defendant, in an answer by way of cross-petition, set up an equitable title to the premises in question, and prayed for a decree establishing the legal title in liimself, and an injunction against the plaintiff's further prosecution of the ac- tion at law. Hablitgel v. Latham, 35 Iowa, 550 ; Hammond v. Perry, 38 ib. 217. ■- Klonne v. Bradstreet, 7 Ohio St. 322. Defendant can have no affirmative relief upon an answer by way of defence merely ; it must be demanded by a cross-com- plaint, or by a counter-claim. Earle v. Hale, 31 Ark. 473 ; Tucker i-. McCoy, 3 Col. 284 ; Abbott v. Monti, 3 Id. 561 ; Monti V. Bishop, 3 Id. 605; Sisty v. Bebee, 4 Id. 502 ; Mills v. Buttrick, 4 Id. 53, 123; Nippel v. Hammond, 4 Id. 211 ; Reed v. Newton, 22 Minn. 541 ; Quebec Bank v. Weyand, 30 Ohio St. 126 ; Doug- las V. Haberstro, 25 Hun, 262. Relief on a cross-complaint or cross petition. Marr v. Lewis, 31 Ark. 203 ; Abbott v. Monti, 3 Col. 661 ; Hatcher i-. Briggs, 6 Oreg. 31 ; Kellogg v. Aherin, 48 Iowa, 299. 3 Harris v. Vinyard, 42 Mo. 568. This was an action to recover lands. The de- fendant set up a contract of purchase from the plaintiff 's deceased fatlier, pay- ment of the purchase price, and prayed a specific performance. This judgment was rendered by the court at the trial, and certainly there could be no simpler nor stronger case for equitable relief to the defendant than that of the vendee of land who is in possession and has paid the pur- chase price. The Supreme Court, how- ever, while sustaining the defence as a bar, refused any affirmative remedy. See State V. Meagher, 44 Mo. 356. * See supra, § 91. 122 CIVIL REMEDIES. SECTION FIFTH. A LEGAL REMEDY OBTAINED UPON AN EQUITABLE OWNERSHIP OR EQUITABLE PRIMARY RIGHT. § 98. A special case, arising from the general union of legal and e(iuitable forms produced by the new system, requires a par- ticular examination. It may be properly presented under the form of the question whether the holder or possessor of a purely equitable primary right, or the owner of a purely equitable estate or interest, can maintain an action to recover a remedy which, before the change in procedure, was purely legal ; or, to express the same thought in terms not entirely accurate, but which are, nevertheless, in constant use, whether such holder of a purely equitable primary right, or owner of a purely equitable estate or interest, can maintain upon it an action at law to recover an ordinary legal judgment, either for possession or for damages ; to put the same question in a concrete form by limiting it to a particular class of rights and remedies, whether the owner of an equitable estate in land can maintain an action analogous to ejectment ? The action of ejectment was originally invented to enable a tenant for years to recover possession of the demised premises during the term, the ancient real action being confined to freehold estates. It was, during its existence and use as a strict common-law instrument, a possessory action ; and a judgment ren- dered in it never determined the question of title. Its use in try- ing titles was wholly a matter of convenience : no rule of the common law made it a means of settling a disputed controversy as to title. Nothing but the voluntary acquiescence of the de- feated party enabled it to produce even the semblance of such a result. Action after action might be brought, and the common law placed no obstacle in the way of such a succession of attacks. Equity alone devised the cumbrous method of an injunction suit to restrain the further prosecution, and to quiet the title of the party who had succeeded in several trials at law. Since the com- mon law paid the most rigid adherence to extei'nal forms, it is true that the action of ejectment, until changed by statute, was never used except for the recovery of demised premises ; and tliis form was preserved in the absurd fiction of making John Doe, as tenant of the real claimant, the plaintiff on tlie record. As the estate THE ACTION OF EJECTMENT. 123 for years, to protect which the action was originally invented, was a legal estate, the rule grew up, and was followed without exception, and from the very necessities of its form, that the ac- tion of ejectment could only be employed as a means of recovering possession of a legal estate. The common law undoubtedly knew no such thing as ejectment by the owner of an equitable estate, or the holder of an equitable title ; such estate or title could only be protected by a court of equity. § 99. This rule, however, was always a matter of mere external form ; it was one of the formal incidents of the action, as arbi- trary and technical as the fiction of the plaintiff's being a lessee. When the statute abolished all the distinctions between actions at law and suits in equity and between the forms of such actions, one might naturally have supposed that the formal rule thus described would have been at once abandoned. On the contrary, the courts of certain States, in which the new procedure has been adopted, continue to speak of actions of ejectment as though they were existing and fully recognized judicial instruments, with all their ancient and arbitrary incidents and requirements ; as though, in fact, there had been no great change sweeping away the very foundations of the ancient system. It is true, this reform legis- lation has not altered an}- primary rights nor final remedies ; an equitable right or estate is not turned into a legal right or estate ; and the remedies of pecuniary compensation and of possession of lands or chattels which were called legal because they could only be obtained by actions at law, and the other specific kinds of re- lief which were called equitable because they could only be ob- tained by suits in equity, are left unaffected. One great change, however, has taken place which some courts seem at times to have forgotten ; all these remedies are now to be obtained by a single civil action, which it is neither appropriate to call legal nor equitable, because the distinctions between legal and equi- table actions have been destroyed. It may be well enough, in order to avoid circumlocution, to describe one class of remedies as legal and another as equitable, if it be constantly remembered that this nomenclature no longer depends upon the kind of action used in the pursuit of these remedies, and that they are all pur- sued and obtained by means of one action which has no distinc- tive and peculiar features depending upon the species of remedy granted through its instrumentality. 124 CIVIL REMEDIES. § 100. Assuming these elementary doctrines of the new system of procedure, I am enabled, by applying them, to answer the pro- posed question upon principle ; I shall then compare the results thus obtained with the rules laid down by judicial decision. It must be conceded at the outset that every primar}' right, whether legal or equitable, when invaded, should have a remedj' or reme- dies appropriate to its nature and extent. When the right is possessory, there should be a remedy which restores possession ; when the right involves the ownership or title, there should be a remedy which establishes the ownership or title, or which restores the owner to his full dominion by removing obstructions to or clouds upon his title. The law gives these classes of remedies ; and the confusion into which some of the courts have fallen in reference to this subject results from a failure to distinguish be- tween these two kinds of primary rights, and the two correspond- ing kinds of remedies ; from an utter confounding of possessory rights with rights of ownership, and possessory remedies with remedies going to the ownership. Now, it cannot be doubted that where the question is concerning ownership, where the primary right invaded is one of ownership or title, and the remedy sought is correlative thereto, the equitable right must have an equitable remedy. If a person is clothed with an equitable title or owner- ship, from the very nature of the case his remedy must be equi- table, because the positive relief which he needs in almost all cases is the conversion of this equitable ownership or title into a legal one, which can only be done by a remedy within the competency of equity tribunals, — by a specific performance, a reformation, a re-execution, a cancellation, and the like. The only exception to the kind of relief described — the turning the equitable title into a legal one — is the remedy of injunc- tion, which is often necessary, and which does not change the nature of the title, but leaves it as it was. When, therefore, the object of the action and of the remedy demanded relates to ownership or title, unquestionably the equitable title must be judicially protected and aided by a remedy that is purely equi- table, and cannot be thus protected and aided by a remedy which is in form legal. § 101. This, however, is not true wlien the right is possessory, and the remedy demanded is a mere transfer or restoration of possession. There are equitable primary rights, titles, and THE ACTION OF EJECTMENT. 125 ownerships which entitle the holder thereof to the undisturbed possession of the land which is the subject-matter of the right or title. This proposition cannot be denied. A large part of the remedies once given by the Court of Chancery alone, and the whole range of equitable defences now allowed in legal actions, are based upon the conception that the equitable owner is entitled to possession as a part of his right. To deny this is to turn many of the familiar rules of the law into absurdity, and to render much of the relief given by the courts self-contradictory. AVhen the vendor under a land contract sues the vendee in possession to recover the premises, and the latter interposes his equitable right as a defence, and succeeds in defeating the action brought against him, that success is entirely due to the fact that he is entitled to the possession by virtue of his equitable title. Now, what the law permits to be done defensively , for the same reason, and by the application of the same principle, it should permit to be done affirmatively. There is no distinction in principle be- tween the two cases. It is simply absurd to say that a person in possession under an equitable title may defend and be kept in his possession by exhibiting that title in a legal action, but that, if he is out of possession, he shall not be allowed to recover his rightful possession by exhibiting his title in the same kind of action. In fact, when the courts, with almost perfect unanimity, decided that the equitable owner may rely on his title as an abso- lute bar — a merely negative defence — to the so-called action of ejectment brought against him, they decided in princij)le that he may obtain possession in the like action. Whenever, therefore, a person clothed with an equitable title or ownership which by its nature entitles him to the immediate possession of the land as against the party actually in possession, and he desires simply to obtain the possession, there is nothing in principle which can forbid him to maintain an action for that purpose, and recover the possession. To call such an action "legal" is no answer; for the rule which forbade an equitable right or title to be en- forced or even recognized in a court of law was a mere arbitrary matter of form, and has been expressly abolished. To call the action " ejectment " is no answer, because there is no such action, and all the technical rules which prevailed in respect to it at the common law have been swept away by the legislative command. The courts which now speak of "ejectment" as an existing 126 CIVIL REMEDIES. species of action, and which apply its rules to an action now brought to recover possession of land, are so far disregarding the express terms of the statute and thwarting its plainest design. It is true that all equitable ownerships and titles do not carry with them the right of immediate possession of the land, and this argument is carefully limited to those which do involve this element in their proper nature. It might seldom happen that the equitable owner would be satisfied with a mere possessory remedy, but there are circumstances and situations in which, and parties against whom, such remedy may be very important, and may per- haps be the only one practicable. To illustrate by the most familiar and plain example, that of a vendee under a contract to convey land. Assume such an agreement completely fulfilled by the vendee. He is the equitable owner, and entitled to possession as against the vendor, and therefore as against all the world. Beyond a doubt as against the vendor, this equitable owner would prefer to bring an action to obtain a specific performance, and thus at one blow to consummate his title and remove all obstacles to the full enjoyment of his ownership ; but if he chooses to ask for a part instead of the whole, upon what grounds of prin- ciple, upon what reasons of polic}", shall the courts refuse to award him the possession by compelling the vendor, who wrong- fully withholds, to surrender it up ? To say that the vendor has the legal title is no answer, and is a mere arguing in a circle, because the action and the remedy do not concern the title, and by the conceded rules of the law his legal title does not enable the vendor to retain possession from the vendee. If, however, a third person without color of right, and not the vendor, with- holds the possession, the reasons in favor of the vendee's main- taining the action are still stronger. Is it answered that in ejectment the defendant may succeed by proving legal title out of the plaintiff, because the plaintiff must recover upon the strength of his own title, and not upon the weakness of the de- fendant's? This, again, is a mere formula of words without any real meaning. There is no action of ejectment. The action sup- posed to have been brought is simply one to recover the possession to which the plaintiff is entitled from a defendant who has no right or color thereof ; and at best the rule invoked is the arbi- trary result of external and teclmical forms clustered about the common-law action, all of which have been swept out of existence ACTION FOE POSSESSION BY AN EQUITABLE OWNER. 127 with the action itself. Unless, therefore, it is established that the common-law form of action called " ejectment," with all of its incidents, still remains in full force and effect, notwithstanding the peremptory provisions of the statute which have in terms abrogated them, I have demonstrated that there is no reason or ground in principle for refusing to permit the owner of an equi- table estate, which entitles him to immediate {possession, to main- tain an action for the purpose of recovering that possession. We may call the action legal or equitable, and it makes no difference. The sum of the whole matter is, a person is clothed with a right over land which by its essential nature confers upon him the right of immediate possession ; he should be, and on principle is, permitted to enforce that right and obtain possession, if that remedy is all he demands, even though he might, if he chose, avail himself of a higher and more efficient remedy. The same course of argument applies with equal force to rights over chat- tels as well as over lands, Mherever there can be an equitable ownership of chattels. § 102. I have now to compare the result of a discussion of the question upon principle with the doctrine which is established upon the authority of decisions thus far made ; and I concede at the outset that in numbers the judicial decisions are decidedly opposed to my conclusions. In accordance with its general theory, that a distinction between legal and equitable actions is still pre- served, the Supreme Court of Missouri has held, in a long series of cases, that the owner of an equitable title can under no circum- stances obtain legal relief, but shall be driven to two actions, — the first to turn the legal into an equitable estate, and the second to obtain possession.^ The same doctrine has been established in Wisconsin, and has been extended to waste, on the ground that the actions of ejectment and waste must be brought by one having the legal ownership, and that he must recover on the strength of his own title.2 It would seem that the same rule had been adopted 1 Reed v. Robertson, 45 Mo. 580, and resort to a suit in equity to compel a per- cases cited in the note to § 79. See, iiow- formance of his trust by the defendant. ever, Henderson v. Dickey, 50 Mo. IGi. The other case cited shows that tlie In Reed v. Robertson the defendant was a court of Missouri has modified its views trustee, and held the legal title in trust to in relation to relief of possession accom- convey the same to the plaintiff. It was panying other specific equitable relief, but adjudged that the plaintiff could not goes no farther. See supra, § 79, n. maintain a simple action for possession, — - Eaton v. Smith, 19 Wis. 537 ; Gillett called by the court ejectment, — but must v. Treganza, 13 Wis. 472, 475. The lat- 128 CIVIL REMEDIES. in Indiana, although this is by no means certain. A series of cases have hekl that a phiintiff, alleging a legal ownership and rio-ht of possession, cannot recover upon proof of an equitable ownership ; that an action to recover possession of lands, where the pleading contains such averments, is analogous to the com- mon-law ejectment, and the plaintiff " must recover on a legal title, and not on an equitable title." ^ In California, the doctrine is established in the most general form, that the holder of an equitable title cannot maintain an action to recover the possession, because, in the language of the courts, " in ejectment the legal title must prevail ; " ^ and a like rule seems to prevail in lowa.^ § 103. In New York there is a conflict of opinion, as shown by the reported cases. The Supreme Court has held, in accordance ter case was an action to recover posses- sion and damages for waste, the com- plaint disclosing an equitable title in the plaintiff. Dixon C. J. said: "The ac- tions of ejectment and waste, being legal remedies, must be brouglit by the person legally interested in tlie property, and can- not be maintained by a cestui que trust, or other party having only an equitable in- terest." Citing 1 Chitty's Pleading, 60, 289, 290. One might have supposed tliat the code of procedure had somewhat less- ened the authority of Chitty's Pleadings in regard to the forms of actions in that State. 1 Groves v. Marks, 32 Ind. 319 ; Rowe V. Beckett, 30 Ind. 154 ; Steliman v. CruU, 2G Ind. 430. In Groves v. Marks the ac- tion was called ejectment. The com- plaint alleged that the plaintiff was owner in fee-simjjle, and entitled to possession. On the trial it appeared that the plaintiff was a vendee under a land contract. Gregory J. said (p. 320) : " It is claimed that the plaintiff could recover in this form of action on an equitable title. We gave the question a careful consideration in Rowe v. Bennett ; and the conclusion there arrived at is perfectly satisfactory to our minds. In an action under the code for the recovery of real property on a complaint averring the Ifcjal right of the plaintiff to the possession, he must recover on a legal and not on an equitable title." Rowe V. Bennett presented exactly the same facts, and the court placed the deci- sion upon exactly the same grounds. Steli- man V. CruU was also a case of the same nature, and the court said : " The action to recover possession of real property under the code, where the complaint is on the legal title, takes the place of the old ac- tion of ejectment ; and the plaintiff must show a legal title to the posse.^sion before he can recover." The case was there put on the ground that there was a complete failure of proof, and not a mere variance. These decisions do not establisli a doc- trine necessarily opposed to that which is advocated on principle in the text ; they do not pass upon the effect of an action in which the complaint discloses an equi- table title, and demands possession. - Emeric v. Penniman, 26 Cal. 119, 124 ; Clark v. Lockwood, 21 Cal. 222. See Hartley v. Brown, 40 Cal. 201 ; Buhne V. Chism, 48 Cal. 407, 472 ; also Morton V. Green, 2 Xeb. 441. 3 Walker v. Kynett, 32 Iowa, 524, 526, per Beck J. : " It cannot be claimed that, in an action at law, lands may be recov- ered against one holding the legal title, on the ground that his title is based on fraud. One holding such a title may suc- cessfully plead it against the equitable claim of another attempted to be enforced at law. In order to defeat a fraudulent title, it must be attacked in cliancery, and in that forum declared void. A person holding the equitable title, in order to re- cover, must cause the adverse legal title to be declared void." But see Brown v. Freed, 43 Ind. 253, 254-267. ACTION FOR POSSESSION BY AN EQUITABLE OWNER. 129 with the doctrine laid down in Missouri, Wisconsin, and CaHfor- nia, tliat the holder of an equitable title cannot recover possession, even against a mere intruder, but that he must first procure his equitable to be changed into a legal ownership by the judgment rendered in an equity action, and thus put himself in a condi- tion to maintain ejectment. ^ The Court of Appeals in New York has reached a conclusion directly the contrary in a case where the facts and the form of the proceeding made the decision necessary and final. The ruling was, therefore, not a dictum^ but was tlie Yevy ratio decidendi, and involved Si principle which fully sustains the reasoning and doctrine of the text, although the case did not in form present the naked question under discussion. A plaintiff avIio had only an equitable title was permitted to recover a judgment for possession, based upon a verdict, where no other relief was granted, against a defendant who held the legal title under a deed regular on its face. This decision goes to the full length of the doctrine which I have advocated ; for, although the complaint demanded the specific equitable relief of cancellation and reconveyance as well as possession, yet on the trial, which was had before a jur}', and was conducted in all respects like the trial of a legal action, these demands for relief were entirely ignored ; the single question of the plaintiff 's right to possession was submitted to the jury, and upon tlieir verdict a judgment for possession was rendered, which was affirmed by the tribunal of last resort.^ In Kansas, under an express provision of the code, the holder of an equitable title may maintain an action to recover possession of the land. ^ 1 Peck V. Newton, 46 Barb. 173. The the possession. The court refused this plaintiff 's title was equitable, in substance request, and instructed the jury that the that of a vendee. The defendant, so far as plaintiff could recover in this action if tlie case shows, was without color of right, the facts averred by him were found to The complaint merely demanded posses- be true. Although the Court of Appeals sion. See opinion of Parker J. in note does not in its opinion discuss the ques- to § 68. tion in the form now presented by me in - Phillips V. Gorham, 17 N. Y. 270. the text, its decision, as it seems to nie, The complaint alleged the equitable title necessarily involves that question, and in the plaintiff. The question was pre- answers it in the most explicit manner, scnted in the sharpest manner on the If the complaint had not contained tiie trial by the requests maile on the part of prayer for equitable relief, which was dis- the defendant and by the charge of the regarded, the question would have been court. The defendant asked the court to the same in form with that under consid- charge that the plaintiff was not entitled eration. Also, Murray v. Blackledge, 71 to a verdict, that he should have procured N. C. 492. a judgment declaring the defendant's ^ Kansas Pac. R. R. r. McBratney, 12 deed void, and then brought an action for Kan. 9. 130 CmL KEMEDIES. § 104. There is another class of actions which have been admitted by some courts as a consequence of the reform legisla- tion, which could not have been maintained prior to the change. It was a familiar doctrine that one partner could not maintain an action at law against a copartner to recover any sum which was a portion of the firm assets, or to recover any sum claimed to be due by virtue of their common partnership dealing or joint undertak- ings, unless there had been prior to tlie suit an account stated and a balance agreed upon between them, or unless the defendant had expressly promised to pay the sum sought to be recovered. In other words, the plaintiff in his declaration was obliged to aver either the accounting together and the balance struck, or the express promise. If he did not, he would be either nonsuited at the trial or his pleading would be held insufficient on demurrer. If there had been no such account stated or express promise, his only remedy was by an action in equity for an accounting ; and, hav- ing obtained jurisdiction of the matter, the Court of Chancery would decree payment of the amount due. This doctrine is too familiar to require the citation of authorities in its support. The Supreme Court of Indiana has held that this rule is abrogated by the code of procedure, and that a partner may maintain an action to recover a sum due from his copartner, by reason of their joint business, without averring or proving any settlement or exjDress promise.^ The same doctrine has been ajDplied in Mis- souri to owners in common generallj^ who are not partners.^ The old rule is retained, however, in most of the States ; and an action by a partner to recover a sum of money from his copartner, alleged to have become due by reason of their joint undertakings, is not permitted, unless based upon a mutual settlement or an express promise. It is so held in California,^ and in New York,^ and in other States;^ and this is bevond doubt the correct inter- 1 Ileavilon v. Heavilon, 29 Ind. 509 ; v. Carlisle, 2 Cal. 420 ; Stone v. Fouse, 3 Shalter w. Caldwell, 27 Ind. 376; Duck Cal. 292; Barnstead v. Empire Mining V. Abbott, 24 Ind. 349. Tlie last case is Co., 5 Cal. 299; Ross v. Cornell, 45 Cal. directly in point ; for the complaint alleged 133 ; Pico v. Cuyas, 47 Cal. 174, 179. tlie partnership, and souglit to recover the * Emery v. Pease, 20 N. Y. 02. plaintiff's share in tlie jiroceeds. See ^ Wood i'. CuUen, 13 j\linn. 394,397; also Jeinison y. Walsh, 30 Ind. 107. But Lower y. Denton, 9 Wis. 208; Sliields v. /*«• corf^ra, Briggs v. Daugherty, 48 Ind. Fuller, 4 Wis. 102; Smith v. Smith, 33 247, 249, seems to abandon this position. Mo. 557 ; M'Knight r. M'Cutchen, 27 Mo. - Rogers i: Peniiiston. IG .Mo. 4;!2, 435. 430 ; Springer v. Cabell, 10 Mo. G40. But 8 Russell f Byron, 2 Cal. 80 ; Buckley see, for examples where an action may be ACTION BETAVEEN PAHTNERS. 131 pretation of the codes. The contrast between this case and the one previously discussed is plain ; and an analysis of these con- trasting features will do much toward elucidating the general principles which regulate the union of legal and equitable actions and remedies. When a person has an equitable ownership of land of a kind which entitles him to immediate possession, his remedial right to possession is in exact conformity with his primary right of ownership. The denial of this remedy of simple possession under the former system was based solely upon technical and arbitraiy notions incidental to the mere external forms of actions and modes of adjudication which prevailed in the two classes of courts ; and when these external forms, with their incidents, were removed, a way was opened for redressing the primary equitable right in a manner exactly conforming with its own nature and extent ; that is, a primary equitable right or interest calling for possession can be redressed by granting possession. In other words, the ancient rule denying to an equitable owner the rem- ed}^ of bare possession in the cases described was one of the "distinctions" and "forms" in express terms abolished by the legislature in enacting the new procedure. Courts which continue the denial because " ejectment could not be brought by a holder of an equitable title," or because " the legal title must prevail," overlook the real nature both of the right to be redressed and of the remedy to be conferred, and pay a regard only to the techni- cal notions of form which hampered the common-law courts in all their movements, and which became at last so grievous a restraint upon the administration of justice that the legislature was compelled to intervene. In the other case, however, the reasons of the rule were very different, and were founded upon the nature of the primary right itself, and not upon any formal inci- dents of the judicial proceeding by which it was redressed. A partner is not suffered to maintain the action in question because his primary right, flowing from the fact of partnership, is not of such a nature as to call for a remedy of that kind ; that is, a judgment for the payment of a certain sum. The right to the recovery of a certain sum of money, unless arising from tort, must, according to the common-law, be based upon a promise express or implied. It does not affect this principle to say that mnintained, Wliitehill v. Shickle, 43 Mo. Kiissell v. Grimes, 46 Mo. 410; Buckner 537 ; Seaman ?;. Johnson, 46 Mo. Ill ; v. Ries, 34 Mo. 357. 132 CIVIL REMEDIES. the common-law doctrine of implied promises was itself largely founded upon a fiction. Granting this to be true, as it undoubt- edly was, still the theory was firml}- established that the liability spoken of arose either from an express promise or from acts, events, or relations which created a duty to pay, and which duty the law conceived of as springing from an implied promise. If we discard the notion of an implied promise, therefore, as ficti- tious, tliere must still be a relation existing between the parties, from wliich the dut}' takes its origin; and without the existence of such a relation there was no duty on the one side, and no primary right on the other. Now, it was an elementary doctrine of the law pertaining to partnership that, resulting from their mutual dealings with their joint assets, no promise is ever implied that one partner shall pay to the other any definite sum as the amount due from the proceeds of the undertaking, or as his share of the joint assets. No promise is ever implied from the existence of this relation, from the mere fact of there being a joint busi- ness, joint profits, or joint property. Or, to express the same doctrine without the use of fictitious terms, from the relation of partnership and the joint undertakings and assets thereof, the law imposed no duty upon one partner to pay to the other any definite sum in respect of his share therein, and gave no corre- sponding primar}- right to that other to demand such payment. If, however, there has been an accounting, so that a balance in favor of one is ascertained, a promise is implied on the part of the other — or a duty arises on his part — to pay that sum. The right to maintain the action by one partner against another, and to recover a definite sum, depended therefore, and still depends, not upon anything connected with the form of the action, or upon the distinctions between legal and equitable actions, but upon the very nature of the primary right. Those courts which have held that, under the new procedure, a partner may recover a definite sum from a copartner without an accounting and without an express promise, have in effect decided that the new procedure has materially changed the primary rights of parties, has, in tliis instance, created a primary right which did not before exist at all, which is a conclusion in direct antagonism with the plainest and best-settled principles of interpretation. In fact, this primary riglit of a partner against his fellow has not been modified by the reform in the modes of procedure ; and under the new system, as ACTION BETWEEN PARTNERS. 133 under the old, there should be no recovery of a definite sum in any action, unless the facts which create the primary right have occurred, — unless there has been or is an accounting and balance ascertained, or an express promise to pay the sum. It is not the case of an equitable primary right being supported by a legal remedy, because the equitable primary right of the partner does not involve the payment of a certain sum ; its only remcdj^ is an accounting, and this is preserved in full force and effect. The analysis above given may not be very important in itself; but it will aid in distinguishing primary from remedial rights, and the substances of rights which have not been changed from the formal incidents which have been abolished ; it will enable us to deter- mine the exact limits of the modifications made by the reform legislation. § 105. A few instances of other actions will bring this inquiry to an end. ^ It has been held in Nevada that a person claiming to be tenant in common with others of land may maintain an action for partition, whether his title be legal or equitable. "^ On the other hand, the Supreme Court of IMissouii has decided that the owner of chattels by an equitable title cannot recover dam- ages for their conversion in an action analogous to trover. ^ § 106. I have thus dwelt at length upon the particular case of combining legal and equitable rights and remedies which forms the subject of the present section, because more tlian any other it involves and expresses the true intent and design of the new system ; it is the crucial test of the manner in which the spirit of the reform is accepted by the courts. Probably nothing con- nected with the practical administration of justice could be more startling to the lawyer of the old school than the suggestion that the owner of a purely equitable estate in lands should be able to bring an action of ejectment to recover possession of the premises ; it would be opposed to all his conceptions of law and of equity and of the uses of actions and courts. And yet these conceptions were plainly artificial and arbitrar}-, and the familiar rules as to the employment of actions as plainly had no foundation in the nature of things, but rested upon words alone. The final object 1 That an action brought to recover a 2 Crosier v. McLaughlin, 1 Nev. 848. money jurloment alone may be equitable * Walker's Adm'rs v. Walker, 25 Mo. and based upon purely e([uitable rights, 367. S. P. Johannesson v. Borschenius, see Rindge v. Baker, 57 N. Y. 209, 219. 35 Wis. 131, 134. 134 CIVIL REMEDIES. of the reformed American system was to sweep away all of these technicalities, and to allow every primary right to be maintained and ever}' remedial right enforced in the same manner and by a single judicial instrument, untrammelled by tlie restrictions and limitations which made the practical administration of justice in England and in the United States seem so absurd to the cultivated jurists of Europe. That the numerical weight of authority is at present opposed to my views in relation to the particular matter in question, I fully concede. I believe, however, that in time the influence of an education in the technicalities of the common- law system will cease to be felt on the bench and among the members of the bar, and that the practical rules of procedure in all the States will be brought into a perfect harmony with the letter and the spirit of the reformatory legislation. SECTION SIXTH. THE NATURE OF CIVIL ACTIONS AND THE ESSENTIAL DIFFER- ENCES BETWEEN TIIEM. § 107. Notwithstanding the sweeping language of the codes and practice acts, which abolishes all distinctions between the forms of actions heretofore existing, many judges, in construing the provisions, have declared in most emphatic terms that the change is confined to the external forms alone of actions at law, and that in their essential features certain distinctions and pe- culiar elements remain which cannot be removed by legislation. This statement is to a certain extent true, if it be confined to what is really the substance of each action, and is not extended so as to include many incidents which, although appearing to be substantial, are really the results of arbitrar}' conceptions relating to the form ; for example, the old rule discussed in the preceding section, which confined the action of ejectment to the recovery of possession of lands in which the plaintiff had a legal estate. If this doctrine, however, is carefully examined, and the examples and authorities in its support are closely analyzed, it will be found that all the unchangeable features and elements which are said to inhere in different actions, and which cannot be reduced to an identity, pertain to the primary rights sought to be maintained ESSENTIAL DIFFERENCES BETWEEN ACTIONS. 135 bj their means, to the delicts or wrongs by which these rights are invaded, to the remedial rights which thereupon accrue to the injured party, and to the remedies themselves which are the final objects of the judicial proceeding. These features and elements in actions are indeed different, and the difference between them the new system does not propose to abolish nor change. Tlie doctrine itself is, therefore, no more than the statement in another form of the conceded fact that the reformed procedure has not affected the primary rights or the remedies which the municipal law creates and confers. § 108. As all actions are brought to maintain some primary right invaded b}' a wrong, and as they result in some one of the many kind of remedies prescribed by the law, and as in each action the facts from which the primary right arises, and the facts which constitute the wrong, must be stated, and as the plaintiff must demand and seek to obtain some remedy appropri- ate to the right and the delict, it follows, as a necessary conse- quence, that the actions, although constructed and carried on according to the one uniform principle of alleging the facts as the}^ actually are and praying for the relief legally proper, must differ in their substance, because the rights, the delicts, and the remedies differ. This necessar}- feature of civil actions under the codes has been dwelt upon and explained in numerous cases, some of which are cited in the note.^ This doctrine was very 1 Goulet ?'. Asseler, 22 N. Y. 225, 227, could have been maintained, either against 228, per Sliehlon J. ; Ekh'idge v. Adams, the officer or tlie plaintifi' in the execu- 54 Barb. 417, 410, per James J. ; Ilord v. tion under the circumstances here dis- Chandler, 13 B. Mon. 403 ; Hill i: Barrett, closed. If any action would have lain 14 B. Mon. 83, 85, ])er MarshallJ. ; Payne before the code, it could only have been V. Treadwell, 16 Cal. 220, 243, per Field an action founded on the special circum- C. J. ; Lubert v. Chauviteau, 3 Cal. 458, stances of the case, setting forth the in- 462, per Wells J.; Jones v. Steamship jury to the contingent interest of the plain- Cortes, 17 Cal. 487, 497, per Cope J.; tiff in the i)roperty, and claiming damages Sampson ik Shaeffer, ?> Cal. 196, 20-5, per for such injury. He states that in " tres- Wells J. ; Miller v. Van Tassel, 24 Cal. pass " or " trover " a plaintiff must show 458. 463, per Khodes J. ; Richmond, &c. that he had either the actual possession T. Co. V. Rogers, 7 Bush, 532, 535; How- or the right to the possession at the time land V. Needham, 10 Wis. 495. One of of the alleged taking or conversion, and the most elaborate of these judicial dicta in such case the value of the property is that of Mr. Justice Selden in Goulet v. was the measure of damages; while in Asseler; and, although I dissent from his the "action on the case " he must prove conclusions as a whole, I quote it in his damages, and could recover only what full as an able exposition of a certain he had actually sustained, and proceeds class of opinions. He says (p. 227) : "It (p. 228):" Although the code has abolished can hardly be claimed that prior to the all distinctions between the mere forms of code an action of trespass or of trover action, and evei-y action is now in form a 136 CIVIL REMEDIES. clearly stated in a recent case as follows: "Although all forms of action were abolished by the code, the principles by which the special action on the case, yet actions v.iry in their nature, and tliere are intrin- sic differences between them which no law can abohsli. It is impossible to make an action for a direct aggression npon the plaintitT's rights by taking and disposing of his property, tiie same thing, in sub- stance or principle, as an action to recover for the consequential injury resulting from the improper interference with the property of another in which he has a contingent or prospective interest. The mere formal differences between such ac- tions are abolished. The substantial dif- ferences remain as before. The same proof is therefore required in each of these two kinds of action as before the code, and the same rule of damages ap- plies. Hence in an action in which the plaintiffestablishes a rightto recover upon the ground that the defendant has wrong- fully converted property, to the possession of which the plaintiff was entitled at the time of the conversion, the proper measure of damages is still the value of tlie property." This rule, in respect to the measure of damages, is undoubtedly correct ; but the substantial features, which the learned judge declares remain unal- tered, are simply tlie primary rights of the plaintiff and the wrongs thereto done by tlie defendant. In the example which he gives, the difference which he j)oints out is nothing more nor less than the differ- ence between these rights and the delicts by which they are invaded. These of course cannot be changed by legislation ; but these do not constitute the action ; they are the facts upon which the action is based. The whole tenor of the quotation implies a greater resemblance between llie external forms of the civil action under the code and of those in use prior to the code than actually exists. In marked contrast with this citation from Mr. Justice Selden, I quote tlie language of Field C. J. in Payne v. Treadwell, 16 Cal. 220. The action was brought to re- cover possession of land. The complaint alleged " that the plaintifTs are owners in fee as tenants in common, and have the lawful right and are entitled to the pos- session " of the described premises, and " that said defendants wrongfully entered upon and are now in the wrongful pos- session of said premises, and wrongfully withhold the possession thereof from the plaintiff." The judgment demanded was possession and damages. The judge said (p. 243): "It is usual to speak of the action to recover possession of real property as the action of ejectment, and it is possible that with the technical desig- nation it is sometimes thought that some of the technical allegations peculiar to the old form of the action are still neces- sary. But such is not the case. There is but one form of civil action in this State, and all the forms of pleading and the rules by which their sufficiency is to be determined are prescribed by the Practice Act. The system in this State requires the facts to be alleged as they exist, and repudiates all fictions. And only such facts need be alleged as are required to be proved, except to negative the possible performance of the obliga- tion which is the basis of the action, or to negative an inference from an act which is in itself indifferent. Now what facts must be i)roved to recover in ejectment *? These only : that the plaintiff is seised of the premises, or of some estate therein, in fee, for life or for years, and that the de- fendant was in possession at the com- mencement of the action. The seisin is the fact to be alleged. It is a pleadable and issuable fact, to be established by conveyance from a paramount source of title or by evidence of prior possession. It is the ultimate fact upon which the claim to recover depends ; and it is facts of this character which must be alleged, and not the prior or probative facts which go to establish them." The doctrine which Mr. Justice Field thus applies to the sin- gle action is clearly applicable to all kinds of actions, legal or eq in table; and it is the common principle wiiicli renders the civil action under the new system a unit in respect of external form, no matter how much diversity there may be in the pri- mary rights, delicts, and remedies. This sound principle was accurately stated by ESSENTIAL DIFFERENCES BETWEEN ACTIONS. 137 different forms of action were governed still remain, and now, as much as formerly, control in determining the rights of the parties. In pleading, a party is now to state the facts on which he relies to sustain a recovery ; and, if issue be taken thereon, he will be entitled to just such a judgment as the facts established will by the rules of the law warrant, without regard to the name or the form of his action." ^ This judge would, however, have expressed his meaning more accurately if he had said, " The principles by which the different actions were governed still control," instead of " The principles by which the different forms of action were governed still control." The true effect of the reform was well stated by the Court of Appeals of Kentucky in the following extract : " The code makes no change in the law which deter- mines what facts constitute a cause of action, except tliat, by redu- cing all forms of a;ction to the single one by petition, it changes the question whether the plaintiff's statement of his cause shows facts constituting a cause of action in " trespass," or " assumpsit," or other particular form, into the more general question whether it shows facts which constitute a cause of action at all ; that is, whether the facts stated are sufficient to show a right in the plaintiff, an injury to that right by the defendant, and consequent damage. What facts do in this sense establish a cause of action is determined by the general rules or principles of law respecting rights and wrongs, and by a long course of adjudication and practice applying these rules to particular actions under the long- established rule of pleading, that the declaration must state the facts which constitute the plaintiff's cause of action, . . . The code does not authorize a recovery upon a statement of facts which did not constitute a cause of action in some form before the code M'as adopted. And therefore the former precedents and rules and adjudications may now be resorted to as authorita- tive, except so far as they relate to the distinctions between the lilr. Justice Cope in Jones v. Steamship ler v. Van Tassel, 24 Cal. 458, 463, Ehodes Cortes, 17 Cal. 487, 497 : "We have but J. said: "The forms only of the several one form, and nothing more is required actions have been abolished ; tlie suhstan- than a statement of the facts relied upon tied allegations of the complaint in a for a recovery. The statute makes no given case must be the same under our distinction in matter of form between ac- Practice Act as were required at the com- tions of contract and tliose of tort; and mon law." relief is administered without reference ^ Eldridge v. Adams, 54 Barb. 417, 419, to the technical and artificial rules of the per James J. common law upon the subject." In Mil- 138 CIVIL KEMEDIES. different forms of action, or to merely formal or technical alle- gations." ^ To this clear and accurate exposition I can add noth- ing which will increase its efficacy as the enunciation of the general principle. The final effect produced by the reform legis- lation in abolishing all distinctions between actions may be ex- pressed in the following manner: No inquiry is now to be made whether the action is "trespass," or "trover," or "assumpsit," or any other of the ancient common-law forms, nor, except for the single purpose of determining the proper tribunal for its trial, whether it is legal or equitable ; all these forms and classes are utterly abrogated. For this reason, the various rules which per- tain to each of these common-law forms of action, which distin- guished one from the other, which determined the peculiar nature and object of each, and which regulated the proceedings in each, are no longer to be invoked. It is simply an abuse of language to say that the ancient forms of action have been abolished, and that any of the rules which were based upon the existence of these forms, and had no relevancy except in connection there- Avith, are retained. The only question is, Would the facts stated have enabled the plaintiff to maintain any of the common-law actions or a suit in equity? This is, however, identical with the rule already given, that the primary rights created by the law, and the wrongs committed against them, and the remedial rights resulting from such wrongs, are unaffected by the legislation Avhich only aims at a reform in the procedure. § 109. The general doctrine thus reached may be properly illustrated by one or two examples which will serve to fix its exact meaning and application. Under the former system, the person who had the actual possession, or the immediate right to the possession, of a chattel which had been taken and carried away or destroyed by the wrong-doer, might recover his compen- 1 Hill V. Barrett, 14 B. Mon. 83, 85, per upon the subject of pleading and prac- iMarshall J. In tlie very recent case of tice." Tliere is really no confiict between Riclimond, &c. T. Co. r. Rogers, 7 Busli, these two modes of statement made by 532,535, the court used the following Ian- the Kentucky court. Tlie broad gener- guage : "The code makes no change in ality of the latter quotation is limited the law which determines what facts con- by the exception which the court adds, stitute a cause of action. Forms have and without which the rule as laid down bien abolished ; but the substance of the would be plainly erroneous. See Johan- connnon law rules of legal jtrocedure re- nesson i\ Borschenius, 85 Wis. 1.31, 135; mains, cxcei)t where they conflict with Haughton v. Newberry, 69 N. C. 456, the spirit of our statutory regulations 45'J-401. ESSENTIAL DIFFERENCES BETWEEN ACTIONS. 139 satory damages in the action of " trespass." To maintain it, the possession or immediate right thereof was an essential element, and the plaintiff recovered the value of the article as the measure of his damages. If, however, the plaintiff had merely a contin- gent or prospective interest, without right of immediate posses- sion, in a chattel which was at the time the general property of another, Ids appropriate action for the taking, destruction, or con- version of the chattel by a wrong-doer was "case," and his dam- ages were a compensation for the pecuniary loss actually sustained. The distinctions between these two actions have been abolished ; but the distinctions between the primary rights and the wrongs which constitute the two causes of action cannot be removed. Now, as before, if the owner in possession sues for the taking or destruction of his chattel, he will recover its value as his damages, while if the holder of a contingent future interest, unaccompanied by possession, sues for the taking or destruction, he will recover the value of his interest. In the one case the plaintiff must establish his possessory right if he seeks to obtain the value of the chattel as his compensation ; in the other case the vahie of his contingent interest will be proved and fixed by the jury. These elements and features, however, do not belong to the action as a judicial instrument for establishing a right ; they belong to the primary and remedial rights themselves, which are unchanged by the codes. In the former system of procedure, in the works of text-writers, and in the judgments of courts, the discussion and determination of these unchangeable primary and remedial rights was always intimately connected with, and made an essential part of, the discussion and determination of the rules as to external form in the action itself, so that it was difficult, if not impossible, to distinguish them. From the very nature of the common-law system -of procedure, as well as from the judicial habit of mind which it produced, the courts seldom, if ever, passed upon the existence of the primary or the remedial right in the abstract ; they decided rather whether the action was of the proper form, or the averments of the pleadings were of the j^roper nature, to maintain the primary right asserted, and to enforce the remedial right claimed to have aiisen. The result was that, in the standard treatises and digests, primary and remedial rights were classified and arranged under the various forms of action known to the common-law procedure. These forms, with all their inci- 140 CIYIL REMEDIES. dents, have been swept away ; but there is danger lest the tech- nical rules which have been abrogated should be confounded with the principles relating to rights and remedies which remain unaffected by the reform.^ § 110. A particular feature of distinction between actions — or rather between the rights upon which actions are based — which existed under the common-law system has been preserved under the new procedure. The general classification being made of iactions ex contractu and those ex delicto, there were many cases in which a party who had suffered a wrong l)y the conversion or the taking and carrying away of his chattels might waive the tort, and bring an action of assumpsit upon the wrong-doer's implied promise to pay the price of the articles taken. The same elec- tion still exists. Wherever the plaintiff who could sue in " tres- pass " or " trover " might, if he chose, bring " assumpsit," he may now waive the tort, and maintain an action upon an implied prom- ise and recover the price of the goods as though there had been a sale. This choice, however, does not relate to the external form of an action ; it relates to the very cause of action itself, — to the unchangeable rights which are to be protected and enforced by the judicial proceeding. In one instance, the plaintiff is jDcrmit- ted to view the transaction as an injury to his property by which he has sustained damages which amount to the entire value of that property. In the other, he views the transaction as a sale, by which the title to the property has passed to the defendant, and a dut}' to pay the price rests upon him. For reasons of public policy, the law allows the injured party to make his choice be- tween these two quite different versions of the same transaction ; and, although one of them may be a fictitious view, substantial justice is done thereby. It is plain, however, that this rule has no connection with the external forms of action ; it has reference only to the rights and delicts which lie back of all actions.^ § 111. In conclusion, as the distinctions between the common- 1 See Clark r. Bates, 1 Dakota 4.3 ; stone, 77 id. OG ; Harrington v. Bruce, 84 Prout I'. Hardin, 56 Ind. 165. id. 103; Sparman v. Keim, 83 id. 24-5, 2 As to actions ex conlrndu and ex 249 ; Lockwood v. Quackenbush, 83 id. delicto, see Goss »'. Board of Commission- 607; Conaun;lity v. Nichols, 42 id. 83; ers, 4 Col. 408 ; Pierce v. Cary, 37 Wis. Sedwick v. McKim,53 id. 307, 310 ; Ross 232 ; Frout v. Hardin, 56 Ind. 105 ; Green- v. Matlier, 51 id. 108 ; Mattliews v. Cady, tree v. Kosenstock, 61 N. Y. 583, .588-590 ; 61 id. 501 ; Graves v. Waite, 59 id. 156 ; Fields t'. Bland, 81 id. 239 ; Newdecker v. and post, §§ 554-564, 567-573. Kohlberg, 81 id. 296; Neftel v. Light- ESSENTIAL DIFFERENCES BETWEEN ACTIONS. 141 law forms of action are abolished, the practice since the codes, sometimes indulged in even by courts in their solemn judgments, of retaining the ancient nomenclature, and of describing a given cause as " trespass," "trover," "assumpsit," and the like, is pro- ductive of confusion, and of confusion alone. No jjractical rules or doctrines in the administration of justice according to the re- formed system of procedure result from these old. forms ; no practical aid in the decision of a cause is to be obtained from re- garding it as " trespass," or " trover," or " assumpsit," or from the giving it any other name ; no difficulties are removed nor doubts cleared up by a resort to this method of description. On the other hand, there is a constant tendency to associate with these names the rules and doctrines which were once inseparable from them, but which have been in the most positive manner abrogated by the legislature ; in fact, much of the doubt and confusion which even yet accompany the administration of justice in those States which have adopted the reformed sj^stem of proce- dure, 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 intro- duced by the legislative will must be left to be developed ac- cording to its own distinctive principles, without any interference from that which has been abandoned and discarded. 142 CIVIL EEMEDIES. CHAPTER SECOND. THE PARTIES TO THE CIVIL ACTION. SECTION FIRST. THE STATUTORY PROVISIONS AND THEIR GENERAL PRINCIPLES. § 112. 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 gov- erned 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 men- tion 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 b}^ one or all and against one or all, after the election is made to sue by or against all, the recovery is necessaril}^ joint, and the burden of the remedy is necessarily joint. The suit in equity was ham- pered 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, althougli 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 Avhose presence is necessary to a complete deter- STATUTORY PROVISIONS IN RELATION TO PARTIES. 143 mination 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 adjndicated upon by the court. As the methods adopted b}^ 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 under- stood 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 legisla- tion of the several States, will Ije seen from the pi-ovisions them- selves 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 provi- sion. It Avill be seen that there is an almost complete identity in many of these statutory rules as they are expressed in the va- rious codes, although in some of them the equitable theoiy has been more fully carried out into detail. § 113. Statutory Provisions. " Ever}' action must be prosecuted in the name of the real party in interest except as otherwise pro- vided in [this chapter, this article, or some designated section] ; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract." ^ The same ap- pears slightly varied in a few States, as follows : " Every action 1 Indiana, § 3 ; Kansas, § 26 ; Minne- §§ 27, 379 ; Nevada, § 4 ; Kentucky, § 30; sota, § 26 ; Missouri, art. 1, § 2 ; Wiscon- Washington, § 3 ; Montana, § 4. sin, ch. 122, § 12 ; Florida, § 02 ; Oregon, 144 CIVIL REMEDIES. must be prosecuted in the name of the real party in interest, ex- cept as is otherwise provided in [this title or article]." ^ 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 deliver}' of the grant, and the plaintiff shall be allowed to prove the facts to bring the case within this provision." '-^ In Nebraska the following provi- sion 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." 3 § 114. " In the case of an assignment of a thing in action, the action of the assignee shall be without prejudice to any set-off or other defence [now allowed, Ohio^ Kansas^ Nebraska'], existing at the time of or before notice of the assignment; but this section shall not apply to [negotiable bonds, Ohio, Kansas, Nehj^aska'] nego- tiable promissory notes or bills of exchange transferred in good faith and upon good consideration before due."^ "When the action is brought b}' the assignee of a claim arising out of con- tract not assigned by indorsement in writing, the assignor shall be made a defendant to answer as to the assignment or his in- terest 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.^ § 115. " An executor, an administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue with- out 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." ^ 1 Oliio, § 25 ;CaI.§ 367; Iowa, §2543; Florida, § 63; Kentucky, § 31; South Neb. § 28 ; Wyoming, § 31 ; Idaho, § 4. Carolina, § 135 ; Oregon, §§ 28, 382; Ne- 2 New York, § 111 (1501, 449, 1900, vada, §5; Dacota, § 05; Iowa, § 2546, 1910); Dacota, § 64; California, § 307; somewhat different in form from the text ; South Carolina, § 134 ; N. C. § 55. N. C. § 55 ; Wash. § 3 ; Idaho, § 5 ; Wy- 3 Nebraska, § 28 ; Wyoming, § 32. ominj;, § 33 ; Mont. § 5. * New York, § 112 (502, 1909, 1910); ^ iiuliana, § 6. Ohio, § 20; Kansas, § 27; Minnesota, c New York, § 113 (-^49) ; Indiana, § 4 ; §27 ; California, § 308 ; Wisconsin, ch. 122, Minnesota, § 28 ; California, § 369 ; Mis- § 13 ; Indiana, § 6 ; Nebraska, § 29 ; souri, art. 1, § 3 ; Wisconsin, ch. 122, STATUTORY PROVISIONS IN RELATION TO PARTIES. 145 The same as slightly varied : "An executor, administrator, trus- tee of an express trust, a person with "vvhom or in whose name a conrract 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." ^ § 116. " 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."^ In a few codes the same provision appears, but atlded 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." ^ § 117. " 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 can- not be obtained, he may be made a defendant, the reason thereof being stated in the complaint [or petition] . " [And] when the question is one of a common or general in- terest 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." ^ § 14 ; Florida, § 04 ; South Carolina, § 136 ; 3 Ohio, § 35; Indiana, § 18; Kansas, Oregon, § 29 ; Nevada, § 6 ; Dacota, § 66 ; § 36 ; Missouri, art. 1, § 6 ; Wisconsin, cli. North Carolina, § 57 ; Washington, § 4 ; 122, § 19 ; Iowa, § 2547 ; JJebraska, § .38; Idaho. §0; Wyoming, §.34; Montana, § 0. Florida, § 69; Kentucky, § 35; Nevada, 1 Oliio, § 27 ; Kansas, § 28 ; Iowa, § 13 ; Oregon, § -380, limited to equitable § 2544; Nebraska, § 30; Kentucky, § 33. actions ; Dacota, § 71 ; Washington, § 8. 2 New York, § 117 (440) ; Ohio, §34; * New York, § 118 (447, 1503, 1508) ; Indiana, § 17 ; Kansas, § 35; California, California, §§ 379, 380; South Carolina, §§ 378, 381 ; Missouri, art. 1, § 4 ; Wis- § 141 ; N. C. § 61 ; Ida. § 13 ; Wyo. § 41 ; consin, ch. 122, § 18; Iowa, § 2545; Ne- Mont. § 13. braska, § 37 ; Florida, § 08 ; Kentucky, ^ This provision is thus given in one § 34; Soiith Carolina, § 140; Oregon, section in New York, § 119 (448); In- § 380, but limited to equitable actions; diana, § 19; California, § 382; Wisconsin, Nevada, § 12 ; Dacota, § 70 ; N. C. § 60 ; ch. 122, § 20 ; Florida, § 70 ; S. C. § 142 ; Idaho, § 12 ; Wyoming, § 40 ; Montana, N. C. § 62 ; Ida. § 14 ; Wyo. § 42 ; Mont. § 12 ; Washington, § 8. § 14 ; Dacota, § 72 ; Oregon, § 381, limited 10 146 CIVIL REMEDIES. § 118. " Persons severally [and immediately] liable upon the same obligation or instrument, including tlie parties to bills of exchange and promissory notes [and indorsers and guarantors, Ka7isas]^ may all or any of them be included in the same action ;it the option of the plaintiff."'^ The corresponding provision in some of the States is much more full, and more explicitly alters llie common-law rules in respect to joint debtors. " Persons severally liable on tlie 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." ^ " 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 an executor or administrator, or other person liable in a representative character, may be joined with others originally liable, at the option of such person." ^ " When two or more persons are [jointly, Kentucky'] bound by contract [or by judgment, decree, or statute, whether jointly only, or jointly and severally, or severally, and including the parties to negotiable paper, coiumon orders or checks, and sureties on the same or separate instruments, or by any liability growing out of the same, Iowa] the action thereon may at the plaintiff's option be brought against all or any of them. When any of those [the ^QX'son's,^ Kentucky] so bound are dead, the action maybe brought to equitable actions ; Nevada, § 14, add- In Missouri, the first paragraph only is ing, liowever, to the section as given in enacted, and is art. 1, § 6. the text the following clause : " Tenants i New York, § 120 (454) ; Kansas, in common, joint tenants, and copartners, § 39 ; Minnesota, § 35, " and sureties on the or any number less than all, may jointly same instrument ; " Wisconsin, ch. 122, or severally hring, or defend, or continue § 21 ; Nebraska, § 41 ; Florida, § 71 ; Ohio, the prosecution or defence of any action § 38 ; Indiana, § 20 ; California, § 383, add- for the enforcement of the rights of such ing, " and sureties on the same orseparate person or persons." The same provision instrument," after the words " promis- is found in the California code, § 384, e.\- sory notes ; " S. C. § 143 ; N. C. § 63 ; Ore- ceptthat " coparceners " is substituted in gon, §§ 3G, 382 ; Nevada, § 15, Ida. § 15, place of " copartners." In the following Wyo. § 43, and Mont. § 15, with same .Slates it is separated into two sections addition as in California ; Dacota, § 73 ; corresponding to the two paragraphs of Wash. § 10. the text : Ohio, §§ 36, 37 ; Kansas, §§ 37, 2 Kentucky, § 38. 38 ; Iowa, §§ 2548, 2549 ; Nebraska, §§ 39, 8 Missouri, art. 1, § 7. 40 ; Kentucky, §§ SG, 37 ; Wash. §§ 8, 9. STATUTORY PROVISIONS IN RELATION TO PARTIES. 147 against any or all of the survivors, with any or all of the repre- sentatives of the deceased [with the representatives of any or all of the decedents, Kentucky^, or against any or all of such repres- entatives [or against the latter of any of them, Kentucky'] [when all the persons so bound are dead, the action may be brought against the representatives of all or of any of them, Kentucky']. An action or judgment against any one or more of several persons jointly bound shall not be a bar to the proceedings against the others."! § 119. " (1) The court may determine any controversj'' be- tween 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) [And] 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 lia- bility 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 Kentucky, § 39 ; Iowa, § 2550. In of those who are so liable. See Gen. Kansas all joint contracts are declared to Statutes (1868), ch. 21, §§ 1-4. The be joint and several ; on the death of one ■ same provisions are found in tlie statutes or more of tlie joint promisors or obligors, of Missouri, Wagner's Stat., vol. i. p. 269, the right of action exists against the rep- §§ 1-4. resentatives of the deceased and against - In the following States these pro- the survivors ; when all die the right of visions form a single section, as in the action exists against the representatives text: New York, § 122 (452, 820); Wis- of all the deceased debtors ; in all cases of consin, ch. 122, §§ 22, 23 ; Florida, § 73 ; joint obligations or joint "assumptions" South Carolina, § 145; N. C. § 65; Ne- of partners or others, the action may vada, § 17 ; Idaho, § 17 ; Dacota, § 75. In be prosecuted against any one or more these others they are separated into three 148 CIVIL REMEDIES. § 120. The following special provisions, found in several of the States, are quoted, not because ihey are necessarily involved in the general theory of the reformed 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 arbitrarj- notions of the common law in respect of parties. "A father, or, in case of his death or desertion of his family [or imprisonment, Indiana], the mother, may prosecute as phiintiff 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."^ " When a husband has deserted his family [or is imprisoned, Indiana], 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.""^ "A father, or, in case of his death or desertion of his famil}^ [or imprisonment, Indiana], the mother, may maintain an action for the injury [or death, Indiana, Oregon, California] of the child [an action for the expenses and actual loss of service resulting from the injury or death of a minor child, Iowa], and the guardian for the injury [or deatli, Indiana, Oregon, California] of the ward." ^ " An un- married female may prosecute as plaintiff an action for her own seduction, and recover such damages as may be found in her favor." ^ § 121. 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 per- sonally served, provision being made for extending its effect to sections, corresponding to the three sub- California codes in relation to " interven- divisions of tlie text: Ohio, §§ 40, 41, 42; ing," which are very special and unlike Kansas, §§ 41, 42, 4-3 ; Nebraska, §§ 43, that in tlie text, are quoted in a subse- 44, 45. In others still they form two quent section of this cliapter. sections, embracing respectively the first ^ Minnesota, § 32; California, § 375; and second subdivisions and the third: 'Oregon, § :]4 ; Indiana, § 25. Indiana, §§ 22, 23; Kentucky, §§ 40, 41. '- Minnesota, § 34; Indiana, § 2G ; In California, §§ 389, 386, correspond to Iowa, § 2564. the first and third sudivisions of the text. * Minnesota, § 33 ; California, § 376; In the others there is but one section Iowa, § 2556. But the last clause, as to identical with the first subdivision of the the guardian and ward, isnotfcmnd in the text : Oregon, §§ 40. 382 ; Mis. art. 8, § 4 ; Iowa code ; Oregon, § 33 ; Indiana, § 27. Iowa, § 2.5.51 ; see Minnesota, §§ 38-41 ; « i^wa, § 2555 ; California, §374 ; Ore- Wash. §§ 12-14 ; Wyo. §§ 45-47 ; Mont, gon, § 35 ; Indiana, § 24. §§ 17-22. The provisions of the Iowa and STATUTORY PROVISIONS IN RELATION TO PARTIES. 149 the other members by some subsequent proceeding. The follow- ing is the type of these provisions, and they are all substantially the same : " An action may be brought by or against a partner- ship, as such, or against all or either of the individual members thereof; and a judgment against the firm, as such, may be en- forced against the partnership property, or that of such members as have a[)peared or been served with notice. And a new action may be brought against the other members on the original cause of action." ^ Certain other special provisions in relation to parties will be quoted in subsequent sections, and especially the legisla- tion of the various States concerning suits by and against mar- ried 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. § 122. 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 ex- ception 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 plain- tiffs 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 statutor}' provi- sions quoted above did repeal and abrogate these long and firmly established rules and doctrines of the common law, and have 1 Iowa, § 2553; Minnesota, § 37; California, § 388; Oliio, § 629; Nebraska, §§ 24, 27. 150 CIVIL REMEDIES. therefore wished to confine their operation and effect to equitable actions.^ Another school of judges, regarding the codes as highly remedial statutes, have been inclined to fallow out their spirit, and to give their language the fullest meaning of which it is capable, even to the extent of holding that its general expressions abolished and swept away the legal distinctions between joint, joint and several, and several rights and liabilities. The influ- ence and effect of these different systems of interpretation will be shown in the succeeding sections of this chapter, § 123. In a few of the States the legislation has left no room for any such conflict of opinion, and has pushed the equitable theory to its final results by express enactments which leave noth- ing to implication. The codes of these States provide for bringing in parties to certain legal actions under some circumstances merely because the}' have an interest in the event of the suit, although they have no share in the relief, and bear no part of the liability; and they utterly abrogate the common-law rules relative to joint, joint and several, or several liabilities. In these States, there- fore, there can be no doubt as to the construction which should be put upon the general statutory provisions quoted ; and they are treated as establishing the equity doctrine and applying it to actions of all kinds. In the succeeding sections of this chapter I shall pursue the order of the legislation which is the same in all the States, and shall separately discuss the following subjects: The Real Party in Interest to be made Plaintiff; The Assigna- bility of Things in Action ; The Effect of an Assignment of a Thing in Action upon the Defences to it ; A Trustee of an Ex- press Trust, &c., to sue alone ; Who may be joined as Plaintiffs ; Who may be joined as Defendants ; When One or More may sue or be sued for All ; Parties severally liable on the same Instru- ment ; Bringing in New Parties ; Intervening ; and Interpleader. It is proper to remember that the doctrine as to Parties cannot be exhaustively discussed until the chapter is reached which treats of Judgments. The subject of rights and liabilities, joint, joint and several, or several, which is embraced under the head of Judgments, is so intimately involved with the subject of Par- ties that the two cannot be completely separated. 1 As an illustration of these views, see the opinion of S. L. Selden J. in Voorhis V. Child's Ex'rs, 17 N. Y. 354. THE REAL PARTY IN INTEREST TO BE THE PLAINTIFF. 151 SECTION SECOND. THE REAL PARTY IN INTEREST TO BE MADE PLAINTIFF. § 124, " Every action must be prosecuted in the name of the real party in interest, except when otherwise provided in this title [or chapter, or article]," is the sensible and comprehensive form used in Ohio, California, Iowa, Nebraska, Wyoming, and Idaho. To tliis is added: "But this section shall not be deemed to authorize thu assignment of a thing in action not* arising out of contract," in New York, Indiana, Kansas, Missouri, Wisconsin, Florida, South Carolina, Kentucky, Oregon, Nevada, Dakota, North Carolina, Washington, and Montana. It was sometimes said that at the common law a thing in action, not negotiable, could not be assigned ; but the true meaning of the rule was merely this, that the assignee could not bring an action upon it in his own name. Courts of law had long recognized the essential validity of such assignment in a large class of cases, by permitting the assignee, who sued in the name of his assignor, to have entire control of the action, and by treating him as the only person im- mediately interested in the recovery. Indeed, the assignment gave to the assignee every element and right of property in the demand transferred, except the single one of suing upon it in his own name ; it was regarded as assets in his hands and in those of his personal representatives ; his rights were completely protected against the interference of the assignor with an action brought in the latter's name. It is true, the property derived from the as- signment was said to be equitable, and not legal ; but this distinc- tion did not lessen the intrinsic, essential nature of the ownership. It would seem that the property of the assignee is now strictly legal, although the question does not require any solution in this work. § 125. One effect — and perhaps the principal effect of this statutory provision — is, that all assignees of things in action which are assignable may sue upon them in their own names, and are no longer obliged to sue in the names of the original as- signors. ^ It is not strictly correct to say that the provision itself 1 This provision only applies to " ac- special proceedings. The proceeding to tions " as defined in the cude, and not to enforce a mechanic's lien, in pursuance of 152 CIVIL REMEDIES. renders any thing in action assignable, that it creates any attri- bute of assignability ; but, for the purpose of defeating such pos- sible interpretation, the second clause was added in many of the codes. This limiting clause, however, is only negative in its form and meaning. It merely forbids a certain construction to be placed upon the preceding language. It does not say that no thing in action is assignable unless it arises out of contract. The rules governing this quality of things in action are found in other provisions of the law, and not in this section. It will be seen in the sequel that a large class of things in action not arising out of contract, but tvhich arise out of torts to property, may be assigned, and that the assignee ma}', therefore, bring an action upon them in his own name. It is plain, however, that a full discussion of this section requires an exhaustive examination of the question, What things in action may be assigned ? And this examination will be made in the next succeeding section of the present chapter. § 126. The immediate and in some respects the most im- portant consequence of the rule that " every action must be prosecuted in the name of the real party in interest," is this: wherever a thing in action is assignable, the assignee thereof must sue upon it in his own name. I shall therefore, in the first place, discuss this result, and ascertain the extent to which it has been carried, and the cases to which it has been applied. It is abun- dantly settled that when a thing in action, transferable b}^ the law, is absolutely assigned, so that the entire ownership passes to the assignee without condition or reservation, and the legal title is fully vested in him, he is tlie real party in interest, and may sue upon it in his own name, and is, in fact, the only proper party to bring the action, — as in the case of a claim for the use and occu- patiou of land thus assigned ;i a partnership demand transferred certain special statutes in New York, is Hun, 128; Jackson v. Daggett, 24 Hun, not an action ; and the original iiolder of 204 ; Browning v. Marvin, 22 Hun, 547 ; the lien who had assigned it is the proper Archibald v. Mut. Life Ins. Co., 38 Wis. party to institute tiie proceeding for the 542 ; Carpenter v. Tatro, 36 Id. 297 ; Har- benefit of his assignee, llallahan v. Her- din v. Hilton, 50 Ind. 31',) ; State v. John- bert, 57 N. Y. 409. As to actions by the son, 52 Ind. 197 ; Mitchell v. Dickson, 53 assignee, see Devlin v. The Mayor, &c., Ind. 110; Shane v. Francis, 30 Ind. 92; 63 N. Y. 8, 14-20 ; Sheridan v. The Gallaglier v. Nichols, 60 N. Y. 438, 448. Mayor, &c., 68 Id. 30 ; Fitch v. Rathhun, i Mills v. Murry, 1 Neb. 327, and a 61 Id. 579 ; Morris i-. Tuthill, 72 Id. 575 ; claim of damages for waste against a ten- Merchants' Bank y. Union, &c. Co., 09 Id. ant or subtenant in favor of the rever- 373, 380 ; Green v. Niagara Ins. Co., 6 sioner, and by him assigned to the plain- THE EEAL PAETY IN INTEREST TO BE THE PLAINTTFT. 153 by the other partners to one member of the firm ; ^ a delivery bond taken by a constable for the delivering up of jjroperty which he had seized on execution and transferred to the plaintiff in the action ; ^ the right of action to recover damages for a breach of a covenant of seisin in a deed of conveyance assigned by the gran- tee ; ^ a claim for borrowed money. * It was held in Missouri that the assignee of a thing in action arising out of contract must sue in his own name, although there was no specific statutory provi- sion in that State permitting such a demand to be assigned, and the statutory provision to that effect formerly existing had been omitted from the revision of the laAvs then in force. The clause of the Practice Act [the Code] was enough to authorize the action because he was the real party in interest. ^ § 127. Not only does the rule prevail when the assignment is absolute and complete, and the assignee is the legal owner of the demand ; it prevails with equal force in cases where the assign- ment is simply equitable in its character, and the assignee's title would not have been recognized in any form by a court of law under the old system, but would have been purely equitable. Such assignee, being the real party in interest, must bring an action in his own name ; for, in respect to this provision of the statute, the equity doctrine which it embodies is, beyond a ques- tion, to be applied to all actions. ^ As illustrations : the person to tiff. Rutherford v. Aiken, 3 N. Y. Sup. party holding the legal title of a note or Ct. 60. instrument may sue upon it, though he be 1 Canefox v. Anderson, 22 Mo. 3-17. an agent or trustee, and be liable to ac- A non-negotiable note payable in work, count to another for the proceeds of the Schnier v. Fay, 12 Kans. 18i ; Williams recovery ; but he is open in such case to V. Norton, 3 Kans. 295. any defence which exists against the 2 "Waterman v. Frank, 21 Mo. 108 ; party beneficially interested. Or the and see Moorman v. Collier, 32 Iowa, party beneficially interested, though he 138. Where a bond is taken in an action may not have the legal title, may sue in by an oflBcer for the security of any i)ar- his own name. This may not precisely ticular person, that person is the real accord with the line of decisions under party in interest. other codes, but we think it liberal and ^ Van IJoren i-. Relfe, 20 Mo. 455 ; Ut- rigiit, and conducive to the practical al- ley V. Foy, 70 N. C. 303 (a land contract), tainment of justice." In Lytle v. Lytle, * Smitli V. Schibel, 19 Mo. UO; Knad- Duval J. said (p. 128) : "Upon the face ler I'. Sharp, 36 Iowa, 232, 235 (an open of the petition in this case, it is perfectly account). clear that the plaintiff was not the owner 5 Long 1-. Heinrich, 46 Mo. 603. of the debt for which the action is G See Cottle v. Cole, 20 Iowa, 481, 485 ; brought ; but that Harmon [the assignee] Lytle !;. Lytle, 2 Mete. (Ky.) 127. In the is the equitable owner of it, and he is first of tiiese cases Mr. Justice Dillon therefore the real party in interest ; and said: "The course of decision in this under the plain rule of practice (§ 30) State establishes this rule ; viz., that the the action should have been brought in 154 CIVIL KEMEDIES. whom an order is given by a creditor upon his debtor for the whole amount of the demand, although the debtor has not ac- cepted nor promised to pay, as an equitable assignee, and must sue in his own name ;^ also, where a creditor assigns part of his claim to the plaintiff, of which the debtor tins notice ; ^ and when a bond was verbally assigned, and was delivered by the obligee to the plaintiff;'^ and when the assignment, though absolute on his name as plaintiff. It is true that, ac- cording to § 31, tlie assignor, Mrs. Lytic, was a necessary party as plaintiff or de- fendant, as the assignment was not authorized by statute, and did not in- vest the assignee with the legal title to the debt assigned." This last remark refers to a clause of the Kentucky code requiring the assignor to be made a party plaintiff or defendant, when the demand is not negotiable, or the assignment is not expressly authorized by some statute, so as to answer to the assignment and his own interest in the subject-matter. 1 Wheatley v. Strobe, 12 Cal. 92, 98; AValker v. IMauro, 18 Mo. 564. Upon facts as stated in the text, Gamble J. says in the last case : " The effect of our new code of practice, in abolishing the distinc- tions between law and equity, is to allow the assignee of a chose in action to bring a suit in his own name in cases where, by the common law, no assignment would be recognized. In this respect, the rules of equity are to prevail, and the assignee may sue in his own name." lie goes on to show that this is an equitable though not a legal assignment. 2 Grain v. Aldrich, 38 Cal. 514. The defendant being indebted to Brooks &Co. in the sum of $159,000, the latter assigned §44,000 of the claim to the plaintiff, who brings this action. The defendants had notice of the assignment. Sanderson J. speaking for the court, says, that under the common-law practice an assignment of a part of an entire demand was void at law, unless made with the consent or ratification of the debtor; but, "under the system of practice which prevails in this State, sucli results do not follow." After observations upon the union of le- gal and equitable methods, he goes on to show that in equity tlie assignee of part of a demand could maintain an action if he made the assignor a party. Had Brooks & Co. been made plaintiffs, and a prayer added for an account and apportionment of the debt, the strict requirements of the old equity practice would have been met; but the code reaches the same result in a shorter and simpler manner. See Shaver V. AVest. Un. Tel. Co., 57 N. Y. 459, 464. A clerk in the employ of the company, with the knowledge and assent of its pres- ident, gave the plaintiff for value the fol- lowing written order : " Treas. of the West. U. T. Co. Please pay I). L. N. §50 monthly, commencing at, &c. until §300 is paid, and charge same to my salary account." He was all the time working at a monthly salary exceeding §50. This order was presented to the treasurer and filed with him ; before any payment it was countermanded by the drawer. The holder, suing the company claiming to be an assignee of the clerk's claim, the Commission of Appeals held that the order was not an equitable as- signment, because it did not direct the payment " to be made out of any desig- nated fund or particular source." Dwight J. dissented. ^ Conyngham v. Smith, 16 Iowa, 471, 475, per Wright C. J. " In other words, the equitable rule as to parties is now applied to law actions, if the relief asked may be given in that court. And there- fore, if the plaintiff is the real owner of the bond, if it had been actually sold and transferred to him by a valid verbal con- tract, there is no reason why, under our present system of pleading and practice, he may not maintain the action in the manner and form as stated in his peti- tion." Barthol v. Blakin, 34 Iowa, 452, and Moore ;>. Lowry, 25 Iowa, 336. Same decision in case of mortgages verbally assigned. 8. P. Green v. Marble, 37 Iowa, 95 ; Andrews v. McDaniel, 08 N. C. 385 (an unindorsed note). THE EEAL PARTY IN INTEREST TO BE THE PLAINTIFF. 155 the face, was, in fact, partial, the assignee agreeing to account for the remaining portion to the assignor. In this case the as- signor might be brought in to protect his own interests, and, in some States, would be an indispensable party. ^ The rule de- duced from these authorities is plain and imperative : The assignee need not be the legal owner of the thing in action ; if the legal owner, he must of course bring the action ; but, if the assignee's right or ownership is for any reason or in any manner equitable, he is still the proper plaintiff, in most of the States the only plaintiff, although, in a few, the assignor should be joined as a plaintiff or as a defendant. The plain intent of the statute is to extend the equity doctrine and rule to all cases. ^ § 128. As the statutory provision declares that "every action must be prosecuted in the name of the real party in interest," the defence that the plaintiff is not such real party in interest is, in general, a bar to the suit. This is certainly so when the plaintiff is the assignee of any thing in action not negotiable, and the issue raised by an answer setting up such defence would be simply whether the plaintiff was, upon the proof, the real party in inter- est. If, however, the thing in action is an instrument negotiable in its nature, the subject is complicated by the special doctrines and rules of the law which relate to the quality of negotiability. It is elementary that possession of negotiable paper, payable to bearer, is at least prima facie evidence of ownership; and it is 1 Gradwohl v. Harris, 29 Cal. 150. gin r. Ireland, 14 N. Y. 322 ; Williams w. The action was brought by plaintiff as Brown, 2 Keyes, 486 ; Faddon i'. Wil- assignee of W. & B. of a contract for the Hams, 1 Robt. 340 ; Meeker v. Ciaghorn, payment of money. W. & B. intervened, 44 N. Y. 349, 353 ; Wetn)ore v. San Fran- alleging that, though the assignment was cisco, 44 Cal. 294, 300; Lapping v. Duffy, absolute on its face, it was actually for 47 Ind. 56 ; Boyle v. Robbins, 71 N. C. one-fourth only of the demand, and they 130. (W. & B.) were entitled to three-fourths ^ McDonald v. Kneeland, 5 Minn. 352, of the recovery. The court held that the 365, per Atwater J. "The code has action was properly brought, but also that wisely dispensed with the absurdity of the intervention was proper, and gave a requiring the assignee to use the name of judgment that tlio plaintiff recover one- the assignor in bringing suits, but it does fourth and W. & B. three-fourths of the not therefore follow that the legal estate in demand. Such an intervention and judg- the thing assigned passes to tlie assignee ; raent would doubtless shock a lawyer on the contrary, the only object of this bred in the old school ; but it is conveni- provision of the code seems to have been ent, sensible, and every waj- worthy of to assimilate the practice in courts of law universal adoption. The common-law ob- to that which always prevails in courts of jeetion that a divided judgment is im- equity, in permitting the real party in in- possible is simply absurd ; the thing is terest to sue in his own name. The inter- done, and is therefore possible. See also est or right acquired under this assign- Allen i;. Brown, 44 N. Y, 228, 231 ; Dur- ment is an equitable one." 15G CIVIL KExMEDIES. also settled that when such paper, payable to order, is indorsed and delivered to the indorsee, the legal title passes to him, and he may maintain an action thereon ; while the maker, acceptor, or indorsers cannot question his title, at least in any manner short of impeaching its good faith. This legal title carried with it the rifht to sue, no matter what arrangements might be made between him and his immediate indorser concerning the use of the proceeds. The question then arises, Has the rule introduced by the code changed these established doctrines? Does the apparent and formal legal ownership resulting from the possession of a negoti- able instrument payable to bearer, or from the indorsement and possession of similar paper payable to order, constitute the plain- tiff the real party in interest within the meaning of the code ? Or may the defendant go behind this formal title, and show that some other person is the real party in interest, and thus defeat the action ? If the latter query must be answered affirmatively, it is evident that the statutory provision under consideration has made an important change in the law of negotiable paper. The question thus proposed has given rise to some conflict in opinion, and is not entirely free from doubt. On the one side it has been urged that the language of the section in all the State codes is most general and comprehensive, containing no exception in terms nor by implication, and that it is, in its highest degree imperative, "mM6'i be prosecuted in the name of the real party in interest," except in the single case of " the trustee of an express trust," and that the real party in interest is the person for whose imme- diate benefit the action is prosecuted, who controls the recovery, and not the person in whom the mere naked apparent legal title is vested. On the other side it is urged that the rule permitting such a holder or indorsee to prosecute the action is one of the elementary doctrines of the law relating to negotiable paper, — a rule not of practice or procedure, but of the mercantile and commercial law, — and that the legislature cannot have intended, by such a general clause of a statute concerning procedure, to ab- rogate well-settled principles of the law merchant. I will exam- ine and compare some of the cases in which the question has been discussed. § 129. In Edwards v. Campbell,^ which was an action upon a note payable to bearer, the plaintiff had the note in his possession ; 1 Edwards v. Campbell, 23 Barb. 423. THE REAL PAIITY IN INTEREST TO BE THE PLAINTIFF. 157 but a judgment in his favor was reversed on the ground that lie was not the real party in interest. Killmore v. Culver ^ was an action upon a promissory note payable to Tanner or bearer. The answer denied the plaintiff's ownership, and alleged that Tanner was the real owner. It was sufficiently established by the evi- dence that the plaintiff was acting simjDl}'- as agent for Tanner, and would be immediately accountable to the latter for all the money recovered. These facts were held to constitute a complete defence on the ground that Tanner was the real party in interest, and should have been the plaintiff. In James v. Chalmers,^ it was said by one of the judges of the New York Court of Appeals, in reference to actions upon negotiable paper : " Under the code of procedure, if it appears that the plaintiff is not the real party in interest, it is a bar to the action, and no further defence is necessary." The question was very elaborately discussed by the courts of New York in Eaton v. Alger,^ which was an action by 1 Killmore v. Culver, 24 Barb. 656, 657, per S. B. Strong J. " Is, then, this plain- tiff the real part}' in interest? It seems to me from the evidence given by him- self and T. that he is not. He is not at all interested in the event of the suit ; for, should he recover, the money must go to T., and, should he fiiil, the loss would not be his, but would fall upon T." 2 James v. Chalmers, 6 N. Y. 209, 215, per Welles J. It is held in Hereth v. Smith, 33 Ind. 514, and cases cited, that, if the defendant desires to raise the issue in such an action, he must allege facts showing that the plaintiff is not the true party in interest; a denial is not suffi- cient. 8 Eaton V. Alger, 57 Barb. 179, 189. As the opinion of the court by James J. in this case contains a full statement of the argument in favor of the conclusion reached, I quote from it at considerable length. Evidence offered to prove the facts mentioned in the text was rejected on the trial, and a verdict was ordered for tlie plaintiff. " The question in this case is, whether the defendants should have been allowed to prove that the plaintiff is not the real owner of the note in suit. Every action is required to be brought in the name of the real party in interest, ex- cept as otherwise provided. No other pro- vision covers a case like this. It would, therefore, seem very clear that a defend- ant, on such an issue made by the plead- ings, would have the right to show that the plaintiff was not the real party in interest, particularly if he had pleaded a defence in the action good as against such pretended real party. The plaintiff, how- ever, insists that, notwitlistanding this pro- vision of the code, the indorsee of a note, or the holder of a note payable to bearer or indorsed in blank, may maintain an action upon it, although not in fact the owner, nor, as between himself and the owner, entitled to the proceeds when collected. Tliat such was the rule before the code is conceded, and the argument is that it was abolished by the code." Quoting from the Report of the Code Commissioners in relation to the section in question, he proceeds: "This section (§ 111) was adopted by the legislature precisely as submitted by the codifiers, showing that they approved of the reasons given by the codifiers for its adoption. It is quite immaterial, therefore, what was tlie rule previous to the code, if thereby the legis- lature intended to and did change the rule by express enactment. That they did so, we think, is clear from the language of the statute and the reasons for its adop- tion. In their reasoning, the codifiers alluded to the existing rules, and the necessity for a revision, one purpose of 158 CIVIL KEMEDIES. the indorsee of a note. The Supreme Court held that the de- fendants might prove that the plaintiff had no interest in the note, but was a mere agent of the payee, and was bound to account to him, on demand, for the proceeds, and that these facts would constitute a complete defence to the action. § 130. Cases of higher authority, because decided by the New York Court of Appeals, have established the other rule for that State. In City Bank of New Haven v. Perkins,^ the rule which prevailed prior to the code was reaffirmed and applied to the facts before the court, although no allusion was made in its opinion to the provisions of § 111 (1501, 449, 1909, 1910). The doctrine was stated as follows : " Nothing short of mala fides or notice thereof will enable a maker or indorser of such paper to defeat an action brought upon it by one who is apparently a regular indorsee or holder, especially when there is no defence to the indebtedness. As to anything beyond the bona fides of the holder, the defendant, who owes the debt, has no interest." The same rule was repeated in Brown v. Penfield ; ^ but in this case also the proposed change being to require the real person in interest to appear in court as such, foiloweil by an act providing that ' every action must be prosecuted in the name of the real party in interest.' This reasoning and tliis act seem too plain for misconception. The act is emphatic ; it uses the Saxon word 'must,' — a verb which has not yet been twisted by judi- cial construction, like the words 'may' or 'shall,' into meaning sometliing else, — to place beyond doubt or cavil wliat is intended." He then cites the cases al- ready quoted above in the text, and claims that the case in liand is distin- guishable from Bank of New Haven v. Perkins, 20 N. Y. 554, and Brown j;. Pen- field, 36 N. Y. 473. He concludes as fol- lows : " Tiie law of this State no longer permits actions to be prosecuted in the name of nominal plaintiffs. The moment tliat fact appears, the action is ended, no matter what tiie character of tiie instru- ment on wiiich it is founded, whetlier negotiable or not, or whether the defend- ant has or has not any defence to the in- debtedness." 1 City Bank v. Perkins, 20 N. Y. 5.54, 508, per Jolmson J. The learned judge also said : " It will be time enougli to de- termine whetlier any other person has a better title when such person shall come before the court to claim tlie bills in ques- tion, or their proceeds, from the plaintiff." The doctrine of City Bank v. Perkins is declared to be the settled general rule, but its operation explained and limited in Hayes v. Hathorne, 74 N. Y. 486. As sus- taining the general rule, see also Devol v. Barnes, 7 Hun, 342; Green v. Niagara Ins. Co., 6 Hun, 128 ; Davis v. Reynolds, 5 Hun, 651 ;' Sheridan v. The Mayor, &c., 68 N. Y. 30 ; Hardin v. Hilton, 50 Ind. 319; Hart v. Ilouchin, 50 Ind. 327 ; Cur- tis V. Sprague, 51 Cal. 239. 2 Brown v. Penfield, 36 N. Y. 473. The remarks of Davies C. J., in which this doctrine was reasserted, were, how- ever, mere ohlirr dirtn. The action was by the plaintiff as assignee of T. & Co. The referee before wliom the cause was tried found, as a fact, that T. & Co. never assigned the bills in suit to tlie j)laintiff. The Supreme Court reversed this finding, on the ground that it was contr.iry to the evidence ; and the Court of Appeals af- firmed the latter decision. These two courts thus held that the plaintiff was the assignee of T. & Co., and was the owner of the paper. This ruling completely THE REAL PARTY IN INTEREST TO BE THE PLAINTIFF. 159 there was no reference made to the provision of the code relating to the real party in interest. It might be considered doubtful whether the question had been put to rest by these two decisions, but all doubt has been removed. The case of Eaton v. Alger was carried to the Court of Appeals; the opinion of the Supreme Court was overruled ; and the original rule of the law in reference to suits upon negotiable paper was expressl}^ held not to have been changed by the code.^ In this conflict among the decisions, the judgment of the court of last resort of course prevails ; and the question is thus settled in New York by the force of authority, whatever may be thought of the comparative weight of the argu- ment in support of either rule. § 131. The doctrine which prevails in Iowa seems to be the same as that now established in New York.^ The construction given to the statutory provision by the court of Indiana is en- tirely different, as it is held to include the indorsee and holder of negotiable paper as well as the assignee of any other thing in ac- tion. Such indorsee or holder, although possessed of the naked legal title, is not the real party in interest, and is not authorized to sue, if the beneficial interest and the whole right to the pro- ceeds of the recovery is in another party.^ It is, however, a disposed of tlie case ; and the whole dis- estof the plaintiff in the said note, and that cussion which the learned chief justice the plaintiff has not since acquired any thought proper to add was entirely un- interest in the residue of the said note ; necessar}'. that the plaintiff is not the real party in 1 Eaton V. Alger, 47 N. Y. 345; s. c. interest in this action, but that the said 2 Keyes, 41. Kowe is the exclusive owner of said note. - Cottle V. Cole, 20 Iowa, 481, 485, per This defence was held to be good on de- Dillon J. "The course of decision in murrer thereto. After citing the Revised this State establishes this rule ; viz., that Statutes of Indiana, which permit the as- the party holding the legal title of a note signment of negotiable paper, and ex- or instrument may sue on it, though he pressly declare that the assignee may sue be an agent or trustee, and liable to ac- thereon in his own name, and quoting the count to another for the proceeds of the provisionsof the code passed subsequently recovery ; but he is open in such case to to the statute first referred to, which pro- any defence which may exist against the vide for suits being brought by the real person beneficially interested." party in interest, and also by " a trustee 8 Swift V. Ellsworth, 10 Ind. 205. of an express trust or a person expressly Ellsworth sued on a note made by Swift authorized by statute to sue," Hanna J., to one Rowe, and transferred by R. to who delivered the opinion of the court, the plaintiff. The answer set up, as the proceeds as follows : " Is the assignee of fourth defence, that the note was assigned a promissory note, who may hold it as by Rowe to the plaintiff to secure the sum such without any real interest, one of that of .$2,500,which Rowe owed to the plaintiff, class of persons here referred to as being and for no other consideration ; that after- 'expressly authorized by statute' to wards the defendant paid to the plaintiff sue? Or does the provision have refer- the said sura of $2,500, being all the inter- ence to another class of persons, such as 160 CIVIL REMEDIES. settled rule of pleading in Indiana, that an answer merely aver- ring that the plaintiff is not the real party in interest, but that some other person named is the real party, without alleging any facts from which these conclusions would arise, presents no issue.^ In Kentucky, also, tlie defence that the plaintiff is not the real party in interest may be set up in an action upon a promissory note or other negotiable instrument, brought by the person who is the apparent holder, or who has the naked legal title, although in that State, by virtue of an express provision of the code, the person having the legal title must also be made a party, either plaintiff or defendant.^ In an action by the assignee of a note against the maker thereof, it is no defence to show that the as- signment was made with intent to defraud certain creditors of the assignor. This does not make the plaintiff any the less the real party in interest. As the assignor participates in the fraud, he could not repudiate his transfer, and has parted with all pos- sible interest in the note.^ Whenever the defence that the plain- tiff is not the real party in interest is allowable, it must be pleaded in the answer ; if not, it will be regarded as waived.* § 132. Analogous to the subject discussed in the preceding paragraph is the question whether an assignee, to whom a thing in action has been transferred by an assignment which is absolute in its terms, so as to vest in him the entire legal title, but which, by means of a contemporaneous and collateral agreement, is, in fact, rendered conditional or partial, is the real party in interest. It is now settled by a great prej)onderance of authority, although guardians of an idiot, &c. 1 "We are of override an express permission given by a opinion tiiat the clause of tlie section prior statute to all assignees of negotiable above quoted does not have reference to paper to sue upon tlie same in tlieir own the rigiits of an assignee of a promissory names. This is therefore a much stronger note, but to such persons as may be au- case than any whicli has arisen in New thorized to sue in tlieir own names, be- York. See also Gillispie v. Fort Wayne, cause of holding some official position, as &c. K. R., 12 Ind. 31)8. the president of a bank, or the trustee of i Lamson v. Falls, 6 Ind. 309 ; Me- a civil township. It therefore follows wherter ;;. Price, 11 Ind. 190; Garrison r. that the real party in interest, as was for- Clark, 11 Ind. 360 ; Swift v. Ellsworth, merly the rule in equity, must bring the 10 Ind. 205; Hereth i-. Smith, 33 Ind. 514, action, subject to the provisions and ex- and cases cited. ceptions of the statute, and tliat, if any - Carpenter v. Miles, 17 B. Mon. 698, other than those thus authorized should 602. bring suit as plaintiffs, an answer showing 3 Rohrer v. Turrill, 4 Minn. 407. affirmatively tlie facts is a good answer." •• Savage v. Corn Exch. Ins. Co., 4 It will be noticed that the general provi- Bosw. 2. sion of the code in question waa made to THE REAL PARTY IN INTEREST TO BE THE PLAINTIFF. 161 there is some conflict, that if the assignment, whether written or verbal, of any thing in action is absolute in its terms, so that by virtue thereof the entire apparent legal title vests in the assignee, any contemporaneous, collateral agreement by virtue of which he is to receive a part onl}'^ of the proceeds, " and is to account to the assignor or other person for the residue, or even is to thus account for the whole proceeds, or by virtue of which the abso- lute transfer is made conditional upon the fact of recovery, or by wliich his title is in any other similar manner partial or conditional," does not render him any the less the real party in interest : he is entitled to sue in his own name, whatever collateral arrangements have been made between him and the assignor respecting the pro- ceeds. The debtor is completely protected by the assignment, and cannot be exposed to a second action brought by any of the par- ties, either the assignor or other, to whom the assignee is bound to account. This is the settled doctrine in most of the States.^ Notwithstanding the general unanimit}'- of the courts in sustain- 1 Allen V. Brown, 44 N. Y. 228, 231 receive it, the right to bring suit to collect (assignment witliout consideration, and assignee to be accountable to the assignor for all the proceeds) ; Meeker v. Claghorn, 44 N. Y. 349, 353 (facts similar to the last) ; Wetmore v. San Francisco, 44 Cal. 294 (assignment made as collateral secu- rity) ; Durgin v. Ireland, 14 N. Y. 322 (assignment in writing absolute, but by a contemporaneous agreement the assign- ors were to haA'e one-half the proceeds) ; Castner ??. Sumner, 2 Minn. 44 ; Williams V. Norton, 3 Kans. 295 ; Cottle v. Cole, 20 Iowa, 481 ; Curtis v. Mohr, 18 Wis. 615 ; Hilton V. Waring, 7 Wis. 492 (assignment as collateral security) ; Wilson v. Clark, 11 Ind. 385 ; Gradwohl v. Harris, 29 Cal. 150. In Castner v. Cook the notes in suit, which were for ■'?3,100, were assigned as security for $1,500, owing by the payee to the plaintiff, the latter giving back a bond tb pay over the balance after satis- fying his own demand. Upon these facts the court, per Atwater J., said: "There may be a question as to whether the as- signment of the notes was absolute, or whether a contingent interest remained in the assignor. But in either case the ac- tion is j)roperly brought in the name of the plaintiff. . . . The plaintiff was to re- ceive the money ; and, if authorized to it necessarily follows. Whatever may be the relations of the plaintiff to the assign- or can make no difference to the defend- ants. They can only raise the objection of a defect of parties to "the suit, when it appears that some other person or party than the plaintiff has such a legal interest in the note that a recovery by the plain- tiff would not preclude its being enforced, and they be thereby subjected to the risk of another suit for the same subject-mat- ter. Wilson [the assignor] had no such interest. He had no interest in the notes, and not even a certain resulting interest in the proceeds of the notes." In Williams v. Norton a note payable to the order of the payee had been verbally transferred and delivered to the plaintiff without indorsement. The action by such assignee was held to be properly brought, even though he may not be entitled to apply to his own use the whole proceeds. "A delivery by the payee to his surety or indemnitor, with authority to receive the money and pay the principal debt, will enable the surety to sue in his own name. He will, within the meaning of the code, be the real party in interest." 11 1G2 CIVIL REMEDIES. ing this doctrine, there are still some indications of a different opinion, although it can hardly be said that this difference has been embodied in an adjudication as the ratio decidendi. The opinion to which I refer will be found at large in the note, as it is an able argument upon that side of the question.^ Embraced within the same principle, and governed by the same rule, is the case of an assignee of a thing in action, who, by the terms of the transfer, is not bound to pay the consideration thereof until the debt has been collected ; he is the real party in interest, and is fully authorized to sue in his own name.^ § 133. The following are particular cases in which the assignee was held by the courts to be the real party in interest within the meaning of the codes, and entitled as such to sue in his own name : Where a bond or a mortgage was assigned verbally ; ^ the assignment of a receipt and deliver}^ order, which was in the fol- lowing words : " 1,000 bushels of corn. Received in store, on 1 Robins v. Deverill, 20 Wis. 142. Tlie plaintiff sues as assignee of Peet & Williams. Dixon C. J. gave the fol- lowing opinion (p. 148) : " The statute is imperative that every action must be prosecuted in the name of the real party in interest, except as therein otherwise pro- vided. The proof is that the plaintiff is not the owner of the demand sued upon. It belongs to the firm of 11. & L., com- posed of the plaintiff, his brother, and one Lewis. The demand was transferred to the plaintiff alone by words of absolute assignment, no trust being expressed, but, as the plaintiff himself testifies, he holds it nevertheless in trust for his firm. It was received on account of a debt due the firm of K. & L. from P. & W. Upon these facts it seems to me the plaintiff cannot maintain the action. He is not the real party in interest, nor the trustee of an express trust within the meaning of the statute. His brother and Lewis should have been joined as plaintiffs." After describing the requisites necessary to constitute a trustee of an express trust, the judge concludes: "In this case no agreement is shown that the plaintiff was to take or hold as trustee ; and that lie is a trustee results only from other circum- Blances. It is implied from the facts of the partnership, and that the plaintiff re- ceived the assignment on account of a debt due the firm." The court refused to pass upon these questions, holding that they were not raised by the pleadings in the cause ; that a defect of parties (if any) had been waived. See also cases cited ante, under § 130. - Cummings v. Morris, 2-5 N. Y. 625 ; s. c. 3 Bosw. 560. In delivering the judg- ment of the Court of Appeals, Allen J. said (p. G27) : "The object of the provi- sion (§ 111) was to abolish the distinction between the former practice of courts of chancery and of common law, and to give full effect at law, as well as in equity, to assignments of rights in action, by per- mitting and requiring the assignee to sue in his own name. If between the as- signor and the assignee the transfer is complete, so that the former is divested of all control and right to tlie cause of ac- tion, and the latter is entitled to control it and receive its fruits, the assignee is the real party in interest, whether the assign- ment was with or without consideration, and notwithstanding the assignee may have taken it subject to all equities be- tween the assignor and third persons." ^ Conyngliam v. Smith, 16 Iowa, 471 ; Barthol \\ Blakin, .04 Iowa, 4-52 ; Green v. Marble, 37 Iowa, 95 ; Andrews i>. McDan- iel, 68 N. C. 385. THE REAL PARTY IN INTEREST TO BE THE PLAINTIFF. 163 account of S. F. A., 1,000 bushels of corn, to be delivered to his order at, etc., etc. (signed) W. H. H. ; " ^ assignment of a prom- issory note payable to order without any indorsement ; ^ the assignment of a debt evidenced by a lost note ; ^ where the as- signment of a bond or note was by means of a separate instru- ment ill writing ; * the assignment of a claim arising from an agreement to pay the defendant in a certain pending suit a stipu- lated sum of money if he would withdraw his defence';^ the assignment of a claim for damages resulting from the wrongful conversion of chattels ; ^ the assignment by a widow of her right of dower after the death of her husband, but before the dower had been set apart to her.'^ The mere parting with the posses- sion of a note does not, however, constitute an assignment thereof, and the owner is the proper party to sue, although the instrument is in the hands of another person with whom it has been depos- ited.^ The assignee of a foreign executor or administrator may maintain an action in his own name to recover a debt due to the estate from a person residing within the State in which the suit is brought.^ Upon the same principle, when a demand not aris- ing within the State, in favor of one foreign corporation against another foreign corporation, is assigned to a resident of the State, such assignee may maintain an action upon it against the debtor corporation, although the original creditor is expressly forbidden by statute to sue under such circumstances. The prohibition of an action between the foreign corporations does not affect the assignability of the claim. ^*^ § 134. The assignee of a judgment recovered by the defendant 1 Merchants and Mechanics Bank v. ^ Petersen v. Chemical Bank, 32 N. Y. Hewitt, 3 Iowa, 93. 21. Tlie decision turned largely upon 2 Carpenter v. Miles, 17 B. Mon. 598; the law as to foreign administrators and White V. Phelps, 14 Minn. 27; Pease v. successions. In reference to the questions Rush, 2 Minn. 107 ; Pearson v. Cum- now under consideration, Denio J. said mings, 28 Iowa, 344 ; Hancock f. Ritchie, (p. 45) : "The law of maintenance pro- 11 Ind. 48. hibited the transfer of the legal property ^ Long v. Constant, 19 Mo. 320. in a chosp. in action so as to give the as- * Thornton i'. Crowther, 24 Mo. 164 ; signee a right of action in his own name. Peters v. St. Louis, &c. R. R., 24 Mo. 586. But this is now abrogated ; and such a * Gray i'. Garrison, 9 Cal. 325. demand as that asserted against tlie de- s Srhith i;. Kennett, 18 Mo. 154 ; Laz- fendant in this suit may be sold and con- ard V. Wheeler, 22 Cal. 139. In this last veyed so as to vest in the purchaser all case an action by the assignee to recover the legal as well as the equitable rights of possession of the chattels was sustained, the original creditor." ■^ Strong V. Clem, 12 Ind. 37. i» McBride v. Farmers' Bank, 26 N. Y. 8 Selden v. Pringle, 17 Barb. 458. 450, 457. 164 CIVIL REMEDIES. in an action brought to recover the possession of chattels may sue in his own name upon a bond given by the plaintiff upon the requisition made for a delivery of the goods to him. The assign- ment of the judgment carries with it all demands arising upon this bond or undertaking, and the assignee is the real party in interest.^ In like manner, the assignee of a judgment recovered against a sheriff for official misconduct in seizing the plaintiff's property may bring an action in his own name upon the sheriff's bond.2 The principle maybe stated more broadly. The assignee of any claim or demand may, in general, sue in his own name upon any incidental or collateral security connected with the demand, and by means of which its payment or satisfaction can be en- forced. Thus, the assignee of a judgment obtained in a garnishee process may maintain an action in his own name against the garnishees ; ^ the assignee of the cause of action in a pending litigation may sue on an appeal bond given to the plaintiff [the assignor] in the course of the proceedings.* The assignee of a reversion' and also of the covenants contained in the lease is the proper party to bring an action to recover damages arising from a breach of such covenants.^ When a surviving partner assigns things in action which belonged to the firm, the assignee succeeds to his rights, and must sue in his own name to collect the same.^ § 135. In Kentucky, if tlie assignment is equitable, which is defined to be an assignment not expressly authorized by statute to be made, although the assignee must sue in his own name, the assignor must also be joined as a party plaintiff or defendant ; '' as, for example, when an execution is assigned,^ or a lease.^ In 1 Bowdoin v. Coleman, 3 Abb. Pr. 431. ates on the remedy even more extensively 2 Cliarles v. Haskins, 11 Iowa, .329. than tlie statute of 82 II. VIII. c. 34. For 3 Whitman v. Keith, 1 Ohio St. 134. whether the covenant be collateral or in- In this case, Mr. Justice Scott gives a here in the land, if it be assigned, the as- very full and clear exposition of the stat- signee not only may, but must, sue in his utory provision under consideration. own name." 4 Bennett v. McGrade, 15 Minn. 132. c Roys v. Vilas, 18 Wis. 169. Same as to assignment of a contract, "^ Dean v. Engli.sh, 18 B. Hon. 1.32; Gallagher v. Nichols, 00 N. Y. 4.38, 448, Gill v. Johnson, 1 Mete. G49; Lytle v. 449 ; Bolen v. Crosby, 49 Id. 18-3. Lytle, 2 Mete. 127. 6 Masury v. Southworth, 9 Ohio St. » Watson v. Gabby, 18 B. Men. 658, 340. Ghol.fon J., after stating that the CG5. statute of .32 Henry VIII. c. 34, allowing ^ Hicks v. Doty, 4 Bush, 420. By 1 the assignee of tlie reversion to sue on R. S.ch. 22,§ G, "all bonds, bills, or notes covenants running with the reversion, had for money or properly shall be assignable not been enacted in Ohio, proceeds (p. so as to vest the right of action in the as- 340) : " Our code of civil procedure oper- siguee." THE REAL PARTY IN INTEREST TO BE THE PLAINTIFF. 165 certain States, where the thing in action is not negotiable, or assignable by indorsement, the assignor may be joined as a de- fendant to answer to his interest and to the assignment.^ In other States, however, where similar provisions are not found in the codes or practice acts, the rule is entirely different, and the assignor is not a proper party either plaintiff or defendant. Thus, in Ohio, an assignor having been made a defendant under the general provisions of the code relating to the joinder of parties plaintiff and defendant, it was held that he neither had an inter- est in the controversy adverse to the plaintiff, nor was he a necessary party to a complete determination or settlement of the questions involved therein, and therefore he had been improperly made a defendant.^ This is undoubtedly the rule in all the States whose codes do not contain the special provision permitting or requiring the joinder of assignors in order to answer to the assignment. And even though he may retain some residuary, contingent, or equitable interest, the assignor is not the proper party to sue ; the legal title is not only in the assignee, but he is entitled to receive all the proceeds of the recovery, and whatever possibilities the assignor may have, he is not the real party in interest.^ § 136. The thing in action may even be assigned while a suit upon it is pending, and, by the express provisions of the statute, the assignee may either be substituted as plaintiff, or the suit may be carried on to its termination in the name of the original party. Such substitution, when made, is not the bringing of a new action, and does not require a supplemental complaint. If an assignee carries on a suit in the name of the assignor, he must show affirmatively that the transfer was made pendente lite.^ § 137. It has been decided in some cases that the assignment of part of an entire claim does not enable the assignee to sue in his own name, but that the assignor must still sue for the whole de- mand.^ This rule is based upon the old doctrine of the indivisi- i Code of Indiana, § 6. 4 St. Anthony Mill Co. v. Vandall, 2 Allen V. Miller, 11 Ohio St. 374. 1 Minn. 246; Virgin v. Brubaker, 4 3 Smith V. Cliicago & N. W. R. R., 23 Nev. 31 ; Warner v. Turner, 18 B. Mon. Wis. 267, where it appeared that in pro- 758. ceedings supplementary to execution, be- ^ Cable v. St. Louis Marine Railway fore instituted against the plaintiff in Co., 21 Mo. 133 ; Leese v. Sherwood, 21 another State, the demand in suit had CaL 151. See Lapping v. Duffy, 47 Ind. been assigned to a receiver; this was held 56 ; Boyle v. Robbins, 71 N. C. 130. a complete defence. 166 CIVIL REMEDIES. bility in law of an entire thing in action. Other cases hold that such an assignment conveys an equitable interest, and makes the assignee an equitable owner, so that he may sustain an action brought in his own name, although the assignors may, upon their own application, be allowed to intervene, in order to protect their interests.-^ The grantee of land cannot sue in his own name to recover damages for the breach of covenants in the deed to his srrantor which do not run with the land, unless the covenants themselves have also been assigned, but the grantor is the proper party ; as, for example, the grantee cannot sue upon a covenant of seisin in the deed to his grantor, in those States where that covenant is regarded as broken immediately, if at all, upon the execution of the deed, and as not running with the land.^ § 138. It is no longer, consistently with the provisions of the codes, possible for one person to sue " to the use of" another, as was common in some States. The parties beneficially interested must themselves bring the action.-^ There are cases which hold that when there is a trustee of an express trust, lie must bring the action, and that the beneficiary can in no such case sue in his own name, at least alone.* The correctness of this ruling may well be doubted. The section relative to the real party in inter- est is, in all the codes, imperative ; while that in relation to the trustee of an express trust is permissive. § 139. The cases thus far considered in this section are all con- nected with the assignment of a thing in action b}' the original creditor, and they involve the question, when may the assignee, under such circumstances, be the party plaintiff in an action to enforce the assigned demand ? The rule of the statute, that every action must be brought in the name of the real party in interest, applies also to numerous cases which have no connection whatever with assignments and assignees ; and I propose, in the 1 Grain v. Aldrich, 38 Cal. 514 ; Wig- Ciiandier, 31 Mo. 28 ; Van Dorcn v. Relfe, gins V. McDonald, 18 Cal. 126. 20 Mo. 455 ; Wilkes v. Moreliead, Stan- 2 Hall y. riaine, 14 Ohio St. 417. Un- ton's Code (Ky.), p. .31 (n); Lytle v. derthe peculiar circumstanoes of this case, Lytle, 2 Mete. 127, 128. Also, State v. the court held tliat the firantee might sue, Johnson, 52 Ind. 197 ; Shane v. Francis, because he was the real owner of the land, 30 Id. 92. even when in the hands of liis grantor; * Reed v. Harris, 7 Robt. 151. A Spe- but the general doctrine of the text was cial Term decision, and not entitled to aflBrmed. much weifzht. See Western R. R. i-. Nolan, 3 Weise v. Gerner, 42 Mo. 527 ; Hutch- 48 N. Y. 513. ings I'. Weems, 35 Mo. 285; Brady i;. THE REAL PARTY IN INTEREST TO BE THE PLAINTIFF. 167 remainder of this section, to review and examine these other illustrations of the principle. It is now the settled doctrine in so many of the States, that it may be called the American doctrine, — altliough the contrary rule has been established in England and in some States, and notably in Massachusetts, where it has been very recently reaffirmed with emphasis, — that, where an express promise was made by A. to B., upon a consideration mov- ing from B., whereby the promisor engages to do something for the benefit of C, as, for example, to pay him a sum of money, although C. is both a stranger to the consideration and not an immediate party to the contract, yet he may maintain an action upon the promise in his own name against the promisor, without in an}' manner joining as a party the one to whom the promise was directly made.^ This rule Avas originally adopted prior to the reformed procedure, and was based partly upon considerations of convenience, and partly upon a liberal construction of the nature of the contract. The provision of the codes under review places the matter beyond all doubt ; for the person for whose benefit the promise is thus made is certainly the real party in interest. The following are some examples and illustrations of this rule : Where a partnership assign their assets, and, in consideration thereof, the purchaser agrees with the members to pay all their firm-debts, any creditor of the partnership may sue him upon this undertaking, and recover the amount of the indebtedness due to the plaintiff thus suing,2 and may even sue him and the sureties who united with him in his undertaking to the assigning parties ; ^ and where many subscribers contributed different sums of money to the de- fendant for a specified purpose, and he entered into a written contract with three persons, whereby among other things, he pro- 1 Kimball v. Noyes, 17 Wis. 695 ; ley, 42 N. Y. 316, 319 ; Secor v. Lord, 3 Sanders v. Clason, 13 Minn. 379; Meyer Keycs, 525; Claflin v. Ostrom, 54 N. Y. V. Lowell, 44 Mo. 328; Cross i'. Truesdale, 581,584; Cooley y. Howe Ma'cliine Co., 28 Ind. 44 ; Devol v. Mcintosh, 23 Ind. 53 N. Y. 620 ; Glen v. Hope Mut. Life Ins'. 529 ; Day v. Patterson, 18 Ind. 114 ; Rice Co., 56 N. Y. 379, 381 ; Barlow i-. Meyers, I'. Savery, 22 Iowa, 470 ; Scott v. Gill, 19 6 N. Y. Sup. Ct. 183 ; Johnson v. Knapp, Iowa, 187 ; Allen v. Thomas, 3 Mete. (Ky.) 36 Iowa, 616 ; Jordan v. Wliite, 20 Minn. 198; Wiggins v. McDonald, 18 Cal. 126; 91. Miller&Co. i-.Florer,15 0hioSt.l48, 151, '-'Sanders f. Clason. 13 Minn. 379-, per White J. ; Rotrers i-. Gosnell. 58 Mo. Meyer v. Lowell, 44 Mo. 328, and cases 589, 590 ; 51 Mo. 466 ; Meyer v Lowell, 44 cited ; Barlow v. Meyers, 6 N. Y. Sup. Ct. Mo. 328 ; Coster i-. Mayor of Albany, 43 183. N. Y. 399,411; Van Schaick v. Third 3 Kimball i'. Noyes, 17 Wis. 695 ; Devol Avenue R. R., .38 N. Y. .346 ; Ricard v. v. Mcintosh, 23 Ind. 529 ; Claflin v. Os- Sanderson, 41 N. Y. 179; Barker v. Brad- trom, 54 N. Y. 581, 584. 168 CIVIL EEMEDIES. mised to repay the sums so loaned, it was held that any subscriber might sue on the agreement to recover the amount which he advanced ; ^ and where A. placed a sum of money in the hands of B., which the latter promised to pay over to C, C. may prosecute an action against B. on his promise.^ Where the defendant was indebted to A., who was in turn indebted to B. in a less amount, and the two former parties agreed that defendant should pay to B. the amount of the latter's demand, which should be 'pro tanto a j)ayment on his own debt to A., B. was permitted to recover on this promise.^ If in a policy of insurance it is stipulated that the loss, if any, shall be paid to a person named, not the assured, such person may sue in his own name on the policy.'^ B. sold and de- livered goods to A., and in consideration thereof A. promised to pay a certain sum to C, which was, in fact, the amount of a debt due from B. to C. ; it was held that C. could recover upon the promise so made by A. in his behalf.^ Perhaps the most striking illustration of this doctrine, and of the extent to which it has been carried, is found in a class of cases where, upon a convey- ance of land, the grantee assumes and promises to pay a debt which is secured by mortgxage on the land so conveyed. If the grantee of land incumbered by a mortgage assumes the mortgage debt by a clause in his deed, and promises to pay the same, the creditor-mortgagee may maintain an action against this grantee upon the bond or other evidence of the indebtedness, and recover the amount thereof, and is not restricted to the remedy by fore- closure of the mortffasje ; ^ and the creditor mav tlms sue the grantee upon the bond, even though that instrument had expressly provided that the mortgagee should first have recourse on the land, and the obligor should only be liable for the deficiency which might arise after the foreclosure ; this stipulation, it was held, protected the obligor personally, and could not be taken advan- tage of by the grantee who had promised to pay the debtj The result of these and other decisions is, that the third person, for whose benefit an undertaking is entered into between other par- 1 Rice V. Savery, 22 Iowa. 470, 477. Y. Sup. Ct. 33, 39; Newman v. Spring- Dillon J. speaks of the rule as well field Ins. Co., 17 Minn. 123, 120. settled. 6 Hall v. Roberts, (31 Barb. 33. 2 Allen V. Thomas, 3 Mete. (Ky.) e i^-^vrence ij. Fox, 20 N. Y.268 ; Burr 198. V. Beers 24 N. Y. 178. 8 Wiggins V. McDonald, 18 Cal. 120. ' Thorp v. Keokuk Coal Co., 48 N. Y. * Cone V. Niagara Fire Ins. Co., 3 N. 253. THE EEAL PARTY IN INTEREST TO BE THE PLAINTIFF. 169 ties, may sue upon it, although such undertaking is an instrument in writing and under seal.^ This doctrine is phiinly a departure from the technical notions of the common law, which did not permit a person to sue upon a contract unless he was a party to it, or unless the consideration moved from him, and which espe- cially forbade an action upon a sealed undertaking by a stranger. The courts of some States adhere strictly to this old notion, and utterly repudiate the innovation.^ The new rule, however, is as convenient as it is just. The objections to it are every way tech- nical and arbitrary, — a repetition of verbal formulas without any convincing reasons. It certainly avoids a circuity of actions, and it enables the only person beneficially interested in the prom- ise — the real party in interest — to come into court in the first instance and establish his rights, without being driven to enforce them in a roundabout manner through the intervention of a third person who, if successful, must account to him for the proceeds of the litigation. The true extent and application of the doctrine, and the proper limitations upon it, have been discussed and fixed by the New York Court of Appeals in very recent cases.^ § 140. Upon the same principle, the equitable owner of a promissory note is the real party in interest within the statute, and is the proper person to sue upon it, although there may be no indorsement, and possession of the instrument is j^rima facie evidence of such ownership.* In fact, wherever the spirit of the reformed system is carried out, — and this is now very generally, • Coster !;. Mayor of Albany, 43 N. Y. is also available against the beneficiary. 399, 411; Van Schaick v. Third Avenue Phillips r. Van Schaick, 37 Iowa, 229. R. R., 38 N. Y. 346 ; Ricard v. Sanderson, See also Green v. Richardson, 4 Col. 41 N. Y. 179 ; Lawrence v. Fox, 20 N. Y. 584 ; McKinnon v. McKinnon, 81 N. C. 268 ; Burr r. Beers, 24 N. Y. 178 ; Thorp 201 ; Cone v. Niagara Ins. Co., 60 N. Y. V. Keokuk Coal Co., 48 N. Y. 253; Kim- 019; Barlow v. Myers, 64 Id. 41 ; Arnold ball V. Noyes, 17 Wis. 695; Devol v. r. Nichols, 64 Id. 117 ; Simson u. Brown, Mcintosh, 23 Ind. 529; Barker v. Brad- 68 Id. 355; Lake Ontario, &c. R. R. v. ley, 42 N. Y. 316, 319; Secor v. Lord, 3 Curtis?, 80 Id. 219; Dunning i'. Leavitt, Keyes, 525 ; Caflin v. Ostrom, 54 N. Y. 85 Id. 301 ; Root v. Wright, 84 Id. 72, 74, 581, 584 ; Glen v. Hope Ins. Co., 56 N. Y. 75 ; Pardee v. Treat, 82 Id. 385 ; Vrooman 379, 381 ; McDowell v. Laev, 35 Wis. 171. v. Turner, 69 Id. 280 ; Rowe v. Parsons, 2 Exchange Bank v. Rice, 107 Mass. 6 Hun, .338. 37, per Gray J. * Garner v. Cook, 30 Ind. 331 ; Corap- 8 Garnsey v. Rogers, 47 N. Y. 2.S3, 240, ton v. Davidson, 31 Ind. 62. In the latter per Rapallo ,7. ; Merrill v. Green, 55 N. Y. case, the answer denied that the plaintiff 270, 273; Turk v. Ridge, 41 N. Y. 201, was " the legal owner of the note in suit." 206. See also Hinman v. Bowen, 5 N. Y. This was held no defence, as it was suffi- Sup. Ct. 234, which holds that a defence, cient if he was the equitable owner, good as against the immediate promisee. 170 CIVIL REMEDIES. if not universally, the case, — the equitj'- rule as to parties is freely applied to all legal actions, and this one principle will easily solve all particular cases of difficulty or doubt.^ But, as has been shown in preceding paragraphs, the law as to commercial paper has not been changed in several of the States by this pro- vision of the statute in reference to the parties plaintiff; and in those States, therefore, the indorsee, and, a fortiori^ the payee of a negotiable note or bill may maintain an action upon it, even though there may be relations between himself and third persons which give them a right of action over against him for the pro- ceeds. As, for example, if A., having in his hands money be- longing to B., should loan it, and take a note from the borrower payable to himself, he could sue upon it ; however much B. might have been interested in the original money, and however valid a demand he may have against A., he is not a party to the note nor the holder of it.^ In the class of cases already mentioned, where an express contract is made Avith one for the benefit of another, and the person thus beneficially interested is permitted to sue in his own name, the one to whom the promise was expressl}^ given may, in general, also maintain an action. The promise being actually made to him, and the consideration moving from him, he is legally the contracting party, and is clothed with the legal right ; indeed, he falls under the definition of trustee of an ex- press trust given in another section of the codes. ^ 1 Conyngham v. Smith, 16 Iowa, 471 ; lias been actually sold and transferred to Tate y. Oliio, &c. R. R., lOInd. 174; Swift him by a valid verbal contract, there is V. Ellsworth, 10 Ind. 205. In the first of no reason why, under our system of plead-, these cases, Wright C. J., describing the ing and practice, he may not maintain his effect of the Code of Procedure, said (p. action in manner and form as stated iu his 475): "If the cause of action is cogni- petition." zable at law, the party having the real 2 Robbins v. Chock, 32 Ind. 328; Rob- interest therein is to be heard in that bins ;•. Dishon, 19 Ind. 204. form, if equitable, in equity. Hi.s pro- ^ See Rice i'. Savory, 22 Iowa, 470, ceeding, in other words, is to be 'ordi- 477; Cottier. Cole, 20 Iowa, 481, 485. In nary' or 'equitable,' according to the the former of these cases Dillon J. said: nature of the cause of action. And the " If the promise is made for the benefit of question is determined, not so much by another, who is the real party in interest, the evidence showing the interest, as by the latter may sue, thougli the contract the fact that he is the real party in in- was made to an agent or trustee ; or terest, and has for his cause of action a the agent or trustee, or person in whose subject-matter of which the law will take name a contract is made for the benefit of cognizance. In other words, the equity another, may sue without joining the rule as to parties is now applied to law party for whose benefit the suit is j)rose- actions, if tlie relief asked may be given cuted." This subject is treated at large in that court. And therefore, if the plain- in a subsequent section. tiff is the real owner of this bond, if it THE KEAL TARTY IN INTEREST TO BE THE PLAINTIFF. 171 § 141. The following are additional examples of actions main- tained by the real party in interest, and in which the equity doctrine on this subject has been freely applied, although the rights to be protected and the remedies to be obtained were legal. After a judgment had been obtained in an action of ejectment prosecuted according to the old form by John Doe as the fictitious plaintiff, the succeeding action to recover the mesne profits of the land should be brought in the name of the actual owner of the fee, — the lessors of the plaintiff in the ejectment, — they being the real parties in interest.^ An undertaking given to the sheriff by the defendant in an action for the recovery of chattels, in order to procure a return of the goods, sheuld be prosecuted by the plaintiff in that action, since he is the real party in inter- est ;2 and it is said to be a general rule in Iowa that when a bond or undertaking is given to an officer, in the course of some judicial proceeding, for the security of any particular person, such person may sue upon it in his own name without the for- mality of an assignment.^ If a levy by virtue of an execution is made upon chattels by a deputy sheriff, and the goods are wrong- fully taken from his possession, an action against the wrong-doer should be brought by the sheriff; he is the real party in interest, since the deputy sheriff acted simply as his agent.^ An injunc- tion bond having been given to two obligees, defendants in the action, one of them only was injuriously affected by the injunction and suffered any damage therefrom ; he alone, it was held, could maintain an action on the undertaking, as he was the only party in interest, and a suit in the names of both united as plaintiffs was declared to be improperly brought uiider the code.^ A plaintiff in a pending suit having moved for the appointment of a receiver, the application was denied on condition that the de- fendant give a bond or undertaking to account himself as though he were a receiver for all assets which might come into his hands, and in pursuance of this order he gave a bond in form running to the State ; the plaintiff having recovered judgment, and the defendant failing to account, the action on the undertaking was properly brought at once by the plaintiff in his own name, with- 1 Masterton v. Hagan, 17 B. Mon. 325. - McBeth v. Van Sickle, Nev. 134. It must be understood tl)at the new system ^ Moorman v. Collier, 32 Iowa, 138. had gone into effect ■. Willard, 17 N. Y. 4^0, in action would survive. It was such a which the original owner simply assigned wrong, because taking tiie body of tlie " ail his interest in the gocjds." Merrill debtor in execution is a satisfaction of V. Grinnell, 30 N. Y. 594. the juilgment. ■• Stanton v. Leland, 4 E. D. Smith, T Ayraull r. Pacific Bank, C Robt. 337. 88 ; Merrick v. Brainard, 38 Barb. 574. » Quin r. Moore, 15 N. Y. 432. WHAT THINGS IN ACTION AEE ASSIGNABLE. 183 § 150. The same doctrine is applied to claims growing out of fraud and false representations, if the deceit is practised in some transaction relating to the buying, selling, or other dealing with real or personal property, or if it be made in a contract by which real or personal property is to be acquired or transferred, or if it be the basis of or inducement to any act which results in a change of right relating to property. Of course, any fraud or false rep- resentation which merely affected personal relations, or was the basis or occasion of any change in purely personal status or con- dition, independent of and not connected with property, would not give rise to a cause of action which survives and is assignable. In accordance with the rule thus stated, a demand for damages arising from false representations, or from fraud of any kind, in the sale and purchase of land, would survive and may be assigned ; and the same is true in respect to a sale of goods.i j^^^^ ^ claim to recover money or other personal property which the defendant had obtained or procured to be transferred to him by fraud is assignable.^ The right of action given by statute to recover back money lost in gaming is assignable ; ^ and also a judgment rendered of damages for the commission of any tort whatsoever ; for, although the tort itself may have been purely personal, it is completely merged in the judgment which is, by a very ancient conception of the law still left existing, regarded as " a contract of record." "^ § 151. The following are examples of demands arising out of some special forms of contracts, and of special rights and interests analogous to, if not technically, things in action, which have been held assignable. In reference to the contracts specified, the only possible doubt which could be suggested was, whether they did not fall within the class of agreements purely personal in their nature, the right of action arising from which does not survive. A contract entered into by a private person with the prison au- 1 Haight V. Hayt, 19 N. Y. 464; the provision of the N. Y. R. S. (Vol. 2, Graves v. Spier, 58 Barb. 349; Johnston p. 447, §§ 1, 2,] wliioh determines what r. Bennett, 5 Ahb. Pr. (s. s.) 331 ; Wood- rights of action survive and what do not. bury V. Deloss, 65 Barb. 501. ^ JNIeech v. Stoner, 19 N. Y. 26; Mc- •2 Bvxbie v. Wood, 24 N. Y. GOT, COO; Dougall v. Walling, 48 Barb. 364; Hen- Grocers' Nat. Bank v. Clark, 48 Barb. 26. drickson v. Beers, 6 Bosw. 639. Contra, In the first of these cases, Zabriskie v. Weyburn v. White, 22 Barb. 82, which is Smith, 13 N. Y. .322, was distinguished, overruled by the later cases, and the correctness of the decision was '• Charles v. liaskins, 11 Iowa, 329. qdeslioned because the court overlooked 184 CRIL REMEDIES. thorities of the State, for tlie hiring of the services of a stipulated number of convicts at a particular State prison, to be employed in a certain occupation, was held assignable by the New York Court of Appeals. The agreement was not a stipulation for the personal services of the contractor, nor was he in a position of any public or personal trust or confidence, and the State officials having no claim upon his individual acts in preference to those of another, his interest could be transferred.^ A contract of guar- anty may be assigned ; ^ and the right to a trademark ; ^ a widow's right to dower before admeasurement ; * the claim of a righful officer against an intruder for the fees of the office received by the latter during the i^eriod of his occupancy ; ^ a sheriff's demand against an attornej^ for his fees in executing process ; *" bonds taken by sheriffs and other officers in the progress of an action for the protection of a party thereto.'^ An assignment of demands in ex- pectancy is valid in equity as an agreement, and becomes an absolute transfer as soon as .the demands arise and come into existence in favor of the assignor ; and the assignment of part of a demand of which notice is given to the debtor is also good in equity, so that when separate portions are thus assigned to dif- ferent persons, each assignee may maintain an action to recover the part transferred to him.^ § 152. Second : What tilings in action are not assignable. The general principle which determines what claims, demands, and rights of action are not assignable, has been already full}' stated in the text and in the quotations placed in the notes, and need not be repeated. It is simply necessary to ascertain, and the sole 1 Horner v. Wood, 28 N. Y. 350. had been paid, and the plaintifE notified 2 Small V. Sloan, 1 Bosw. 352. the city of the transfer. Bull proceeded 3 Lockwood V. Bostwick, 2 Daly, 521. with iiis work, aiul amounts became due 4 Strong V. Clom, 12 Ind. 37. to him, which satisfied the two prior as- ^ riatt V. Stout, U Abb. Pr. 178. signments, and were more than enough 6 Birljeck v. Stafford, 14 Abb. Pr. 285. to satisfy the plaintiff's demand. The ' Moorman v. Collier, 32 Iowa, 138. Court of Appeals held in accordance 8 Pield V. The ;\Iayor, &c., of New with the rules stated in the text, and York, G N. Y. 179. This action was com- also that payment by the debtor — the menced in equity before the code. One city — to the original creditor, — Bull, — Bull had various contracts with the city after notice of the assignment, is no de- of Now York for printing, and was en- fence to an action by the assignee. Al- gaged in their performance by printing tiiough this suit, commenced under the for the city. lie assigned to G., and G. to old system, was in equity, the doctrine the plaintiff, wliatever might become due recognized by it must be applicable to a thereon to the amount of .si, .500, after two civil action under the code. See Bliss v. certain other prior similar aj^sigMuicuts Lawrence, 58 N. Y. 442. WHAT THINGS IN ACTION ARE NOT ASSIGNABLE. 185 practical difficulty consists in ascertaining, what particular torts are injuries, bodily or mental, to the person only, or to the rep- utation, and what particular contracts are purely [jersonal, so that the right to enforce them, or the liability springing from them, does not survive after the death of a contracting party. ^ The following cases are given as illustrations of such wrongs and of such contracts. A cause of action for injuries to the person caused by negligence is not assignable, even though the injured party has an election whether to base his demand upon the tort or to sue upon a contract express or implied ; for example, a right of action against a railroad corporation for injuries caused by negligence to the person of a passenger. If tlie right is re- garded as arising from a breach of the contract to carry safely, such contract itself falls within the class mentioned above, since its violation causes mere bodily or mental injuries to the person, and not in any manner to property. The quality of assignability cannot be impressed upon a demand by changing the theory of the action brought upon it.- A verdict rendered in an action for a personal tort is not assignable ; the verdict does not change the nature of the right ; it liquidates the amount of the damages, but there is no debt or claim which can pass by assignment until a judgment is recovered.-^ It was decided by the New York Court of Appeals, in a well-considered case, that a claim of damages for falsely and fraudulently rex)resenting a person to be solvent, by which the party to whom the representations were made was induced to sell goods to such person on credit, and thereby lost the same or their price, was not assignable. This ease was dis- tinguished from that in which the wrong-doer by false statements procures goods to be sold to himself on credit, and it was said that the gist of the action was a pure deceit, a tort to the person, and not an injury to property rights.^ Although Zabriskie v. 1 A non-negotiable note, payable in consequence. Tlie cause of action was work and labor, is assignable. Schnier v. held to be for a mere personal tort, while Fay, 12 Kans. 184; Williams v. Norton, the other averments were of special dam- 3 Kans. 295. ages. Noonan v. Orton, .34 Wis. 259. 2 Pu-ple V. Hudson Eiver R. R, 4 » Brooks y. Hanford, 15 Abb. Pr. 342; Duer, 74 ; s. c. 1 Abb. Pr. 33 ; Hodg- Crouch v. Gridley, 6 Hill, 250 ; Kellogg man v. Western R. R., 7 How. Pr. 492. v. Schuyler, 2 Denio, 73 ; Lawrence v. A claim for damages resulting from a Martin, 22 Cal. 173 (verdict in an action malicious prosecution and abuse of legal for malicious prosecution). process was held not assignable, although * Zabriskie v. Smith, 13 N. Y. 322; the complaint alleged injury to the assign- Ilyslop v. Randall, 4 Duer, 6G0 (S. T.). or's business and loss of property as a 186 CIVIL REMEDIES. Smith has not been expressly overruled, its reasoning has been disapproved, and it is at least very much shaken. It is conceded that the court, in rendering its judgment, overlooked a section of the statute which virtually enumerates the classes of demands arising from torts which cannot be assigned, and which enumera- tion does not include the demand in question. As the cases decided subsequently are quite inconsistent with the conclusion reached in this case, it may be regarded as substantially over- ruled ; and, applying the doctrine of those authorities, it would seem that the right of action for such a deceit is assignable.-^ § 153. It has been held in one or two instances that a demand against a common carrier for the loss of goods entrusted to him was not assignable ; ^ nor the cause of action given by statute to recover back money lost in gaming ; ^ but these decisions are clearly wrong, and have been many times overruled, as is seen by authorities cited in former paragraphs. A wife's inchoate right of dower is not the subject of grant or of assignment.* The fol- lowing are illustrations of personal interests or rights which can- not be assigned : the right given to the debtor by statute to have 1 In Haight v. Hayt, 19 N. Y. 464, 467, Grover J., after quoting tlieN. Y. R. S. v. 2, p. 438, §§ 1 and 2, — the first of wliich sections declares that demands arising from torts to property rights shall survive, and the second of which provides that the first shall not extend to " actions for slander, for libel, or to actions for assault and battery or false imprisonment, nor to actions on the case for injuries to the per- son of the plaintiff or to the person of the testator or intestate," — adds : " The exceptions contained in the second sec- tion manifest the intention of the legisla- ture that all other actions founded upon tort should survive." And Judge Denio, who had himself delivered the opinion in Zabriskie v. Smith, said in this same case, in reference to these sections of the stat- ute : " The exception in § 2 shows, if there was otherwise any doubt, that the prior section was intended to embrace the case." Tills reasoning and these statutory pro- visions are entirely inconsistent with the decision made in Zabriskie v. Smith. Again, in Hyxbie v. Wood, 24 N. Y. (JIO, Gould J. speaking of tiie same ease, after commenting upon it and distinguishing it from the one before the court, remarked : " As to that decision, it may be advisable to see how fully it accords with the K. S. vol. 2, p. 447, §§ 1 and 2." Finally, in Johnston v. Bennett, 5 Abb. Pr. (n. s.) 331, 332, Jones J. said : " When Zabriskie V. Smith was decided, these provisions of the statute (§§ 1, 2, supra) do not appear to have been called to the attention of the learned judge who delivered the opinion." On tlie other hand, in Graves v. Spier, 58 Barb. 34'J, Mr. Justice Johnson in his elaborate opinion seems to recognize Za- briskie !'. Smith as good law ; at least he carefully discriminates it from the one tlien under consideration, points out the differences, and does not suggest a doubt as to its correctness. See also Price v. Pride, 75 N. Y. 244 (a cause of action from fraud) ; Bank of California v. Col- lins, 5 Hun, 200 (statutory claim against corporation trustees) ; Barry v. Equitable Life Ins. Soc, 51) N. Y. 587 (policy of in- surance on husband for benefit of wife cannot be assigned during husband's life- time." - Tlnirman t-. Welles, 18 Barb. 500. 8 Weyburn v. Wliite. 22 Barb. 82. 4 Moore V. Mayor, &c. of New York, 8N. Y. 110, per Gardiner J. THE ASSIGNMENT SUBJECT TO DEFENCES. 187 bills, notes, and other securities avoided or cancelled on the ground of usury ; ^ the right held by a covenantee to set aside, on account of fraud, a release which he had given of a covenant in his favor ; ^ the right of a grantor to avoid his conveyance on the ground of fraud ; ^ and the vendor's right of lien on land sold, for the purchase price thereof.* SECTION FOURTH. THE EFFECT OF AN ASSIGNMENT OF A THING IN ACTION UPON THE DEFENCES THERETO. § 154. The statutory provision found in the various State codes which relates to the subject-matter of this section is the following : " In the case of an assignment of a thing in action, the action of the assignee shall be without prejudice to any set-off or other defence .existing at the time of or before notice of the assign- ment ; but this section shall not apply to [negotiable bonds, Ohio, Kansas, Nehrasha'] negotiable promissory notes and bills of exchange, transferred in good faith and upon good consideration, before due." ^ In Ohio, Kansas, Nebraska, and Washington, the phraseology is slightly different. It reads : " The action of the assignee shall be Avithout prejudice to any set-off or other defence now allowed."^ The consideration of the topics em- braced in this provision should, in a strictly scientific method, form a part of the general subject of Defences, and might prop- erly be postponed until this portion of the work is reached ; but I have chosen to pursue the order of the codes themselves, which is the same in all the States, rather than to adopt one more theo- retically correct, yet perhaps not more practically advantageous. § 155. It is important that the defences which this clause admits should be carefully distinguished from the counter-claim 1 Bullard i'. Kaynor, 30 N. Y. 197; consin, ch. 122, § 13; Indiana, § 6; Florida, Boughton V. Smith, 26 Barb. 635. § 63; Kentucky, § 31; Soutli Carolina, 2 Milwaukee & Minn. M. R. v. Milwau- § 135 ; Oregon, §§ 28, 382 ; Nevada, § 5 ; kee & West. R. R.. 20 Wis. 174. Dacota, § 65; Iowa, § 2546 (slightly 3 Smith I'. Harris, 43 Mo. 557. altered) ; North Carolina, § 55 ; Idaho, 4 Baum y. Grigsby, 21 Cal. 172; Lewis § 5; Montana, § 5; Washington, § 3; V. Covillaud, 21 Cal. 178; Williams v. Wyoming, § 33 ; Arizona, § 5. Young, 21 Cal. 227. 6 oiiio, § 26 ; Kansas, § 27 ; Nebraska, s New York, § 112 (502, 1909, 1910) ; § 29 ; Washington, § 3, sfightly varied. Minnesota, § 27 ; California, § 368 ; Wis- 188 CIVIL REMEDIES. subsequently provided for by the statute. This section speaks of defences which, as they ask no affirmative relief, and simply prevent the plaintiff from succeeding, may be made available against an assignee as well as against the original creditor. The counter-claim is more than a defence : it assumes a right of action against and demands a recovery of affirmative relief from the plaintiff in the suit, and is, therefore, impossible as against an assignee suing, if it existed against the assignor. The proposi- tion here stated is very simj^le and plain, and yet the defences permitted against the assignee by this section have been some- times confounded with counter-claims, and that even by judges and courts. § 150. The section quoted above, and which is substantially the same in all the States, does not change the then existing law as to defences under the circumstances mentioned in it. It was not intended to alter the substantial rights of the parties, but only to introduce such modifications into the modes of protecting them as were rendered necessary by the provisions of the pre- ceding section requiring the real party in interest in most cases to be the plaintiff. Taking the two sections together, the plain interpretation of them is : The assignee of a thing in action must sue upon it in his own name, but this change in the practice shall not work an}' alteration of the actual rights of the parties ; the defendants are still entitled to the same defences against the a.ssignee who sues, which they would have had if the former rule had conthiued to prevail, and the action had been brought in the name of the assignor, but to no other or different defences. In other words, the section must be interpreted as though it read as follows : " In the case of the assignment of a thing in action, the action of the assignee shall be without prejudice to any set- off or other defence [now allowed or] existing at the time of or before notice of the assignment, which would have been avail- able to the defendant had the action been brought in the name of the assignor." This construction is now firmly and universally established.^ § 157. As the pre-existing rule is thus re-affirmed, a full dis- cussion of the statutory provision requires an examination and statement of that rule itself. In the first place, the general i Bc'ckwith V. Union Bank, N. Y. 211, 212, per Jolinson J. ; Mvers v. Davis, 22 N, Y. 4b9, 4'jO, per Denio J. EQUITIES BETWEEN ASSIGNOR AND ASSIGNEE. 189 doctrine is elementary that the purchaser of any thing in action, not negotiable, takes the interest purchased subject to all the defences legal and equitable of the debtor who issued the obliga- tion or security. That is, when the original debtor, the obligor on the bond, or the promisor, in whatever form his promise is made, if it is not negotiable, is sued by the assignee, the defences legal and equitable which he had at the time of the assignment, or at the time when notice of it was given, against the original creditor, avail to him against the substituted creditor. ^ This doc- trine has been applied to all kinds of defences as well to set-off, and to all forms of contract not negotiable : as, for example, in an action on a bond and mortgage by the assignee, the defence that the bond and the mortgage collateral thereto were given on consideration that the obligee should perform certain covenants contained in an agreement between the parties, which was set out, and that he had wholly failed to perform the same, was held good ; 2 in an action brought on a warehouseman's receipt, the same being held not negotiable ; ^ in an action by an assignee for the benefit of creditors ; * and in an action to compel a specific performance, brought by the assignee of the vendee, under a con- tract for the sale of lands, although the vendee was in posses- sion.^ § 158. The doctrine is not confined, however, in its operation to the case of the debtor — the promisor in the thing in action — setting up a defence to an action brought by an assignee upon the demand itself to enforce the collection or performance thereof; it applies also to the second and subsequent assignees of a non- negotiable thing in action, although transferred to the purchaser and holder for full value, and without notice, if there were equi- ties subsisting between the original assignor and his immediate 1 Ingraham u.Disbrough, 47 N. Y. 421 ; tlie notice." Commercial Bank v. Colt, 15 Andrews t-. Gillespie, 47 N. Y. 487 ; Bush Barb. 506; Ainslie v. Boynton, 2 Barb. V. Lathrop, 22 N. Y. 535, 538, per Denio 258; Wood v. Perry, 1 Barb. 114; West- J. ; Blvdenburgh r. Thayer, 3 Keyes, em Bank v. Sherwood, 29 Barb. 383 ; 293 ; Callanan v. Edwards, 32 N. Y. 483, Reeves v. Kimball, 40 N. Y. 299. 486, per Wright J., who thus states the - Western Bank y. Sherwood, 29 Barb, rule: "An assignee of a chose in action 383. not negotiable takes the thing assigned, 3 Commercial Bank v. Colt, 15 Barb. subject to all the rights which the debtor 506. had acquired in respect thereto prior to * Maas v. Goodman, 2 Hilt. 275 ; Ma- the assignment, or to the time notice was rine Bank i'. Jauncey, 1 Barb. 486. given of it, when there is an interval be- ^ Reeves i'. Kimball, 40 N. Y. 299. tween the execution of the transfer and 190 CIVIL REMEDIES. assignee in favor of the former. If the owner and holder of a thing in action not negotiable transfers it to an assignee npon condition, or subject to any reservations or claims in favor of the transferrer, although the instrument of assignment be absolute on its face, this immediate assignee, holding in it a qualified and limited property and interest, cannot convey a greater property and interest than he himself holds; and if he assumes to convey it to a second assignee by a transfer absolute in form, and for a full consideration, and without any notice on the part of such purchaser of a defect in the title, this second assignee neverthe- less takes it subject to all the equities, claims, and rights of the original owner and first assignor. The doctrine of so-called " latent equities," which has received some judicial support, — that is, the doctrine that the equities of the original assignor, under the circumstances thus stated, are latent and cannot pre- vail against the title of the second assignee, — is unsound ; it is an attempt to extend the peculiar qualities of negotiable paper to things in action not negotiable, and destroj's the fundamental distinction between the two classes of negotiable and non-nego- tiable demands. 1 § 159. A few illustrations of this rule will serve to show its true meaning, and the extent of its application. The holder of a bond and mortgage for $1,400 assigned and delivered them to secure an indebtedness of $270, the assignee giving back a written undertaking to return the same upon being paid that amount. This assignee afterwards transferred the securities to a second, and he to a third assignee, the latter paying full value, and having no notice of any outstanding claims ©r defects in the title. The original owner tendered to this assignee the $270 and interest thereon, and demanded a return of the bond and mort- gage. Upon refusal he brought an action to compel such return ; 1 Bush V. Lathrop, 22 N. Y. 535; An- v. Equitiible Life Ins. Soc, 59 id. 587; derson v. Nicholas, 28 N. Y. GOO, approved Green i\ Warwick, 04 id. 220 ; Looniis v. by Woodruff J. in Keeves v. Kimball, 40 Kuck, 50 id. 620 ; Davis v. Bechstein, 60 N. Y. 311 ; Mason v. Lord, 40 N. Y, 476, id. 440, 442 ; Mattliews v. Sheelian, 69 id. 487, per Daniels J. ; Williams v. Thorn, 685; Cutts v. Guild, 57 id. 229, 2-32, 233; 11 Paige, 459; McNeil v. Tenth Nat. Keid ?;. Spra^ue, 72 id. 457, 462 ; Crane y. Bank, -55 Barb. 59, 68 ; Schafer v. Keilly, Turner, 67 id. 437, 440 ; Combes v. Chand- 50 N. Y. 67; Mangles v. Di.xon, 3 II. of ler, 33 Ohio St. 178, 181-185; Farmers' L. Cas. 702. See also on the subject Nat. Bk. v. Fletcher, 44 Iowa, 252 ; and discussed in this and the succeeding see in Ponieroy's Equity. §§ 707-715, paracraphs. Trustees of Union Coll. v. where this subject is fully discussed. Wheeler, 61 N. Y. 88, 104, 112 ; Barry EQUITIES BETWEEN ASSIGNOR AND ASSIGNEE. 191 and it was held by the New York Court of Appeals, after a most exhaustive discussion, that he should recover.^ Certificates of stock being wrongfully taken from the owner and sold to the de- fendant, it was held that the latter acquired no better or higher title than that held by his immediate transferrer, — the one who wrongfully converted the stock, — and that the original owner could recover the value of the securities with interest ; but the decision was partly placed upon the special circumstances of the transfer, which deprived the defendant of the character and position of a bona fide purchaser.^ The lessee of premises assigned the lease by an instrument valid on the face, but the transfer was in fact given as security for an usurious loan made to him by the assignee. This lease was afterwards transferred by the assignee-, passed through divers hands, and was finally purchased by the defend- ant, who knew that the first transfer was intended as a security for a loan, but who had no knowledge nor notice of the usurious taint which affected the loan, and who paid full value as the con- sideration of the transfer to himself. Subsequent to the original assignment by the lessee, but before the transfer to the defendant, 1 Bush v. Lathrop, 22 N. Y. 535. The opinion of Denio J. is a most able review of all the authorities which seem to sus- tain the doctrine that certain so-called " latent equities " are not protected against an assignment. He shows that all the expressions of judicial opinion to that effect are obiter dicta, while a large num- ber of direct decisions necessarily involv- ing the question are opposed to the doc- trine. I would add that the course of adjudications in reference to the sale of goods and chattels by conditional vendees who have been put in possession, and who have been held unable to transfer an absolute title to bona fide purchasers for value, fully supports the reasoning and con- clusions of Judge Denio. There is no pos- sible ground of valid distinction between the transfer of a thing in action when the transferrer appears to be clothed with the complete ownership, but is actually not, and the transfer of a chattel by a person similarb^ situated and liaving all the outward indicia of perfect title. See Ballard v. Burgett, 40 N. Y. 314, and the cases cited. 2 Anderson v. Nicholas, 28 N. Y. 600. On account of the peculiar facts referred to in the te.xt, which prevented the de- fendant from relying upon the defence of bona fides, this case cannot be regarded as a direct authority for the doctrine of the text. One of the judges — Davies J. — bases his judgment entirely upon the ground that the assignee could under no circumstances acquire a better title to a non-negotiable thing in action than that possessed by his immediate assignor, and made no allusion to the defendant's want of good faitii. Another — Denio J. — dwelt upon the facts which showed the bad faith, but was, at the same time, very careful to protest against any inference from his course of argument to the effect tliat, if the purchase had been in good faith, the assignee would have been pro- tected. The third judge who delivered an opinion — Hogeboom J. — seems to have adopted the view of the case taken by Davies J. On the whole, although the fijct of bad faiih was an element in the decision, the doctrine laid down applies to all cases of transfer, those in good faith as well as those in bad faith. 192 CIVIL REMEDIES. the plaintiffs recovered a judgment against such lessee, which was regularly entered and docketed, and the lessee's interest in the premises leased and in the lease itself was sold on execution, bought in by the plaintiffs, and a sheriff's deed of such interest was delivered to them, which deed, however, was executed after the assignment to the defendant. The plaintiffs tliereiipon com- menced an action to recover possession of tlie leased jjremises, and to avoid tlie transfer of the lease to the defendant on account of the usury which affected and nullified the first assignment made by the lessee to his immediate assignee. The New York Court of Appeals, following the doctrine of the decisions quoted above, held that the action could l)e maintained ; that the lessee might have set aside the transfer from himself on account of the usury which tainted it ; that the subsequent assignees, including the defendant, succeeded to all the rights, and were subjected to all the disabilities, possessed by and imposed upon the person v/ho transferred the security to them, — the first assignee ; and, finally, that the judgment creditors of the lessee were clothed with his rights and powers in the matter.^ § 160. The principle thus settled, and the cases which support it, are entirely consistent with another doctrine that has lately been approved and established by the same distinguished court, namely, the doctrine of estoppel as applied to the transfer of cer- tain species of things in action which, in the customary practice of business men, have acquired a quasi negotiable character. The doctrine as thus invoked by the court, may be stated as follows : The owner of certain kinds of things in action not technically negotiable, but which, in the course of business cus- toms, have acquired a semi-negotiable character as a matter of fact, may assign or part with them for a special purpose, and at the same time may clothe the assignee or person to whom they have been delivered with such apparent indicia of title, and in- struments of complete ownership over them, and power to dispose of them, as to estop himself from setting up against a second 1 Mason v. Lorfl, 40 N. Y. 470, 487. Bush v. Latlirop is reaffirmed, and its The doctrine is directly sustained in the principle pronounced to be " well settled." following more recent cases : Schafer v. The result of these authorities is to limit TJeiliy, 50 N. Y. 01. 07; Reeves i-. Kim- the decision in IMoore v. Metropolitan ball, 40 N. Y. 'J'.tO ; Ingraham v. Dis- Nat. Bank, n;/5-a, and to confine it to the borougii, 47 N. Y. 421 ; Cutts v. Guild, 57 doctrine as laid down in McNeil v. Tenth N. Y. 229, 232, 233. In the last case Nat. Bank, infra. ASSIGNMENT OF STOCK CERTIFICATES. 193 assignee to whom the securities have been transferred in good faith, and for vahie, the fact that the title of the first assignee or holder was not absolute and perfect. After some conflict of opinion in the lower courts, the New York Court of Appeals has recently applied the foregoing doctrine to the customary mode of dealing with certificates of stock. It holds that if the owner of such stock certificates assigns them as collateral security, or pledges them, or puts them into the hands of another for any purpose, and accompanies the delivery by a blank assignment and power of attorney to transfer the same in the usual form, signed by himself, and this assignee or pledgee wrongfully sells them to an innocent purchaser for value in the regular course of business, such original owner is estopped from asserting, as against this purchaser in good faith, his own higher title and the want of actual title and authority in his own immediate assignee or pledgee. This principle, thus applied to the peculiar state of facts described, and to the particular kind of securities, is in no respect necessarily antagonistic to the general doctrine in relation to things in action before stated in the text. The court rested its decision exclusively upon the form of the blank assignment and power of attorney executed by the assignor and delivered to the assignee, which clothed him with all the apparent v\Q\\i& of owner- ship which are recognized by business men in their usual course of dealing with like securities, as sufficient to confer a complete title and power of disposition upon the assignee. The decision was nothing more than the application of the doctrine of estoppel in circumstances to which it had not before been applied. ^ ^ McNeil i>. Tenth Nat. Bank, 46 N. Y. he confines himself exclusively to the 325, reversing s. c. 55 Barb. 59. The particular species of security then before Supreme Court held (1) that certificates the court, — certificates of stock in stock of stock were in no respect negotiable, corporations ; and, while he does not claim and (2) the rule as laid down by Denio J. for tiicm absolute negotiability, he does in Bush v. Lathrop. The law of estoppel in fact render them indirectly negotiable was not invoked nor alluded to. In the by means of the estoppel which arises Court of Appeals the doctrine of latent upon dealing with them in the manner equities was discussed ; the decision of the described, which is the mode universally court in Bush v. Latlirop, and the reason- prevalent among business men. In re- ing of Mr. Justice Denio, were expresslj' spect to the opinion of Denio J. he says recognized as correct, and as applicable to (p. 339) : "But in no part of his learned all cases in which the facts do not warrant and exhaustive opinion does he seek to the application of the principle of estop- apply its doctrine to shares in corpora- pel. Mr. Justice Rapallo, in his able tions or other personal property the legal judgment, does not discuss the rule in title to which is capable of being trans- relation to things in action of all kinds ; ferred by assignment ; and the free trans- 13 194 CIVIL REMEDIES. § IGl. This decision, and the rule which it establishes in ref- erence to certificates of stock, are doubtless in the interests of modern business methods. For several 3'ears these certificates of stock, with an assignment in blank and a blank power of attorney to effect their surrender and transfer, have been prac- tically regarded by business men as negotiable instruments ; they have been used, transferred from hand to hand, and assigned by delivery, in exactly the same manner as bills and notes payable to bearer, and millions of property are constantly ventured upon their use. It was a matter of absolute necessity that the courts should pronounce these securities practically negotiable ; a con- trary ruling would have interru]3ted and jeoparded the whole financial system of the countr3^ It would have been well if the court had boldly met the question face to face, and had expressly held these securities to be negotiable to all intents and purposes. This course of decision would have produced no unexijected in- terference with other general doctrines, and it has a precedent in the acts of the American courts holding that municipal and cor- mission from hand to hand is essential to the prosperity of a commercial people. Tlie question of estoppel does not seem to have been considered in that case, and perhaps it would not have been appro- priate." He expressly approves the rule frequently laid down as to chattels, and, while invoking the aid of estoppel, is very careful to state the narrow Hmits within which it may be used, and the kind of facts which are necessary to its use. He says (pp. 329, 330) : " Simply intrusting the possession of a chattel to another as depositary, pledgee, or other bailee, or even under a conditional executory con- tract of sale, is clearly insufficient to pre- clude the real owner from reclaiming liis property in case of an unauthorized dis- position by the person so intrusted. (Bal- lard V. Burgett, 40 N. Y. 314.) The mere possession of cliattels,by whatever means acquired, if there be no other evidence of property or authority to sell from tiie true owner, will not enable the possessor to give good title. But if the owner intrusts to another not merely the possession of the property, but also written evidence over his own signature of title thereto, and of an uncondllinnal power of disposition over it, the case is vastly different." The following would seem to be the general rule as thus approved by the court : If the owner of a thing in action delivers it to an assignee for a special purpose, with a simple written assignment tliereof, even though absolute on the face, this is not enough to raise the estoppel ; but if, with this assignment, the owner gives a further writing containing " an unconditional power of disposition " over the thing in action, then the estoppel may be invoked. In Holbrook v. N. J. Zinc Co., 57 N. Y. 616, G22, G23, the doctrine of estoppel was applied to the corporation itself whose stock had been transferred in good faith, and in the usual manner, to the plaintiff. McNeil V. Tenth Nat. Bank, supra, and Lcitch V. Wells, 48 N. Y. 585, were held to be controlling ; and Ledwich v. McKim, 53 N. Y. 307, was said not to conflict in an3' manner. It is decided in Nevada that certificates of stock in the ordinary form are not negotiable instruments, so that wlien such certificates had been stolen and transferred in the customary manner to a bona fiile purchaser for value, the latter acquired no title as against the owner. Bercich v. Marye, 9 Nev. 812. EQUITIES BETWEEN ASSIGNOR AND ASSIGNEE. 195 poration coupon bonds of the ordinary form are negotiable. As the court did not pursue this course, it accomplished the same purpose b}^ resorting to the doctrine of estoppel ; and I repeat, that when confined to these peculiar forms of securities which had been made practically negotiable by the course of business, the judgment and its ratio decidendi do not affect the general principle in relation to the transfer of things in action which has been stated and illustrated in preceding paragraphs. But the same court has, in a still later case, gone far beyond both the conclusions and the reasoning of its judgment in McNeil v. Tenth National Bank, and has virtually obliterated the distinction be- tween negotiable and non-negotiable things in action, at least so far as the relations between assignors and assignees of them are concerned. The doctrine of estoppel, which had been used to protect the customary modes of transacting business with certifi- cates of stock, is now extended to all species of things in action, and tlie effect of an estoppel is declared to be produced from a mere assipimetit of the security^ absolute on its face, executed hy the original oivner, and delivered to his assignee. In short, when- ever the owner of a non-negotiable thing in action delivers the same to another person, and accompanies the delivery by an assignment thereof, absolute on its face, and this person transfers the same to a purchaser for value who relies upon the apparent ownership created by the written assignment, and has no notice of anything limiting that apparent title, the original owner is estopped from asserting as against such purchaser any equities existing between himself and his immediate assignee, and any interest or property in the security which he ma}^ have, notwith- standing the written transfer. The Court of Appeals, in reaching this conclusion, expressly overrules the decision made upon the facts involved in Bush v. Lathrop, but at the same time declares that it does not intend to shake the general doctrine controlling the transfer of non-negotiable things in action upon which that decision is based. It is plain, however, that the ancient and, as it was supposed, well-settled doctrine is substantially abrogated by this last application of the principle of estoppel. The estoppel is made to arise from a mere naked transfer in writing, absolute in form ; the rationale of the decision is the apparent ownership thus bestowed upon the assignee ; and these elements of the judgment will clearly apply to so many cases that things in action 196 CIVIL REMEDIES. are practically rendered negotiable in their nature as between the series of successive holders, — the assignors and assignees. This point being attained, it will be a short and easy step to apply the doctrine of estoppel to the debtor himself, — the obligor or promisor who utters the security. If negotiability is produced by means of estoppel between the assignor and assignee, arising from the fact and form of a transfer from one to another, by parity of reasoning the debtor may be regarded as estopped by the fact and form of his issuing the undertaking and delivering it to the first holder, and thus creating an apparent liability against himself. In short, there is exactly the same reason for holding the debtor estopped from denying his liability upon a written instrument which apparently creates an absolute liability, when that instrument has passed into the hands of a purchaser who has no notice of the actual relations between the original parties, as for holding an assignor estopped from denying the completeness of a transfer made by him absolute on the face. This result, if reached, would render all things in action practi- cally negotiable.^ § 162. As the result of adjudications of which the foregoing are examples, the rules of the law as established independently of the codes may be summed up in the following manner : (1) 1 Moore v. Metropolitan Nat. Bank, sistent with the reasoning of Denio J. in 55 N. Y. 41. Moore, the owner of a cer- Bush v. Lathrop, and with tlie decision tificate of indebtedness of $10,000, de- made on tlie facts of that case. Grover J. livered the same to Miller for a certain does not allude to tlie careful distinction special purpose, but not intending to drawn by Ilapallo J. between the circum- transfer any property therein ; in fact, stances of the two cases, nor his approval Miller was to procure the same to be dis- of the general doctrine and course of counted, and to account for the proceeds, reasoning contained in Judge Denio's or else return the certificate. Moore, opinion. Nor does Judge Grover make however, gave Miller the following writ- the slightest allusion to the narrow limits ing, indorsed on the instrument : " For placed by Rapallo J. upon the use of the value received, I hereby transfer, assign, estoppel ; namely, to those cases in which and set over to Isaac Miller the within- the assignor, by a written instrument over described amount, say ten thousand dol- his signature, confers not only the appa- iars. Levi Moore." Miller assigned the rent title, but the unconditional jioiivr of dis- certificate to the defendant for value, who position over the security. While the took it on tlie faith of this written assign- judgment of Rapallo J. in McNeil v. Tenth ment, without notice of the true relations Nat. Bank was guarded and cautious, and between Moore and Miller. The action eminently proper in respect to the pecu- was brought to recover possession of the liar class of securities, that of Grover J. certificate. The court held, per Grover J. is, I think, opposed to doctrines the most (pp. 46-40), that the case is controlled by elementary, and can only produce confu- that of McNeil v. Tenth Nat. Bank, and sion in a branch of the law which had that the judgment in the latter is incon- been settled for generations. SET-OFF AGAINST THE ASSIGNEE. 197 All defences, either legal or equitable, which existed in favor of the debtor himself against the original creditor at the time of the assignment, or of notice to him of the assignment, of a non- negotiable thing in action, avail to him against the assignee who seeks to enforce the demand against such debtor ; (2) When the owner and holder of a non-negotiable thing in action trans- fers it to an assignee for a special purpose — such as security for a loan, and the like — by an assignment absolute on its face, but as between himself and his assignee retains an interest in or claim upon the demand, and this assignee assumes to transfer the same absolutely to a second assignee who purchases in good faith without notice and for value, the first assignee in fact transfers no higher title than he possesses, and the second assignee takes the thing in action subject to the equities and claims of the original assignor ; but (3) in the State of New York a modifica- tion of this second rule has been introduced in very recent deci- sions, and in pursuance thereof, if the original owner accompanies the delivery of the thing in action with a written assignment thereof absolute in form, and therefore apparently vesting the complete ownership in his immediate assignee, an innocent pur- chaser for value from the latter is protected against any claims, demands, or equities existing in favor of the first assignor; the latter is estopped from asserting his true right and property in the security. This modification, which was at first confined to certificates of stock transferred by means of the customary blank assignment and power of attorney, has been extended to all things in action. § 163. What construction has been put by the courts upon the provision of the codes embod3dng and reaffirming these gen- eral rules ? I shall consider in the first place the effect of this provision upon the defence of set-off. No substantial change has been made in the rights of the several parties. Tlie assignee takes the demand assigned subject to all the rights which the debtor had acquired prior to the assignment, or prior to the time when notice was given, if there was an interval between the execution of the transfer and the notice ; but he cannot be pre- judiced by any new dealings between the original parties after notice of the assignment has been given to the debtor. When two opposing debts exist in a perfect condition at the same time, either party may insist upon a set-off. If, therefore, the holder of 198 CIVIL REMEDIES. such a claim already due and paj^able assign the same, and the debtor at the time of this transfer holds a similar claim against the assignor, whicli is also then due and payable, he may set off his debt against the demand in the hands of the assignee. If, however, the assignment is made before the opposing demand becomes mature, and the latter does not thus become actually due and payable until after the transfer, the debtor's right of set-off is destroyed by the mere fact of the assignment, and no notice thereof to him is necessary to produce that effect. The following special rule also exists under the peculiar circumstances mentioned. If an insolvent holder of a claim not 3'et matured assigns the same before maturity, and the debtor at the time of this transfer, holds a similar claim against the assignor, which is then due and payable, his right of set-off against the assignee, when the latter's cause of action arises, is preserved and protected. This latter doctrine is based upon considerations of equity, and is intended to prevent one party from losing his own demand on account of the insolvency of his immediate debtor, and from being at the same time compelled to pay the debt originally due from himself to that insolvent. These three rules existed prior to the codes, and have not been changed by the provisions of the statute under consideration.^ 1 Beckwith (■. Union Bank, N. Y. set-off. Frick v. White, 57 N. Y. 103. 211 ; Myers v. Davis, 22 N. Y. 480; Mar- Wliere the assignee of a judgment brought .tin V. Kunzniuller, 37 N. Y. 30G ; Blyden- an action in the nature of a creditor's suit Ijurgh V. Tiiayer, 3 Keyes, 293 ; 34 How. against tlie judgment debtor and others, Pr. 88; Watt i: Mayor, &c., 1 Sandf. 23; to subject certain equities to tlie hen of WeUs I'. Stewart, 3 Barb. 40 ; Ogden v. the judgment, and tiie debtor interposed Prentice, 33 Barb. 100; Adams v. Rodar- as a set-off a debt due liimself from the niel, 19 Ind. 339 ; Morrow's Assignees v. assignor — the judgment creditor — at the Briglit, 20 Mo. 298 ; Walker v. McKay, time of the assignment, it was held, in 2 Mete. (Ky.) 294; Roberts v. Carter, 38 Ohio, that the assignor was a necessary N. Y. 107 ; Williams v. Brown, 2 Keyes, party, and, in his absence, the set-off 486 ; Robinson v. Howes, 20 N. Y. 84 ; could not be passed upon and allowed. Mans i?. Goodman, 2 Hilt. 275; Merrill !;. Gilderslceve v. Burrows, 24 Ohio St. Green, 55 N. Y. 270, 274 ; Lathrop v. God- 204. When negotiable paper is trans- frey, G N. Y. Sup. Ct. 96. The claim set ferred after maturity, the maker has the up by the defendant must be a valid set- same right to avail himself of a claim off. In an action by the assignee of a against the assignor as a set-off that he liquidated demand arising out of con- would have if the demand assigned was tract, — a debt, — the defendant cannot not negotiable. Norton ?•. Foster, 12 Kans. interpose a claim against the assignor for 44,47,48; Leavenson?;. Lafontane,3 Kans. unliquidated damages resulting from the 523, 526. As further illustrations of the oreach of a contract, and thus defeat or text, sec Martin v. Pilsbury, 23 Minn, diminish the recovery. Such a defence is 175 ; Davis i;. Sutton, 23 id. 307 ; Davis r. not a counter-claim, and does not fall Neligh, 7 Neb. 84 ; Downing i;. Gibson, 53 within the prior statutory description of Iowa, 617 ; Chapman v. Plumer, 36 Wis. SET-OFF AGAINST THE ASSIGNEE. 199 § 1G4. The true extent and limitations of the doctrine will best be seen in its application to the facts of decided cases. On the 24th August, 1850, the firm of W. C. & A. A. Hunter, having on deposit in the Union Bank the sum of $3,600, made a general assignment to one Beckwith. At the time the bank was holder of a bill of exchange which was indorsed by the firm, and had been discounted by the bank for them. This bill fell due on the 27th of August, and, not being paid, the amount of it was charged against the firm in their account by the bank. On the next day, the 28th, the assignee for the first time notified the bank of the assignment, and demanded payment of the sum on deposit to the firm's credit, which was refused. The assignee brought a suit to recover the debt, and the bank set up the amount due on the bill of exchange as an offset. It was held by the Superior Court of New York City, and by the Court of Appeals, that the demand in favor of the bank could not be set off, as it was not an existing demand payable when the assignment was made ; and that no notice was necessary by the assignee to protect himself against such a defence. Notice is only necessary against subsequent acts and dealings of the debtor with an assignor, which might preju- dice the rights of the assignee, such as payment.^ In March, 1855, the firm of Watrous & Lawrence made a general assign- ment to one Mej'ers, having before that time sold goods to the defendants on credit, the price of which did not become due and payable until September, 1855. In February of the same year, W. & L. had ordered from the defendants a quantity of articles 262; Hart v. Honcliin, 50 Ind. 327; Heav- acts to have affected his rights." See eiiridge v. Mondy, 49 Ind. 434 ; Turner v. however, Smith v. Fox, 48 N. Y. 674, Campbell, 59 Ind. 279 ; Barlow v. Myers, which was an action by an assignee for 64 N. Y. 41, reversing 3 Hun, 720 ; 6 T. & the benefit of the creditors of one K., a C. 183 ; Dunning v. Leavitt, 85 N. Y. 30; private banker, brought on a note given Shipman /;. Lansing, 25 Hun, 290; Se}''- by defendant to R., and transferred to the mour «. Dunham,24 id.93 ; Taylor i". The plaintiff. At the time of the assignment Mayor, &c., 20 id. 292. defend.ant had an amount of money on 1 Beckwitli v. Union Bank, 9 N. Y. deposit with R., — more than sufficient 211,212. Johnson J. said :" Nor had the to pay the note; and this demand was bank any lien on the deposit of the held to be a good set-off against the note, Hunters which would have prevented on tlie authority of Smith v. Felton, 43 tlieir drawing out the whole balance of N. Y. 419. The claim made against the cash to their credit on the 24th of August, defendant, and the demand set up by him. This right passed to the plaintiff by the must both affect him in the same capa- assignment : no notice was necessary to citj* ; thus, when the defendant is sued for protect that right in the assignee, except a personal debt, he cannot interpose as a only that, in default of notice, the bank set-off a demand due him as an executor, might have so dealt as by its subsequent Barlow v. Myers, G N. Y. Sup. Ct. 183. 200 CrV'IL REMEDIES. — patent churns — to be manufactured and delivered at a certain agreed price. There had Leen such mutual dealings between the parties before. In May, 1855, the defendants completed the churns, and tendered them to the assignee, who declined to receive them. The assignee brought an action for the price of the goods when it became due in September, and the defendants insisted upon the value of the churns as an offset. The defence of offset was rejected. The court held that the situation of the parties at the date of the assignment must determine the question, and unless a right of offset existed then, it could not arise afterwards. It did not exist then, because neither of the demands had ma- tured ; but it was enough that the defendant's claim was not yet payable, even if the one assigned was presently due.^ If the de- fendant's demand liad become mature at the time of the assign- ment, it could undoubtedly have been set off under the equitable rule before stated, on account of the insolvency of W. & L. A firm made a general assignment, having at the time a claim due and payable against the defendants. The assignee brings an action upon the demand, and the defendants set up a note of the assignors which they held at the time of the assignment, but which did not fall due until after that date. The attempted set- off was rejected. " An allowance to a party by way of set-off is 1 Myers v. Davis, 22 N. Y. 489, 490, work, tlic demand against the defendants per Denio J. After stating that the code liad become tlie property of the plaintiff has not made any change in the substan- as trustee for the creditors of the insolvent tial rights of the parties, he proceeds : debtors. The rule of law applicable to " An assignee of a dwse in action, who has the case is stated in 2 K. S. (of N. Y.) p. given notice of the assignment, is not 354, § 18 (8)." ..." The rule is that, when liable to be prejudiced by any new deal- such claims exist in a perfect condition at ings between tlie original parties to the the same time, either party may insist contract; but he takes the contract as- upon a set-off. So, wlien one claiming a signed, subject to all tlie rights which tlie set-off has a demand against the other, debtor had acquired prior to the assign- presently payable, and the otlier party is nient, or to the time notice was given of insolvent, the former may claim to have it, wiien there is an interval between the the set-off made, though the demand of execution of the transfer and the notice, his adversary against him has not become . . . If the defendants had completed [the payable. But if, before the demand of manufacture] before the assignment, the the party claiming the set-off becomes right to an assignment would have at- mature, the opposite claim has been as- tached,ofwliicIi the defendants would not signed, whether the assignment carries liave been deprived by any act of W. & the legal or only the equitable title, the L. ; but, unfortunately for the defendants, right of set-off no longer exists. This is no debt had arisen in their favor when the present case ; and the set-off cannot, W. & L. failed and made their assign- in my opinion, be claimed ;" citing Chance ment ; and when a debt afterwards came v. Isaacs, 5 Paige, 6'J2 ; Bradley v. Angell, into existence by the completion of the 3 N. Y. 475, 493. SET-OFF AGAINST THE ASSIGNEE. 201 always founded on an existinc/ dcmund in prcesenti, and not on one that may be claimed iufuturo.^'^ In an action by an assignee for the benefit of creditors, the defendant relied upon a judgment for costs recovered by himself against the assignor after the making of the transfer. Tliis set-off was not admitted, and it was decided that no notice of the assignment was necessary to cut off such a defence.2 And when the defendants, in an action brought upon an assigned demand, alleged payments which they had made, subsequent to the assignment, as sureties for the assignor upon a liability existing prior to, and at the time thereof, this set-off was overruled on the same principle ; for, although there was a lia- bility which might result in a debt, there was no existing debt until the payment had actually been made;^ In another action by an assignee the defendant insisted that a similar set-off arising from his payment as surety for the assignor, made under the same circumstances as the last, should be allowed as within the equi- table rule on account of the assignor's insolvenc}-. The set-off was rejected, however, because there was no existing indebted- ness in favor of the defendant against the assignor, at the date of the assignment. Such a present indebtedness is indispensable, whether the case is to be governed by the ordinary rule, or whether the equitable doctrine based upon the assignor's insol- vency is relied upon.^ When a negotiable promissory note is assigned before it becomes due, the maker thereof cannot offset against the assignee a claim existing against the original payee and assignor of tlie note, although the assignee have notice of such claim at and before the time of the transfer to him; there is no case for the set-off between the original parties at the date of the assignment because the demands are not then matured, and 1 Martin v. Kunzmuller, 37 N. Y. ment of his own note, had at tliat time 396 ; Watt v. The Mayor, &c., 1 Sandf. no available set-off or defence against it. 23 ; Wells v. Stewart, 8 Barb. 40. The mere fact that he was surety for the 2 Ogden f. Prentice, 33 Barb. 160. assignor on another note, and that lie was 3 Adams v. Kodarmel, 19 Ind. 339. insolvent, would not constitute an equita- * Walker v. McKay, 2 Mete. (Ky.) ble defence to an action on his note either 294, per Simpson C. J. " The doctrine in the name of the assignor or the as- that a debt or demand cannot be used as signee." See, however, Morrow's As- a set-off until it becomes due, and that, signees v. Bright, 20 Mo. 298, in which, unless it be due before notice of the as- upon the same facts, the set-off was al- signment, it is not available against the lowed, the court plainly mistaking or assignee, is fully established by adjudged misconceiving the extent and limitations cases. . . . The appellant, not having of the equitable doctrine flowing from the paid the debt for which he was surety at insolvency of the assignors, the time he was notified of the assign- 202 CIVIL REMEDIES. the notice given to the assignee is not of anj^ existing legal de- fence. ^ There being no possibility of setting off a claim of damages arising from a tort or fraud against a demand growing out of contract, if two such opposing claims exist and are in suit, and the creditor in the contract assigns his cause of action, which is after- wards merged in a judgment in favor of the assignee, and subse- quently to that assignment the opposing party — the debtor in the contract — obtains a judgment for the damages in his action on the tort, the latter is not entitled to set off this judgment against the one recovered against himself by the assignee. No rights of set-off existed at the date of the transfer, and none could spring up after that time.^ § 165. It is possible that a right of set-off may be available at the time an action is brought, although at some prior period it was suspended, as is well illustrated by the following case : On the 29th of August the Hollister Bank discounted for one Monteath a sight draft on New York drawn by him, and passed the proceeds to his credit as a deposit. He did not draw them out. This draft was dishonored on presentment. On the 31st the bank failed, and in the course of time Robinson was appointed its receiver. On the 21st of September Monteath assigned to the Howes his claim against the bank for the sum on deposit, the same being partly or wholly the proceeds of the said draft. At the time of the assignment the draft in question was held by parties in New York, to whom the bank had transferred it as collateral security ; and, of course, during the interval in which the draft was thus held, the bank could have had no possible set-off by means of it against the demand of Monteath for his deposit, either made by him or by his assignee. But before any action was brought, the bank again became owner of the draft. An action was afterwards commenced by the receiver to recover an indeljtedness due to the bank from the Howes ; they set up 1 Williams v. Brown, 2 Keyes, 486. 2 Roberts v. Carter, .38 N. Y. 107. See also Harlow v. Myers, G X. Y. Sup. WoodnifT J. said, by way of a dictum Ct. 183. But, where negotiable paper is (p. 110), that if insolvency of the as- assigned after maturity, the maker's signor had been proved, still the right of rights of set-ofF arc the same as though set-off would not have arisen, since at the demand assigned was not negotiable, the time of the transfer no debt existed Norton V. Foster, 12 Kans. 44, 47, 48 ; which could be set off. See Martin v. Leavc-nson v. Lafontanc, 3 Kans. 523 ; Kichardson, 68 N. C. 255, and cases Harris v. Burwell, 05 N. C. 584; contra, cited. Richards v. Darly, 34 Iowa, 427, 429. SET-OFF AGAINST THE ASSIGNEE. 203 the claim of Monteath for his deposit assigned to them, as above stated ; and the receiver in fact opposed the demand of the bank against Monteath upon the dishonored draft as a set-off to the defendants' set-off. Although the New York Court of Appeals held that the debt against the bank assigned to the defendants by Monteath should be disallowed, yet their entire reasoning shows that it was disallowed, not because it would not in itself have been a valid set-ojff, but because its effect was entirely destro3^ed by the counter set-off of the draft in the hands of the bank. If the bank had retained the continuous ownership of the draft, as soon as it was dishonored it would have been a good claim against Monteath, and would have extinguished, in whole or in part, his claim for the money due on deposit ; this set-off, existing at the date of the assignment to the defendants, would have been equally available against them ; and as the bank be- came owner of the draft before the action was brought, its origi- nal right revived with the same force and to the same extent as though the draft had never been out of its control.^ § 166. It is held, in California, that a demand against an as- signor, which Avas obtained by the debtor or accrued in his favor before notice of the assignment, although in fact subsequent to the assignment itself, may be set off against the cause of action in the hands of the assignee.^ This ruling, however, is clearly opposed to the doctrine of the New York cases already quoted, and to the theory of set-off generally adopted. Notice may be required in order to cut off other defences ; but a set-off, accord- ing to the accepted rule, must exist in the form of a debt then due and payable to the debtor at the date of the transfer. A note, payable on demand, with or without interest, transferred at a considerable interval of time after its date, is taken and held b}' the assignee, subject to all defences existing in favor of the maker against the payee at the time of the transfer; in other words, such a note is transferred after maturity.^ § 167. When notice to the debtor is necessary to a complete protection of the assignee against subsequent transactions be- ^ Robinson v. Howes, 20 N. Y. 84. in the New York courts upon the ques- ^ McCabe v. Grey, 20 Cal. 509. tion whether notes on demand with interest 3 Herrick v. Woolverton, 41 N. Y. are continuing securities, or whether, hke 581, reversing s. c. 42 Barb. 50. This such notes without interest, they become case decides nothing new in tlie law of due at once. set-off; it simply ends a long controversy 204 CIVIL REMEDIES. tween the assignor and the debtor, such as payment, release, and the like, an actual notice is not indispensable. Such information or knowledge as would be sufficient to put any reasonable man upon the inquiry, when an inquiry reasonably followed up would have led to an ascertaining of the truth, is equally effective to protect the assignee ; in short, the equitable rule in reference to pureliasers of land applies to the assignees of things in action.^ In Ohio, a set-off against the person beneficially interested, for whose benefit the suit is prosecuted, may be interposed when the action is brought by one who is, within the meaning of the code, a trustee of an express trust, and there has been no assignment at all. Thus, w^here a promise is made to A. for the benefit of B., and the former, in pursuance of the express permission of the code, brings the action in his own name, a set-off' existing against B., who is the real party in interest, the beneficiary for whose behalf the contract was made and the suit is maintained, may be pleaded, and, if proved, will be allowed in total or partial bar of the recovery.^ "While in actions prosecuted by assignees the de- fendant can always avail himself of any existing valid set-off, and sometimes counter-claim, as a defence, he cannot recover a judg- ment against the assignee for the excess of an}^ of his claim over the amount of debt established by the plaintiff; as against the assignee, a set-off and a counter-claim of the same nature — that is, a right of action which w^ould be a counter-claim if prosecuted against the original assignor — can only be used defensively, and can do no more than defeat the action entirely.^ § 168. Many difficulties have arisen, and many cases have been decided, growing out of proceedings to wind up insolvent corpora- tions, and especially insolvent insurance companies ; but, as the questions generally turned upon particular provisions of charters, or of statutes regulating such proceedings, little or no aid can be obtained from these decisions in construing the section of the code under consideration. A portion of these companies were mutual, in which every person assured became at once a corpora- tor, so that in any business transaction between himself and the company he would necessarily occupy both the position of cred- 1 Wilkins v. Battcrman, 4 Barb. 47 ; * Leavenson v. Lafontane, 3 Kans. 523, Williamson i-. Brown, lo N. Y. 354. 525; Loomis v. Eagle Bank, 10 Ohio St. 2 Miller & Co. v. Florer, 15 Oliio St. 327; Casad v. Hughes, '27 Lid. 141. 148, 151. SET-OFF AGAINST THE ASSIGNEE. 205 itor and of debtor. This double relation is destructive to any power on his part of invoking the doctrine of set-off. Other companies were stock corporations, and, in addition to the rules as to set-off common to all creditors and debtors, there are special statutory provisions in many States regulating the winding up of these bodies, which greatly enlarge the scope of set-off. The adjudications made in the settlement of such corporations, and the particular rules applicable to them adopted by the courts, have, therefore, little or no connection with the subject-matter of the present discussion. In the case of a mutual company there is no room for any set-off, as has been expressly deter- mined. A marine insurance company having become insolvent, and a receiver of its affairs appointed, he brought an action on certain notes given by the maker thereof for the premium of sev- eral policies of insurance. A loss had occurred on one of these policies which became due and payable before any of the notes fell due, and before the appointment of the receiver and the assignment to him. There was an interval of time, then, both before the appointment of the receiver and afterwards, during which the company first and the receiver subsequently were holders of a claim against the defendant not yet matured, while the defendant was holder of a claim against the company which was due and payable. Upon the general doctrine as heretofore stated in the text, the maker of these premium notes could not have had an available set-off against the assignee, because at the date of the transfer both demands had not matured ; but, as his own claim was then due and payable, the equitable rule founded upon the insolvency of the assignor would have relieved him. The set-off was entirely rejected, however, on the ground that the company was mutual, the defendant being a corporator, and both a debtor and a creditor.^ In other cases brought by the receiver of an insolvent insurance company, not mutual, upon premium notes, claims by the makers of the notes on account of losses which occurred previous to the appointment of the receiver, but not adjusted so as to become actually payable until after the transfer to him, have been allowed as offsets, not, however, by virtue of the general law as to offsets, — it being held that they 1 Lawrence v. Nelson, 21 N. Y. 158. the set-off would have been allowed a3 It was conceded, by way of a dictum, that stated iu the text. if the corporation had not been mutual, 206 CIVIL EEMEDIES. did not fall within the settled rules, — but by virtue of certain provisions contained in the statute relating to insolvent corpora- tions \A'hich describe such claims as "mutual credits, " and direct them to be set o£f.^ § 1G9. When an executor or administrator sues individually on a note given, or a promise made to him as such personal represent- ative for a debt owing to the deceased at the time of his death, it is the rule in New York that the defendant cannot set off claims due to himself from such decedent, although accruing prior to the death, " on the ground that the plaintiff's demand [that actu- ally sued upon] arose after the death of the testator ; and in such a case, no set-off can be received, notwithstanding it existed at the time of the death of the deceased." '^ § 170, The foregoing cases and statements relate to the special defence of set-off as against the assignee. Exactly the same rules apply to every other species of defence, with the single modifica- tion that, in respect of many such defences, the point of time whicli limits the effect or cuts off the availability of the defence is not the date of the assignment, but the date of the notice thereof, actual or implied, which is given to the debtor. If the debtor is not notified actually or impliedly of the assignment, it is possible that many transactions between himself and the assignor, done in good faith on his part, may have the same effect in dis- charging his indebtedness as if the demand had not been as- signed, — such as payment to or release b}^ the original creditor, the assignor. But no transaction can have this effect if entered into subsequently to a notice of the assignment given to the debtor, or to such information received by him as in law amounts to the same thing as actual notice. Thus, if after a notice to the debtor that the demand against him is assigned, he make a pay- ment to the assignor, he cannot rely upon it as a defence par- tial or total to an action brought by the assignee to enforce the claim.^ The scope of this work does not require nor even permit that I should discuss the defence of set-off, or any other particular defence, in an exhaustive manner. The sole purpose of this sec- 1 Osgood V. De Groot, 36 N. Y. 348. Evans, 8 Wend. 530 ; Mercein v. Smith, See, however, Osgood r. Ogden, 4 Keyes, 2 Hill, 210 ; 2 R. S. 279. 70. 8 Field v. The Mayor, &c. of N. Y., 6 2 Merritt w. Seaman, 6 N. Y. 168, cit- N. Y. 179. ing Root y. Taylor, 20 John. 137 ; Fry v. TRUSTEE OF AN EXPRESS TRUST. 207 tion is to construe and interpret the provision, found in almost the same language in all the State codes of procedure, and to ascertain what change, if any, that provision had wrought in the pre-existing rules of the law in relation primarily to parties, and incidentally to the availability of defences where the party plain- ti£E is an assignee of a thing in action. SECTION FIFTH. WHEN A TRUSTEE OF AN EXPRESS TRUST MAY SUE. § 171. There are two forms of the statutory provision, which differ, however, very slightly. The first is : " An executor, an administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the per- son for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be con- strued to include a person with whom or in whose name a contract is made for the benefit of another." ^ The second form is a little more special : " 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." ^ The onlj- difficulties of interpreta- tion presented by this section are the determining with exactness what persons are embraced within the three classes, described as " trustees of an express trust," "persons with whom or in whose name a contract is made for the benefit of another," and " per- sons expressly authorized by statute to sue." It is plain that there are substantially three classes. The second and better form of the provision actually separates them, and does not represent one as a subdivision of the other. Tiie first form in terms speaks 1 N. Y. § 113 (449) ; Ind. § 4 ; Minn. Wash. § 4 ; Ida. § 6 ; Wyo. § 34 ; Mont. § 28 ; Cal. § 369 ; Mo. art. 1, § 3 ; Wis. § 6. ch. 122, § 14 ; Florida, § 64 ; South Caro- 2 Ohio, § 27 ; Kansas, § 28 ; Iowa, lina, § 136 ; Oregon, § 29 ; Nevada, § 6 ; § 2644 ; Nebraska, § 30 ; Kentucky, § 33. Dacota, § 66 ; North Carolina, § 57 ; 208 CIVIL REMEDIES. of " the person with whom or in whose name a contract is made for the benefit of another " as an instance or individual of the wider and more inclusive group, " trustees of an express trust." It should be carefully noticed, however, that these two expres- sions are not stated to be synonymous ; the former is not given as a definition of the latter. The section does not read, " a trustee of an express trust shall be construed to mean a person with whom or in whose name a contract is made for the benefit of another ; " but simply that the latter shall be regarded as one species of the genus. There is here no limitation, but rather an extension, of the meaning, and the clause of course recognizes other kinds of trustees besides the party to the special form of contract, who is not very happily termed a " trustee." The sec- tion of the New York code, when originally passed, contained but the first sentence as it now stands. Some doubt arose as to its meaning, and a judicial decision having held that the phrase embraced, among others, a person with whom or in whose name a contract is made for the benefit of another, the legislature, to remove all possibility of doubt, added this judicial language as an explanatory clause. The two forms of the provision, although their phraseology differs somewhat, mean exactly the same thing, and establish exactly the same rule. As these two phrases, whe- ther they be regarded as separate, or one as partially explanatory of the other, are the most comprehensive ones in the section, and present the main difficulties of construction, I shall discuss them first in order, and shall endeavor to ascertain wliat particular classes of persons were intended to be described by them. This discussion will consist in discovering, if possible, some general principle of interpretation by which to test each particular case, and in stating the instances which have been definitely passed upon by the courts. § 172. What is a " trustee of an exj^ress trust " ? The section uses the term in its most general sense without limitation, so that when its full legal signification is ascertained, that must be its meaning in this connection. If the legislature has said, as in New York and other States, that, in addition to its generally accepted technical import, it shall also include certain persons who are not usually, nor perhaps with strict accuracy, denomiiiated "trustees," this exercise of the legislative power within the domain of defini- tion does not change, certainly does not lessen, its signification, TKUSTEE OF AN EXPRESS TRUST. 209 as it stands without the explanatory comment. In Ohio, and in several of the States, the phrase is used alone, but accompanied b}' the clause which is descriptive of another class, and is not a mere partial explanation. We must find the true legal definition of " trustees of an express trust," and add to this the " persons with whom or in whose name contracts are made for the benefit of others ;" the combined result will be the entire class intended by the legislature. It is obvious that the trust must be " ex- press," in contradistinction to implied. In the large number of instances where a trust is raised by implication of law from the acts, circumstances, or relations of the parties, the trustee is certainly not embraced within the language of the provision. An express trust assumes an intention of the parties to create that relation or position, and a direct act of the parties by which it is created in accordance with such intention, outside of the mere operation of the law. In the case of an implied trust, the law, for the purpose of doing justice, and usually for the purpose of working out some equitable remedy, lays hold of the prior situa- tion, acts, or circumstances of the parties, declares that a trust arises therefrom, and imposes the quality of trustee upon one, and of beneficiary upon another, in a manner and with a result that are often the furthest possible from their actual design. In an express trust the parties intend such a relation between them- selves, carry out their intention b}' suitable words, and the law confirms and accomplishes the object which they had in view. An express trust primarily assumes three parties : the one who by proper language, creates, grants, confei's, or declares the trust ; the second who is the recipient of the authority thus con- ferred ; and the third for whose benefit the authority is received and held. It is true that in many instances the first-named par- ties are actually but one person ; that is, the same individual de- clares, confers, receives, and holds the authority for the benefit of another ; but the theory of the transaction is preserved unaltered, for the single person who creates and holds the authority acts in a double capacity, and thus takes the place of two persons. It is impossible, however, to conceive of an express trust as a legal transaction or condition, without assuming the prior intention, and the express language by which this intention is effected, and the trust created resting upon one as the trustee for the benefit of a second as the beneficiary ; and, except as every grant, transfer, 210 CIVIL REMEDIES. or delegation of authority and power is in a certain broad sense a contract, the notion of a contract is not essential to our concep- tion of an express trust. The authority may be conferred by the public acting through governmental machinery, as in the case of officers, or by the intervention of courts, as in the cases of ad- ministrators, executors, receivers, and the like ; or by private persons, as in innumerable instances of trusts relating to real or personal property ; but there must be the intent to accomplish that very result, and this intent must be expressed by language or by some process of delegation which the law regards as an equivalent. Furthermore, in its accurate legal signification, a trust implies something which is the subject thereof. Although the word may have a more extensive meaning in its popular use, so that a trust may be spoken of where the trustee is simply clothed with a power to do some personal act unconnected with any prop- erty in which he has an interest or over which he has a control, yet this is not its legal import. An illustration of this legal notion of a trustee ma}^ be seen in the case of a guardian over the person alone of his ward, without any interest in or power over his estate, or the committee of the person of a lunatic. Such a guardian or committee, although possessing a power to be exer- cised for the benefit of another, is not a trustee ; and the term, when applied to him, could be used only in a popular and not a legal sense. Such a guardian or committee would not therefore, b}' virtue merely of the permission granted in the provision of the statute under examination, be entitled to sue in his own name as a trustee of an express trust. In the light of this analysis of the expression as a term of legal import, it is plain that " a per- son with whom or in whose name a contract is made for the ben- efit of another," is not necessarily a trustee. He may l)e ; and whether he is or is not must depend entireh" upon the nature and subject-matter of the contract itself. The contract may be of such a kind, stipulating concerning property in such a manner, that the contracting party will be made a trustee. On the other hand, it may be of such a kind, having no reference perhaps to property, or stipulating for personal acts alone, that the contract- ing part}' will not be a trustee in any proper sense of the word, but will be at most an agent of the person beneficially interested. There are numerous instances, therefore, in which an agent, who enters into an agreement for either a known or for an unknown TRUSTEE OF AN EXPRESS TRUST. 211 principal, is permitted, in accordance with the particular clause under consideration, to sue in his own name. § 173. I shall proceed to show, in the first place, how far the foregoing descrii^tion is sustained by judicial authority. Few cases have attempted to define the phrase, " trustee of an express trust," in any comprehensive manner, for the courts have in most cases been content with determining whether the particular in- stance before them fell within the term. The following defini- tions or descriptions, however, have been given : " An express trust is simply a trust created by the direct and positive acts of the parties, by some writing, or deed, or will. And it is to be observed, in reference to § 4 of the code [of Indiana], that it does not assume to define the meaning of the term ' trustee of an express trust ' in its general sense ; it simply declares that these Avords, within the meaning of the section, ' shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.' Evidently this provision was not intended to limit the meaning of the general term, 'express trust,' or to confine the operation of the statute to the particular class of cases referred to, but rather to enlarge its sense by in- cluding also that class within it." ^ In another case it was said: " In order to constitute a trustee of an express trust, as I under- stand the statute, there must be some express agreement to that effect, or something which in law is equivalent to such an agree- ment. The case of factors and mercantile agents may or may not constitute an exception under the custom and usage of merchants. But in every other case the trust must, I think, be expressed by some agreement of the parties, not necessarily, perhaps, in writ- ing, but either written or verbal, according to the nature of the transaction. In this case no agreement is shown that the plain- tiff was to take or hold as trustee, and that he is a trustee results merely from other circumstances. It is implied from the fact of partnership, and from the fact that the plaintiff received the assignment on account of a debt due the firm. If it is not a case purely of implied trust, as distinguished from an express trust, then I am at loss to conceive of one ; and to hold the plaintiff to be a trustee of an express trust would, in my judgment, be a palpable disregard of the statute, and a violation of the intent of » Weaver v. Trustees of tlie Wabash, &c.. Canal Co., 28 Ind. 112, 110. 212 CIVIL REMEDIES. the legislature." ^ In a case where a contract in the nature of a lease was effected by a person describing himself in the instru- ment as agent of the owners, but who had no interest whatever in the premises leased, and did not execute the instrument, and to whom no promise was made as the lessor, it was held that he could not maintain an action for the rent or for possession of the land forfeited by non-payment of the rent. He could not sue as the " person with whom, or in whose name, a contract is made for the benefit of another," because no promise at all was made to him, and he was not a " trustee of an express trust." The court said : " One who contracts merely as the agent of another, and has no personal interest in the contract, is not the trustee of an express trust within the meaning of the statute, and cannot, under the code, sue upon such contract in his own name." Of course this last expression must be taken in connection with the facts of the case ; namely, that no promise was made to the plaintiff individuall}'.^ § 174. The nature of an express trust, and the classes of per- sons embraced within the statutory phrases in question, were de- termined, upon great consideration, by the New York Court of Appeals, in the leading case of Considerant v. Brisbane.^ " The 1 Kobbins v. Deverill, 20 Wis. 142, per Fuller and M. Kawlings : I, B. F. Fuller, Di.xon, C. .J. This was an action by the agent for Sarah Floyd's heirs' property, plaintiff as assignee of P. & W. The do agree to rent [certain premises] to M. assignment was in writing, but was taken Rawlings for [a certain rent], and on the on account of a debt due from P. & failure on the part of the said M. Rawlings W. to the firm of R. & L., which con- to pay said rent on the first day of every sisted of the plaintiff and the two month in advance, then it is hereby others, with an understanding that P. agreed between B. F. Fuller, landlord, & W. were not to be credited on their and M. Rawlings, tenant, that the above debt to R. & L. until the money was col- contract is at an end, and B. F. Fuller lected. Dixon C. J. said : " The demand shall be entitled to take possession of said was transferred to the plaintiff alone by property." The complaint alleged rent words of absolute assignment, no trust unpaid, and demanded possession and the being expressrd. . . . Upon these facts the amount of rent due. The court said : plaintiff cannot recover. He is not the " It will be observed that the complaint real party in interest, nor the trustee of does not assert any claim of title in an express trust, within the meaning of Fuller. The contract is not signed by the statute. He is not a trustee of an Fuller, and does not, in express terms, express trust, because no such trust ap- contain a promise to pay rent to liim. It pears from the assignment, and none is describes him as agent of the property, shown to exist between himself and his and expressly states that it belongs to the copartners by virtue of any other instru- heirs of S. Floyd. We do not think the ment." He then adds the remark quoted facts constitute Fuller a trustee of an ex- in the text. press trust," adding the language quoted '^ Rawlings v. Fuller, ?,\ Ind. 2.05. in the te.xt. Fuller sued on the following agreement : 8 Considerant r. Brisbane, 22 N. Y. " Articles of agreement between B. F. 389, 395, per Wright J. As to action by TRUSTEE OF AN EXPRESS TRUST. 213 term ' trustee of an express trust ' had acquired a technical and statutory meaning. Express trusts, at least after the time of the adoption of the [New York] Revised Statutes, were defined to be trusts created by the direct and positive acts of the parties, by some writing or deed, or will ; and the Revised Statutes had abolished all express trusts except those therein enumerated which related to land. If this section (§ 113 [449]) of the code was to be restricted and limited to those enumerated express trusts, the practical inconvenience arising from making the beneficial interest the sole test of the right to sue, and which that section (§ 113) was intended to obviate, would continue to exist in a large class of formal and informal trusts. Accordingly, in 1851, the section was amended by adding the provision that ' 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.' It is to be observed that there is no attempt to define the meaning of the term ' trus- tee of an express trust ' in its general sense ; but the statutory declaration is that these words ' shall be construed to include a person,' &c. The counsel for the respondent insists that the sole intention of the legislature in amending the section was to remove a doubt that had been expressed, whether a factor or other agent, who had at common law a right of action on a contract made for the benefit of his principal by reason of his legal inter- est in the contract, was by the code deprived of that right. But no such limited intention can be inferred from the words of the statute. Indeed, it is only by a liberal construction of the section that the case of a contract by a factor (an individual contract) can be brought within it at all. It is intended manifestly to embrace, not only formal trusts declared by deed inter partes, but all cases in which a person acting in behalf of a third party enters into a written express contract with another, either in his individual name, without description, or in his own name ex- pressly, in trust for, or on behalf of, or for the benefit of, another, b}' whatever form of expression such trust may be declared. It includes not only a person with whom, but one in whose name, a trustees of an express trust, see also 36 id. 375 ; Brooks v. Harris, 42 id. 177 ; Presb. Soc. of Knoxboro v. Beach, 8 Hun, Wiley v. Starbuck, 44 id. 298 ; Washing- 644 ; Heavenridge v. Mondy, 49 Ind. 434 ; ton Townp. v. Bonney, 45 id. 77. 34 id. 28 ; North W. Conference v. Myers, 214 CIVIL KEMEDIES. contract is made for the benefit of another." These definitions and descriptions of the term fully sustain the conclusions reached in the preceding paragraph as to the legal meaning of the phrase "trustee of an express trust." It is abundantly settled that an agent cannot sue in his own name to enforce an implied liability to his principal ; if by any possibility he should be a trustee under such circumstances, he would not be the trustee of an express trust. ^ § 175. Having thus attempted to arrive at a general definition of the term, I shall proceed to consider the cases which are em- braced within it, and shall take at first those in which a " person with whom, or in whose name, a contract is made for the benefit of another " has sued in his own name. It is fully established by numerous decisions that when a contract is entered into expressly with an agent in his own name, the promise being made directly to him, although it is known that he is acting for a principal, and even although the principal and his beneficial interest in the agreement are fully disclosed and stipulated for in the very instru- ment itself, the agent in such case is described by the language of the statute, and may maintain an action upon the contract in his own name without joining the person thus beneficially interested.^ The following are particular instances, or examples ^ Palmer v. Fort Plain, &c. Plank R. Co., defendant applied to the plaintiff for stock 11 N. Y. 370, o90, per Sclden J. " There is in said corporation, and authorized the no covenant or agreement running to tiiese plaintiff to subscribe in his name for officers in terms. They, as agents of the such stock to the amount of •'$10,000, and, town, convey the right to use the high- in payment of the subscription, gave way upon a certain condition. It is plaintiff two notes, each in the following virtually the act of the town through form: "New York, March 1, 1855. On them. If an implied covenant arises upon the first day of July, 1855, I promise to tiie instrument, it is a covenant with the pay V. Considerant, executive agent of town, and must be enforced by, and in the the company Bureau, Guillon, Goden, & name of, the town." Ruckman v. Pitcher, Co. the sum of §5,000, for which I am to 20 N. Y. 9. " The agent may, in many receive stock of said company known as cases, sue upon express contracts, made premium stock, to the amount of .$5,000, with liimself by name. . . . Rut this im- value received. A. Brisbane." The plied duty or assuinj)sit arises only in plaintiff alleged that lie had entered de- favor of those to whom the money in fact fendant's name as a subscriber; averred belonged, and therefore, cannot be en- a tender of the stock and a refusal to ac- forccd in the name of another person to cept the same ; and sued in his own name whom the obligation is not due." on the notes. The Court of Appeals held 2 Considerant v. Brisbane, 22 N. Y. tliat he could maintain the action. The 389, reversing s. c. 2 Bosw. 471. The judgment of Wright J. is an exhaustive plaintiff was agent for a foreign corpora- discussion of the whole subject. Denio.J. tion which did business under the name dissented, but not from tlie general rea- of " Bureau, Guillon, Goden, &Co." Tlie soning as to the true interpretation of the TRUSTEE OF AN EXPRESS TRUST. 215 of particular classes of cases, in which an agent has been per- mitted to sue, or may always sue, in his own name, because the contract is made with him directl}-, although on behalf of a known principal: on a sealed lease between the plaintiff, as agent for the owner, of the first part, and the defendant as the lessee ;^ on a sealed contract between plaintiff and defendant, the plaijitiff describing himself as agent for his sisters, and stipulating that they should act in defendant's theatre at specified wages, which the latter covenanted to pay, the action being brought for such wages ; ^ where the plaintiff, being the holder of the legal title to certain land, which he held, however, merely for the benefit of a married woman, was induced, by false representa- code. His dissent was based entirely upon a construction of tlie notes sued upon. He insisted tliat the promise in tiiese notes was, in fact, made to tlie com- pany, and not to the agent ; and so tlie case did not fall within the terms of the statutory provision. Rowland v. Phalen, 1 Bosw. 43. Plaintilf sued on a contract in which lie was describeil as " acting on behalf of I. S. and others," and stipula- tions were made \)y and with him. Chel- tenham Fire-brick Co. v. Cook. 44 Mo. 29. The defendants executed a bond, wherein they bound themselves " to pay the said Cheltenham Fire-brick Co. for tlieir own use and for the use of Evans and Howard, respectively," certain moneys under certain conditions. The company sued, alleging moneys due to it and also to Evans and Howard. Wright v. Tinsley, 30 Mo. 389. An agreement was entered into between Wright, the plaintiff, for the benefit of Mrs. Dawson, his daughter, and Tinsley, the defendant. " Wright obviously comes literally within tliis definition, and is the proper party plain- tiff." Weaver r. Trustees of the Wabash, &c. Canal Co., 23 Ind. 112; Rice v. Savery, 22 Iowa, 470, in which it was held that cither the agent or the benefi- ciary might sue. 8ee supni, § 140. Win- ters 1-. Rush, 34 Cal. 136. Action by Winters on the following note : " Twelve months after date I promi.se to pay W. M. Winters, or any authorized agent of tlie Pacific Methodist College, the sum of $1,150, for the endowment of said college." The court held the action to be properly brought in the name of the plaintiff, and approved of Considerant v. Brisbane. Ord V. McKee, 5 Cal. 515. Notes were given by defendant to " James L. Ord, agent of W. H. McKee, for the price of land owned by McKee, and sold to the defendant ; and a mortgage to secure the notes was given back directly to McKee. The action is by Ord to foreclose the mortgage. Held, that Ord could sue on the notes ; and, as the mortgage is a mere security for the payment of the notes and an incident of the debt, he could maintain the action to foreclose. Scantlin v. Allison, 12 Kans. 85, 88. A note was, by consent of all the persons interested, given to one who held it in trust for others. An action by tliis payee alone, witliout joining the beneficiaries, was sustained. And where A. was joint- ly interested with others in a claim, and made a contract in his own name witliB., by which the latter agreed to collect the same, and account to him for the pro- ceeds, he was permitted to maintain an action against B. without joining the others as co-plaintiffs. Noe v. Christie, 51 N. Y. 270, 274. In Hubbell v. Med- bury, 53 N. Y. 98, the provision of the code was held to be permissive only, and not to prohibit an action by the bene- ficiary, even without the trustee. And see Presb. Soc. v. Beach, 8 Hun, 644 ; People V. Slocum, 1 Idaho, (52 ; Thomp- son V. Fargo, 63 N. Y. 479 ; 45 id. 188. 1 Morgan v. Reid, 7 Abb. Pr. 215. 2 Nelson v. Nixon, 13 Abb. Pr. 104. 216 CIVIL REMEDIES. tions, to execute a mortgage thereon, supposing it to be for her benefit and at her request, but in fact without any consideration paid to himself or to her, brought an action in his own name to restrain a foreclosure of the mortgage ; ^ in an action on a policy of marine insurance " for the account of whom it may concern," and in case of loss the amount insured to be paid to the plaintiff or order ; ^ where a promise was made to the admin- istrator of an estate, and he afterwards resigned, and another was appointed in his place, it being held that he was the proper party to sue ; ^ where a grantee in a deed of land was simply acting as agent for another, and the purchase price was paid with that other's money, the grantee is the proper party to sue for the breach of a covenant which was broken immediately upon the execution of the deed, e.^., a covenant against incumbrances;* a guest at an inn who had property of another in his possession, which was lost, was held to be the proper party to sue for its value ; ^ an auctioneer may sue for the price of goods sold by him, whether he have any interest in the price or not, ^ and a sheriff, for the price of property sold by him on execution ; "* the master of a ship or other vessel may maintain an action for freight, or on any contract concerning the ship, entered into on behalf of the owners,^ or for the taking and carrying away, conversion of, or injury to, the cargo.^ § 176. Various kinds of bonds and undertakings generally re- quired by statute, and given to some designated obligee, although showing on the face that they are designed to protect, secure, or indemnify other persons, are also contracts made " with, or in the name of, one person for the benefit of another ; " and although the party immediately interested may in general sue in his own name,^^ yet the obligee or person to whom the promise is made may always, unless forbidden by statute, maintain the action, and in some States is the only one who is permitted to do so. Among these are bonds in great variety given to the " people " or to the " State," conditioned upon the faithful discharge of 1 Brown v. Cherry, 38 How. Pr. 352. 5 Kellogg v. Sweeney, 1 Lans. 397. 2 Walsii V. Wash. Mar. Ins. Co., 3 o Minturn v. Main, 7 N. Y. 220, 224; Robt. 202; Greenfield v. Mass. Mut. Ins. Bogart i-. O'Hegan, 1 E. I). Smith, 590. Co., 47 N. Y. 430. See also Sturm v. ' Armstrong),'. Vroman, 11 Minn. 220; Atlantic Mut. Ins. Co., (53 N. Y. 77; McKee v Linebcrger, 01) N. C. 217, 239. Waring t). Ind. Fire Ins. Co., 45 Id. 600. ^ Kennedy r. Eilau, 17 Abl). Tr. 73. 3 Harney v. Dutcher, 15 Mo. 89. » Houghton )'. Lyneii, 13 Minn. 85. * Hall i'. riaine, 14 Ohio St. 417, 423. lO See supra, §§ 139, 141. TRUSTEE OF AN EXPRESS TRUST. 217 their duties by public, local, or municipal officers, actions on which, except when otherwise directed by statute, may be brought by the people or the State ;^ bonds running to the people or to the State, conditioned upon the faithful discharge of duties by various private or semi-private trustees, or by persons appointed in judi- cial proceedings and the like, such as those given by adminis- trators, executors, or receivers ; ^ those given by the trustees of an estate, although entirely for the benefit of the persons having an interest in the estate ; ^ bastardy bonds ^ and the like ; bonds given directly to a sheriff or other superior officer to indemnify a deputy sheriff or other subordinate officer against the conse- quences of acts done in the discharge of the latter's official duties;^ a bond given by a town superintendent of common schools to the supervisor of the town, an action on which must be brought by the supervisor or his successor in office.^ § 177. In all the instances heretofore mentioned, the contract has been made with an agent in his own name, and the promise given to him, although the principal or beneficiary was known, and even expressly designated and provided for by the terms of the agreement. The rule is the same, and even more emphat- ically so, if the principal or beneficiary is, at the time of the contract unknown or undisclosed, or not mentioned in the instru- ment. When a contract, even in writing, is made with and by an agent, and no mention is made of any principal or beneficiary, but the other contracting party supposes he is dealing with the former on his own private account, but in fact such person is an agent for an undisclosed principal and enters into the agreement in the course of his agency, actually effecting the contract on behalf of that superior behind him, the rule is well settled that the one who was thus a direct party to the agreement — the actual agent — may bring an action upon it in his own name, or the principal may sue in his name.'^ 1 Hunter v. Commissioners of, &c., 10 porter's head-note reads should be sued by Ohio St. 515 (county treasurer's bond the people : tliis is more than was decided, running to the State) ; State v. Moore, Baggott v. Boulger, 2 Duer, 160. The 19 Mo. 369 (sheriff's bond); Meier i;. bond may also be prosecuted by the per- Lester, 21 Mo. 112 (constable's bond) ; son interested and benefited. Shelby Co. v. Simmonds, 33 Iowa, 345 » people v. Norton, 9 N. Y. 176, 179. (county treasurer's bond running to the * People v. Clark, 21 Barb. 214. county). 6 Stilwell v. Hurlbert, 18 N. Y. 374, 2 People V. Laws, 3 Abb. Pr. 450; 375. Annett v. Kerr, 28 How. Pr. 324 ; People ^ Fuller t>. Fullerton, 14 Barb. 59. V. Townsend. 37 Barb. 520. The re- ' Erickson v. Compton, 6 How. Pr. 218 CIVIL liEMEDIES. § 178. I have thus far considered only the particular class of trustees of an express trust specially described in some of the codes as "persons with whom or in whose name a contract is made for the benefit of others." There are numerous other and more properly designated classes of such trustees ; and whatever be their nature, or the object of the trust, they may, by virtue of this section of the statute, maintain an action in their own names. They are generally created or aj^pointed by some instrument in the nature of a grant or conveyance, or they may be appointed in judicial proceedings by a court. Although the rule is simple and peremptory that these trustees may sue without joining the bene- ficiaries, the following instances in which the rule has been ap- plied may be enumerated : assignees^ general or special, in trust, to pay creditors ; ^ the assignees of a contract in trust to re- imburse out of the proceeds thereof third persons for advances made ; ^ trustees appointed to take and collect subscriptions for colleges and other similar purposes;"^ a receiver ajjpointed in another State ; ^ the grantee of lands in trust for the use and benefit of another is the jDroper party to sue for possession or for damages by trespass or other injury ;° a person who agreed to hold notes and a mortgage for the benefit of another, and to apply the proceeds thereof when collected in payment of a debt owed by himself to that other, may sue to enforce the securities ;^ the. assignee of a stock subscription, who holds it for the benefit of a bank, is the proper party to bring an action upon it ; " a person to whom chattels had been transferred for the benefit of a married woman in trust, to permit her to have exclusive use 471 ; Grinnell v. Schmidt, 2 Sandf. 706 ; Cravens, 47 Ind. 4. See Lathrop v. Union India Rubber Co. v. Tomlinson, 1 Knapp, 37 Wis. 307. E. I). Smith, 364 ; Van Lien v. Byrnes, * Kunk v. St. .Jolm, 29 Barb. 585 ; per 1 Hilt. 133; Higgins v. Senior, 8 M. & contra, Hope Life Ins. Co. v. Taylor, 2 W. 8.34 ; Sims v. Bond, 5 B. & Ad. 389, Robt. 278. See Lathrop v. Knapp, 37 393, per Lord Denman. In ordinary con- Wis. 307 ; Garner v. Kent, 70 Ind. 428. tracts made by agents for their principals, ^ Goodrich v. Milwaukee, 24 Wis. 422 ; the latter are the real parties in interest, Boardman v. Beckwith, 18 Iowa, 292,295. and must sue. Swift v. Swift, 46 Cal. See Holden v. N. Y. & Erie Bank, 72 206, 209. N. Y. 280, 297 ; Tyler v. Granger, 48 Cal. 1 Lewis V. Graham, 4 Abb. Pr. 106 ; 259 ; McKinnon v. McKinnon, 81 N. C. St. Anthony's Mill Co. v. Vandall, 1 201. Minn. 246. See Foster v. Brown, 65 Ind. ^ Gardinier i'. Kellogg, 14 Wis. 605. 2.34. See Davidson v. Elms, 67 N. C. 228; 2 Cummins r. Barkalow, 4 Keyes, 514. Thompson v. Toland, 48 Cal. 99, 114; 8 Slocum V. Barry, 34 How. Br. 320; Moorehead u. Hyde, .38 Iowa. 382. Dix V. Akers, 30 Ind. 431 ; Musselman v. 7 Kimball v. Spicer, 12 Wis. 668. ACTIONS BY PUBLIC OFFICERS. 219 and possession, and to dispose of them by her direction, is the proper party to bring an action to restrain interference with or disturbance of her possession.^ It has been held in Kentucky that where a raih-oad company issued bonds which were held by many different persons, and executed a mortgage to a trustee for the purpose of securing such bonds, this trustee, who was the sole mortgagee named in the instrument, could not maintain an action in his own name alone to foreclose the mortgage on account of the non-payment of the money due on the bonds, but he must join the bond-holders as parties plaintiff with himself.^ The correctness of this decision may well be doubted in the light of the other cases above cited, which uniformly proceed upon a different doctrine. § 179. Many public officers are authorized by law to bring actions in their own names, and by virtue of their official char- acter, in respect of matters falling within the scope of their official functions. As this subject is entirely regulated by special statutes, which greatly vary in different States, and as it is not in fact a portion of the general civil procedure, but rather a mat- ter exceptional and collateral thereto, I shall not attempt any discussion of the cases in which such officers may sue, but shall simply mention a few decisions which may have some general interest. Actions by public officers suing as such should be brought in their individual names, but with their official titles added ; ^ but the mere use of the official title will not be enough, without the proper averments of the official character in the pleadings ; in the absence of such averments, the title will be regarded as only a description of the person.* In New York, counties cannot sue nor be sued. All actions and judicial pro- ceedings in favor of or against counties, except those which some - Reed v. Harris, 7 Robt. 151. Dam v. Frings, 17 id. 898 ; Supervisors - Bardstown, &c. R. R. v. Metcalfe, 4 v. Kirby, 25 id. 498 ; Dutclier y. Dutcher, Mete. (Ky.) 199. 39 id. 651 ; Town of Pine Valley v. Town 3 Paige V. Fazackerly, 36 Barb. 392. of Unity, 40 id. 682 ; La Crosse v. Melrose, As to actions by towns, counties, super- 22 id 459 ; School Directors v. Coe, 40 visors, and similar officers, see Hathaway id. 103; Supervisors v. Hall, 42 id. 59; V. Town of Cincinnaius, 62 N, Y. 434 ; Lafayette Co. v. Hixon, 69 :\Io. 581 : Town of Lewis v. Marshall, 56 N. Y. Vandersall v. The State, G5 Ind. 176; 663 ; Town of Guilford v. Cooley, 58 id. Garner v. Kent, 70 id. 428 ; Cumm'rs v. 116; Town of Chautauqua v. Gifford, 8 Lincberg, 3 Mont. 31 ; San Benito Co. v. Hun, 152; Sutherland r. Carr, 85 N. Y. Whitesides, 51 Cal. 416. 104; Hagadorn v. Raux, 72 id. 583; * Gould i;. Glass, 19 Barb. 179. Cairns v. O'Bleness, 40 Wis. 469 ; Beaver 220 CIVIL EEMEDIES. county officer is expressly authorized to maintain in his own name for the benefit of the county, must be brought by or against the " Board of Supervisors " of the county named, as an organized unit, and by that designation, and not against the supervisors individually;^ but when the action is by or against the super- visors, not as the immediate representatives and in the place of the county, it must be brought by or against them individually, with their title of office added.^ The rule in respect to towns in Kew York is different. They are municipal corporations, and must sue and be sued by their corporate name, except in the few cases where town officers are expressly authorized by statute to sue in their name of office for the benefit of the town.^ In ac- cordance with this rule, where the supervisor and commissioner of highways had entered into a contract on behalf of the town, which contained no promise to or undertaking with themselves, as such officers, it was held that they could not maintain an action upon it in their joint names, but the action should have been by the town, as the real party in interest.* The Secretary of State for the War Department of Great Britain was permitted to sue in his individual name to recover public moneys which had been embezzled by a subordinate official, it being shown that b}^ the British statute the property was vested in him as such secretary.^ The " Metropolitan Fire Department," a commission created by statute for the city of New York, is declared to be a quad corporation, capable of suing and being sued, and not a mere official agency of the municipality.*' § 180. Hardly any attempt has been made by the courts to determine in a general manner the classes of persons who fall within the designation of " expressly authorized by statute " to sue. The Supreme Court of Indiana in one case made an ap- proach towards such an interpretation. In an action upon a promissory note by the assignee thereof, his right to sue was denied by the defendant. The evidence tended to show that he was not the real party in interest. To meet this objection, he 1 Hill V. Board of Supervisors of Liv- Co., 11 N. Y. ^70, 390, per Selden J. " A ingston County, 12 N. Y. 52; Magee v. town is a political corporation, and suits Cutler, 43 Barb. 239. in its belialf must be prosecuted in the 2 Wild V. Board of Supervisors, 9 How. name of the town." See sit/na, § 174. Tr. 315, per Harris J. ^ Peel v. Elliott, 7 Abb. Pr. 433. 3 Town of Duauesburgh r. Jenkins, 46 "^ Clarissy r. Metropolitan Fire Dep., Barb. 294. 7 Abb. Pr. n. s. 352. * Palmer v. Fort Plain, &e. Plank K. PERSONS AUTHORIZED BY STATUTE TO SUE. 221 invoked a prior general statute, which expressly provides that indorsees and assignees of bills and notes may sue in their own names, and urged that he was thus brought directly within the class of " persons expressly authorized by statute " mentioned in the section of the code under consideration. The court, however, refused to adopt this construction of the code. It said : " Is the assignee of a note who holds it as such, without any real interest, one of that class of persons here referred to as being ' expressly authorized by statute to sue ' ? or does the provision have refer- ence to another class of persons, such as the guardians of an idiot, &c.? We are of the opinion that the clause of the section above quoted does not have reference to the rights of an assignee of a promissory note, but to such persons as may be authorized to sue in their own names because of holding some official position, as the president of a bank, the trustee of a civil township, and the like." 1 There have been held embraced within the same class, not only the presidents and other managing officers of joint-stock associations for business purposes, but also similar officers of some voluntary societies organized for purposes not connected with business, when the action is brought on behalf of, or in relation to matters belonging to, the society, and among other instances the following : a suit brought by the president of a voluntary unincorporated religious and missionary association to recover a legacy bequeathed to it ; ^ by the treasurer of a division of the Sons of Temperance, a voluntary social organization ;^ by the president of a bank of which he was the nominal proprietor, all the contracts and transactions being in his name as such pro- prietor;"* by the trustee of the '"Pittsburg Trust Companj'," an unincorporated business association, in an action brought to recover damages for negligence in not protesting a bill of ex- change belonging to such association, by which the amount thereof was lost.^ An officer of the Bank of England was per- mitted to sue in New York upon a bill of exchange belonging to the bank, by showing that the statutes of England authorized 1 Swift V. Ellsworth, 10 Ind. 205, per 3 Tibbetts v. Blood, 21 Barb. 650 ; ex- Hanna J. pressly holding that these statutes are not 2 De Witt V. Chandler, 11 Abb. Pr. 459 confined to business associations. (General Term). It was held that the * Burbank v. Beach, 15 Barb. 326. action might be maintained under slat- ' Laughlin v. Greene, 14 Iowa, 92, 94. utes of 1848, 1849 ; citing Tibbetts v. The plaintiff was said to be a trustee of Blood, 21 Barb. 650. an express trust. 222 CIVIL EEMEDIES. liim to bring an action.^ On the other hand, it has been held in the same State that an action brought by a person as foreman of a certain named fire company — unincorporated — could not be maintained ; thg,t the provisions of the code and of other statutes authorizing suits in the name of officers of unincorporated bodies do not apply to such societies as fire companies.^ If the doctrine stated by the Indiana court cited above be taken as the correct interpretation of the clause, it follows that the whole section provides for three classes of persons who may sue in their own name^ although not the real parties in interest ; namely, firsts those with whom, or in whose name, a contract is made for the benefit of another, to whom the promise is directly given, and who sue because they are the actual promisees ; secondli/, trustees proper of an express trust, who, by virtue of being trustees, have an interest in or title to some property which is the subject-matter of the trust ; and, thirdly, certain persons clothed with autliority to do various acts for, or in behalf of, others, but who are not vested with any interest in or title to property, so as to render them trustees in the strict meaning of that term, and who are authorized by various statutes to maintain actions in the exercise of their personal authority, such as officers of voluntary societies, guardians, or committees of the person, and the like. § 181. That executors and administrators can maintain actions relating to the estate in their own names alone, is a proposition too familiar and elementary to require discussion or the citation of authority. Although in general a foreign executor or admin- istrator cannot sue as such in the courts of another State or coun- try than that in which he was appointed, yet, if the objection is not raised by answer or demurrer, it is waived under the codes of procedure ; that is, the objection goes simply to the parties' capacity to sue, and not to the cause of action set up in the com- plaint or petition.^ In California, lands owned in fee by the de- ceased do not descend at once to his heirs or pass to his devisees, but go with the personalty into the estate in the hands of his 1 Myers v. Machado, 6 Abb. Pr 198. Duncan v. Whedbee, 4 Col. 143 ; Mullin's 2 Masterson v. Botts, 4 Abb IV. 1.30 Appeal, 40 Wis. 154; Hart f. Iloucliin, (Sp. T.). 50 Ind. 327; Wright's Adm'r v. Wright, 8 Kobbins v. Wells, 18 Abb. Pr. 191. 72 Ind. 149 (A., as administrator of B.'s As to foreign administrator, see Connor's estate, can sue A. as administrator of C.'s Adm'r v. Paul, 12 Bush, 144 ; as to exe- estate) ; Ham i-. Henderson, 50 Cal. 367; cutors and administrators generally, see Cashman v. Wood, Ilun, 520. ACTIONS BY GUARDIANS. 223 administrator or executor as a part of the assets to be administered upon. Any action, therefore, relating to such land, — to recover its possession, or damages for injuries done to it, or rents, or the like, — brought at any time before a final settlement of the estate and distribution thereof, must be prosecuted by the administrator or executor alone.^ In an action by the administrator of a mort- gagee, brought to foreclose the mortgage, the heir of the mortgagee is not a proper party to be joined as a co-plaintiff. In California, as in New York, the mortgage is a mere security, incident and collateral to the debt, and belongs wholly to the personalty .^ § 182. How far general guardians of infants, testamentary or appointed by the probate courts, are authorized to maintain ac- tions in their own names, relating to the personal property of their wards, depends rather upon the provisions of the statutes which define theii- powers and duties than upon those of the codes. The codes in general can hardly be deemed to have enlarged their powers in this respect. In a few States, the guardian is specifically mentioned and coupled with the executor and admin- istrator in the section of the statute under consideration ; and this language may be interpreted as authorizing him to sue in respect of all property which is under his control by virtue of his office.^ In New York, it has been determined by the Supreme Court in a very carefully considered case, the decision, however, being rested upon a construction of the Revised Statutes, and not of the code, that the general guardian may bring all actions in his own name respecting the personal property of the ward and the rents and profits of his real estate.^ This same power is exjiresslj' conferred upon him by the statutes of certain States.^ On the other hand, it is held in Kentucky that, while the guar- 1 Curtis »•. Herrick, 14 Cal.117 ; Meeks in suit by infant by a guardian ad litem). r. Halin, 20 Cal. 620 ; Grattan v. Wiggins, A general guardian may sue, Hauenstein 23 Cal. 16; Emeric v. Penniman, 26 Cal. v. KuU, 59 How. Pr. 24; Fox v. Kerper, 119. 51 Ind. 148 ; and see Carrillo i: McPliil- 2 Grattan v. Wiggins, 23 Cal. 16. lips, 55 Cal. 130 ; per contra he cannot sue ^ This interpretation is given to tlie in his own name, Vincent v. Starks, 45 language of the code by the Supreme Wis. 458. Court of Indiana in Shepherd r. Evans, 9 ^ Thomas ?». Bennett, 56 Barb. 197; Ind. 260, wliich holds that, by virtue of Seaton v. Davis, 1 N. Y. Sup. Ct. 91 ; and the provision, the guardian is empowered see Wliite v. Parker, 8 Barb. 48, 52 ; to bring such actions in his own name. Mebane i\ Mebane, 06 N. C. 334 ; Biggs See Wilson v. Houston, 76 N. C. 375 (when v. Williams, 66 N. C. 427. wards are necessary plaiTitiffs) ; Crawford ^ ggg R. g. of Wis. ch. 112, §§ 23, 47. V. Neal, 56 Cal. 321 (necessary allegaiions 224 CIVIL KEMEDIES. dian, who has taken a note expressly made to himself as paj^ee for moneys belonging to the ward, may prosecute an action thereon, because the promise is given directly to him, he cannot sue in respect of his ward's property in general, since he has no estate or interest therein ; such actions must be brought in the name of the infant.^ The statutes whicli provide for the appoint- ment of guardians or committees over the property of lunatics, confirmed drunkards, and other such persons not mi juris, gen- erally confer upon them the same powers that are given to the general guardians of infants, and a similar rule should therefore prevail in reference to their prosecution of actions. Although there is some conflict in the decided cases, yet, as these guardians or committees do not acquire any estate or interest in the property subjected to their control, but onl}^ a power of possession and management, the correct doctrine upon principle would seem to be that they cannot maintain actions concerning it in their own names, unless expressly authorized to do so by statute ; other actions may be brought by them.^ SECTION SIXTH. WHO MAY BE JOINED AS PLAINTIFFS. § 183. The following are the provisions relating to the joinder of parties plaintiff in one action found in the various State codes, 1 Anderson v. Watson, 3 Mete. (Ky.) court, says : " Tlie ruli' undoubtedly was, 509. and still is, at law, wIutc the action is 2 King V. Cutts, 24 Wis. 625 ; McKil- brought to assert the title of the lunatic lip V. McKillip, 8 Barb. 552. But, pfr con- to real and personal property, it must be tra, see Person i;. Warren, 14 Barb. 488, brr)upbt in bis name, as held in McKillip which expressly holds that the committee r. McKillip, 8 Barb. 5.L)2." He cites the is a " trustee of an express trust " within laws of 1845, ch. 112, which authorize the the meaning of the code. The whole sub- committee to sue for any debt, claim, or ject was discussed and determined in the demand transferred to them, or to the pos- very late case of Fields v. Fowler, 4 N. Y. session and control of whicli they are en- Sup. Ct. 608. The action was brought titled ; also Gorliam v. Gorhimi, .3 Barb, by the committee of the person and es- Ch. 32; Ortley v. Messere, 7 Johns. Ch. tate of a lunatic to set aside tlie sale of a lo'J, and § 111 of the code, and reaches farm made by defendant to the hmatic, the conclusion that the equity rule as to to cancel the satisfaction of a mortgage parties is controlling in actions of this wliich had been executed by liim, and kind. The decision in Person v. Warren, also a check wliicb he had given on such 14 Barb. 488, is e.xpressly approved and sale. The action was held to be properly followed. S. P. Bearss v. Montgomery, brought by the committee. E. Darwin 4G Ind. 644. Smith J., in giving the opinion of the UNION OF PLAINTIFFS: COMMON-LAW RULES. 225 and it will be seen that there is an absolute identity of language in all the legislation upon this 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 pro- vided in this title." ^ This is the important section ; but the fol- lowing one somewhat enlarges its scope and effect in certain cases : " 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 [petition]." ^ The particular statutory rules relating to married women as parties, and prescribing when wives may sue alone or when husbands must be joined, will be stated in a subsequent portion of this section. Many of these special enactments are not found in the codes of procedure, but in separate and independent legislation. § 184. The Common-laiv Rules. Before entering upon the interpretation of these statutory provisions, and before discussing the doctrine of parties plaintiff with respect to their uniting or severing in an action in the reformed American system of proce- dure, it will be advantageous and even necessary to state in a brief but comprehensive manner the rules which prevailed at the com- mon law, unchanged by legislation. The common law, in respect to the union of defendants, divided liabilities into joint, joint and several, and several ; in respect to the union of plain- tiffs, it divided all rights into joint, and several. The require- ments that all the persons jointly interested should unite as plaintiffs in any action brought to maintain the interest, and that, in the case of a several right, each separate holder of it should sue alone, were very peremptory, and upon them were based the form, extent, and even possibility of the judgment to be recovered. I New York, § 117 (446) ; Ohio, § 34; 2 ^g^ York, § 119 (448) ; Indiana, Indiana, § 17 ; Kansas, § 35 ; California, § 10 ; California, § 382 ; Wisconsin, cli. §§ 378,381 ; Missouri, art. 1, § 4 ; Wiscon- 122, § 20; Florida, § 70 ; South Carolina, sin. ch. 122, § 18 ; Iowa, § 2545 ; Nebraska ; § 142 ; Dacota, § 72 ; Oregon, § 381, but § 37 ; Florida, § 68 ; Kentucky, § 34 ; limited to equity actions ; Nevada, § 14 ; South Carolina, § 140; Nevada, § 12; Ohio, § 36 ; Kansas, § 37 ; Iowa, § 2548; Dacota, §70; Oregon, § 380, but limited Nebraska, § 39; Kentucky, § 36; Mis- to equitable actions ; North Carolina, souri, art. 1, § 6 ; North Carolina, § 62 ; § 60; Idaho, § 12; Washington, § 8; Idaho, §14; Washington, § 8; Montana, Montana, § 12; Arizona, § 12; Wyo- §14; Arizona, §14; Wyoming, § 42. ming, § 40. 16 226 CIVIL REMEDIES. All the possible occasions from which could arise the two classes of rights, joint or several, and which could give an opportunity for the distinction into these two classes, are (1) contracts in which the rights of the obligees, covenantees, or promisees may be joint or several ; (2) wrongs to person, character, or property, not consisting in the breach of contracts; (3) property in laud, in respect of which there may be joint ownership, ownership in common, and several ownership ; (4) property in chattels, in respect of which there may be joint ownership, ownership in common, and several ownership. These are all the occasions which can give rise to joint or several rights. But the possessors of the rights which spring into existence upon these occasions may themselves be separated into two classes, — those who hold of their own right, and those who hold in a representative character or capacity', as executors, administrators, and trustees of all kinds. To these must also be added the special case of husband and wife ; and it is to be determined when they should be united as plaintiffs and when the husband should sue alone. I shall take up these classes in the order indicated, and shall state the common- law rules in reference to the union or severance of parties plain- tiff in a legal action, as laid down by text-writers of the most approved authority, but without any discussion of the doctrine or illustration by examples. § 185. Firsts the rights ivhich arise from contracts. When a contract, either sealed, written, or verbal, is made with two or more persons, and their legal interest therein is joint, all the obli- gees, covenantees, or promisees, if living, and as many as are living, must join as plaintiffs, even though the covenant or prom- ise to them is in terms joint and several. The interest spoken of is not the interest which will be had in the sum of money or other benefit promised when the agreement is performed, but the interest in the contract, the legal, technical interest created by the terras of the very agreement.^ This rule as to the union of parties plaintiff in an action brought upon a joint contract being thus universal and peremptory, it becomes a matter of the utmost importance to determine when a contract is thus joint ; when the 1 1 Cliitty PI. Springfield ed. 1840, p. 7 ; James v. Emery, 5 Price, 520 ; Hatsall 8a ,• Ecck-Bton v. Clipsliam,! Wm. Saund. v. Griffith, 4 Tyr. 487 ; Wright t;. Post, 153, n. 1; Anderson v. Martindale, 1 3 Conn. 142. East, 497, 501 ; Hill v. Tucker, 1 Taunt. UNION OF PLAINTIFFS: COMMON-LAW RULES. 227 rights of the promisees, or their legal interest in the contract, is joint, and not several. In general, if a promise is made to two or more persons, the right is presumptively joint ; a several right is the exception. No express joint words, therefore are necessary but some words indicating such an interest must be used to create a several right. A mere promise to A. and B. always creates a joint right,^ even though the share of the money promised which each is to have is designated.^ The following examples of con- tracts in which the rights and interests were held to be joint are given as illustrations of this general doctrine. Where one of a firm of bankers had loaned money, all the partners may join in an action to recover it.^ An agent of three part-owners of a ship sold the vessel, and paid over their respective shares of the price to two of them ; it was held that the three must unite in an action to recover the other share, payment of which had been refused ; the implied promise was to all the owners jointly.^ A. conveyed land to several persons, and in the deed covenanted with them, " and to and with each and every of them," that he was lawfully seised ; all the grantees were required to join in an action on this covenant.^ When one covenants with A. and B. to pay a sum of money to A., both must unite in a suit to recover the money ; there is a, joint interest in the contract, although A. is the only one interested in the benefit which is to result from its performance.^ The interest of the promisees or covenantees is the important, and, as the rule is laid down by the text-writers and by most of the cases, the sole, criterion by which to decide whether the right is joint or several. If this interest — that is, the legal interest in the contract — is joint, the right is joint ; if several, the right is several. It has been said that no language of the agreement, indicating that the right is to be several, will avail when the interest is clearly joint, and no language will avail to make the right joint, when the interest is clearly several.'' Some English cases, however, have modified this doctrine, and have denied that the interest is to be the sole criterion, holding that the express 1 Hill V. Tucker, 1 Taunt. 7 ; King v. 5 Slingsby's Case, 5 Rep. 18 h, 3 Lev- Hoare, 13 M. "& W. 499, per Parke B. ; inz, 160, Dyer, 337. Yorks V. Peck, 14 Barb. 644. ^ Anderson v. Martindaie, 1 East, 497. - Lane v. Drinkwater, 1 C. M. & R. ^ See the foregoing cases ; also Hop- 599 ; Byrne v. Fitzhugh, 1 Id. 613, n. kinson v. Lee, 6 Q. B. 971, 972, per Lord 3 Alexander v. Barker, 2 Tyr. 140. Denman ; Withers v. Bircham, 3 B. & C. * HatsaU v. Griffith, 4 Tyr. 487. 254 ; Servante v. James, 10 B. & C. 410. 228 CIVIL REMEDIES. language may control the effect of the interest.^ There is no such thing as a joint and several right as there is a joint and sev- eral liability. It is either several, so that each of the promisees ?7mst sue separately ; or joint, so that all must sue together. The parties never have the option to sue jointly or severally at their pleasure.^ When a contract is made with a partnership, all the members of the firm must join ; even when the promise is nomi- nally to one of the partners alone, if it is intended for the benefit of all, all must sue.^ A dormant partner, however, need not be joined.* § 186. Where the legal interest in the contract or the cause of action is several, the covenantees or promisees must sue separately, although the agreement is in its terms joint.^ The following are some illustrations of contracts in wdiich the inter- ests and the consequent rights of action are several. If a man demises Whiteacre to A. and Blackacre to B., and covenants with them and with each of them — or even, it seems, if he covenants with them in express terras jointly — that he is the owner of the closes, each must sue separatel}'' in respect of his distinct inter- ests ; they cannot sue jointly, for they have no joint or entire interest in the same subject-matter,^ If a person promises A. and B. to pay a different sum to each, although the mere terms of the promise are joint, the interest is several, and each must sue sep- arately.' A fortiori, if, instead of one promise to all, there are separate promises of distinct sums to each in the same instru- ment, the interest and consequent rights w^ill be several.^ When 1 Sorsbie v. Park, 12 M. & W. 14G, 157, * Clark i'. Miller, 4 Wend. 628 ; Clark- pcr Lord Abinger, p. 158, per Parke B. ; son v. Carter, 3 Cow. 85 ; Lord v. Bald- Mills V. Ladbroke, 7 Man. & Gr. 218 ; win, 6 Pick. 3-18, 352 ; Leveck v. Shaftoe, Bradburne v. Botfield, 14 M. & W. 559, 1 Esp. 468; Lloyd d. Archbowle, 2 Taunt. 572 ; Keigbtley v. Watson, 3 Exch. 716. 324. 2 Slingsby's Case, 5 Rep. 19 a ; Eecle- ^ Slingsby's Case, 5 Rep. 18 6 ,- Eccle- eton V. Clipsbam, 1 Wm. Saund. 153; stonu. Clipsham, 1 Wm. Saund. 153, n. 1 ; Petrie v. Bury, 3 B. & C. 353; Scott v. James v. Emery, 5 Price, 529; James v. Godwin, 1 B. & P. 67, 71; James v. Emery, 8 Taunt. 24.'") ; Dunbam w. Gillis, 8 Emery, 5 Price, 533, per Gibbs C. J.; Mass. 4G2 ; Baker ;•. Jewell. G Mass. 400 ; Foley V. Addcnbroke, 4 Q. B. 197 ; Kcigbt- Gould v. Gould, Wend. 203 ; 1 Cb. PL, ley V. Watson, 3 Excb. 721, per Pollock same ed., p. 10. C. B., p. 723, per Parke B., p. 726, per ^ Cases cited in last note, and Witliers Rolfe B. Most of tliese cases arose upon v. Bircham, 3 B. & C. 254. covenants, but tbe same rules certainly 7 Ibid. apply to simple contracts. 8 Servante r. James, 10 B. & C 410; ^ 1 Cb. PI., same ed., p. 11; Garrett Ford u. Bronaugh, 11 B. Mon. 14. V. Handley, 4 B. & C 004. UNION OF PLAINTIFFS: COMMON-LAW RULES. 229 three persons were assignees of a bankrupt, and two of them paid one-half each of the attorney's bill, it was held that they could not maintain a joint action against the third for his proportion of the money paid ; each was interested alone in the implied prom- ise to refund to him a portion of the money he had advanced.^ But if the two had borrowed on their joint account the money which they paid, or if their attorney had paid it for them on their joint account, they would have had a common interest in the entire sum paid, and in the implied promise to repay, and could have maintained a joint action for it.^ § 187. Joint owners of land must sue jointly upon any con- tract relating to the estate.^ When owners in common, even if holding by distinct titles, jointly let, reserving an entire rent, they may and perhaps must unite in an action to recover the rent;^ but if the rent be reserved to them separately in distinct parts, they must sue separately.^ § 188. If of the joint obligees, covenantees, or promisees, one dies, the action must be brought by the survivors ; the execu- tors or administrators of the deceased cannot be joined as co- plaintiffs, nor can they sue separately. If all die, the suit must be by the personal representatives of the last survivor. If, how- ever, the right is several, the executors or administrators of the decedent may bring an action, although the others are living.^ The consequences of a non-compliance with these rules were at the common law very serious. If a plaintiff omitted to join another as co-plaintiff who should have been joined, or if persons were improperly joined as co-plaintiffs, and the error appeared upon the face of the pleadings, it was fatal on demurrer, or in arrest of judgment, or on a writ of error. If the error did not appear on the face of the pleadings, the defendant might take advantage of it either by a plea in abatement, or by a motion for a nonsuit at the trial, or by proof under the general issue.^ 1 Brand v. Boulcott, 3 B. & P. 235. Barnby, 5 T. R. 249; Powis v. Smith, 5 See Yates v. Froot, 12 Johns. 1 ; Gould v. B. & A. 851 ; Wilkinson v. Hall, 1 Bing. Gould, 8 Cow. 168. N. C. 713. - 1 Ch. PI., sameed.,p. 11 ; Osborne v. ^ Ibid.; Bac. Abr. Joint Tenants, K. Harper, 5 East, 225; Doremus v. Selden, ^ 1 Ch. PI. same ed., p. 19; Rolls v. 19 Johns. 213, 217. Yate, Yelv. 177 ; Anderson r. Martindale, 3 1 Ch. PL, same ed., p. 13 ; Bac. Abr. 1 East, 497 ; Stowell's Administrator v. Joint Tenants, K. ; Scott v. Godwin, 1 B. Drake, 3 Zabr. 310; Shaw i;. Sherwood, & P. 67. Cro. Eliz. 729. * 1 Ch. PI , same ed., p. 13; Martin i;. ^ 1 Ch. PI. same ed., p. 13 ; Armine v. Cronipe, 1 Lord Raym. 340; Harrison v. Spencer, 4 Wend. 406; Baker v. Jewell, 230 CmL REMEDIES. § 189. Second. Rightsu'hicharise from Torts to Property, Per- son, or Character. Persons jointly entitled, or having a joint legal interest in the property or other rights affected by the tort, must join in actions brought to recover damages therefor. On the other hand, when the interest and right, and the damage are both several, each person who has suffered the wrong must sue separately. In accordance with this principle, two or more plaintiffs cannot, in general, sue for torts to the person or cliaracter, such as assaults and batteries, false imprisonments, libels, slanders, and the like. But if a joint right is invaded by a personal wrong, and joint damage is done thereby, the injured parties may unite in the action ; as, for example, partners may sue jointly for a libel or slander upon the firm as such, by which injury is done to the common business.^ § 190. Joint owners and owners in common of personal prop- erty must unite in actions brought to recover damages for any injuries to it, or for the wrongful taking or conversion of it, and in actions to recover its possession ; but persons having a several interest must sue separately .^ Joint owners of land must unite in all real actions relating to it, and also in all personal actions. Owners in common must, however, in general, sever in real actions to recover their interests in the land, and in the action of ejectment ; but in personal actions for injuries, such as trespass, nuisance, and the like, they may join. It was the rule in New York, however, that tenants in common might declare in eject- ment upon a joint demise.^ In all these actions ex delicto, for torts to person or property, the objection to a ?io72-joinder of proper parties plaintiff, when it existed at all, could only be taken advantage of by a plea in abatement, or by an apportion- ment of damages at the trial ; the defendant could not demur, nor move for a nonsuit, nor prove the defect under the general issue. If, however, the objection was to the ?7^^Vjoinder of im- proper parties plaintiff, the same rules prevailed as in actions ex contractu.^ § 191. Third. Tlie Case of Husband and Wife. As the wife's chattels became absolutely the property of the husband at the e two cases. " Pearce v. Hitclicock, 2 N. Y. 388, per Jewett C. J. See, however. Alexander V. Jacoby, 23 Ohio St. 358, 383. An at- tachment bond had been given, joint in form, to A., B. and C, and goods belong- ing to A. and B. had been seized. The suit terminating in their favor, they brought an action on the bond, without joining C. as a co-plaintiff. It was held tliat, though in form joint, the interests of the obligees were several ; and the action by A. and B. was sustained. * Lawrence v. Montgomery, 37 Cal. 183. ^ Secor V. Keller, 4 Duer, 416. Un- doubtedly, the dormant partners are in- terested in the event of the action ; but they were equally so at the common law. Thej' were not required to be made par- ties by the former rule, because the con- tract was regarded as being e.xpressly made with the ostensible partners, who acted as agents for the dormant ones. They seem, therefore, to fall within tlie provision which allows actions to be brought by persons in whose name a con- tract is made for the benefit of another. See Beudell v. Hettrick, 45 How. Pr. 198; Lewis V. Greider, 51 N. Y. 231 ; 49 Barb. 606. JOINT ACTIONS ON CONTRACT. 273 and it does not seem that anything in the code has changed the rule in this particular. When eleven officers [harbor masters] all engaged in the same duties, and each entitled to an equal share, one-eleventh, of the total fees, made an agreement by which one of them undertook to collect all the fees, and to account for and pay over to the other ten their portions of the same, it was held tliat all of the ten must unite in an action brought against the eleventh to recover from him the amounts due to them which he had received ; one could not sue alone.^ Persons may sometimes be united as plaintiffs in an action upon a written contract, even though they are not parties thereto, and the terms of the agreement make no direct reference to them, if they, not- withstanding, have an actual interest jointly with the ostensible parties in the subject-matter of the contract, and in the cause of action arising upon it.^ The authorities of a county appropriated $117,600 to procure volunteers to fill the quota of the county, and ordered $300 to be paid as bounty to each volunteer out of this fund. Eighty-six persons, who had already enlisted in the military service, agreed with the county officials that, in consider- ation of being paid said bounty, they would form a part of its quota, and they were thereupon actually enrolled in and credited to the number of volunteers required from the county. The bounty not being paid, the entire eighty-six united in an action demanding judgment for the total amount of their bounties, $25,800, and the action was held to be properly brought.* § 228. The common-law theory of joint right, growing out of contract, equally with the joint right arising from the ownership of chattels, has been carried by certain cases so far that manifest injustice had been done, and the enforcement of conceded riglits has been defeated, in order that the courts should not depart from an arbitrary and technical rule. These cases have held that, 1 Dean v. Chamberlin, 6 Duer, 691. action on the bond jointly with those first The complaint, stating these facts, and mentioned. See the facts and opinion, alleging tliat defendant had refused to ac- supra, § 202. count for and pay over to the single plain- ^ Young v. Board of Comniissioner.s, tiff his sliare, was held bad on demurrer; 25 Ind. 295,299. Eacli plaintiff was only all should have joined as plaintiffs. interested to the extent of S300. There 2 Rutledge v. Corbin, 10 Ohio St. 478. was no joint right in the whole fund. A "forthcoming bond" having been given This case, therefore, illustrates, in a clear to the sheriff for the benefit of certain manner, the proposition heretofore made, attaching creditors named in it as the — that the code admits of a joinder of parties benefited, subsequent attaching plaintiffs in instances where such joinder creditors were permitted to unite in the was not permitted at the commoD law. 18 274 CIVIL REMEDIES. where a contract is made by or with two or more on the one part, so that a joint right of action is held by them, the only possible action is one brought by all, if living ; that one of them cannot sue on the contract making his co-contractor a defendant, with proper averments in the pleading, whether he seeks to re- cover the whole amount due, or only his own individual interest therein, and though the co-contractor refuses to join in the suit for any reason, even if the latter has been paid his share.^ I have already discussed this topic at large, and fully expressed my opinion upon it.^ The decisions last mentioned, and the rule which they approve, are directly opposed to the letter of the codes, which makes no restriction to equitable suits, and are in violent antagonism with the evident intent of the reformed procedure. It was said by the court, in one case, that if an action bj' one of the creditors was permitted, under the circum- stances stated, the debtor would be exposed to subsequent suits and recoveries from the other creditors. This remark shows an entire misapprehension of the meaning and purpose of the statu- tory provision. It requires the dissenting creditor or co-con- tractor, who refuses to be a plaintiff, to be made a defendant, for the very purpose of concluding him, by the judgment, from any subsequent prosecution on his own behalf. He is added as a party, and " has his day in court," and this will be a complete bar to a future attempt on his own part, if he should change his mind. No possible injustice could therefore be done to the de- fendant, and great injustice would necessarily be done to the creditor who desires to enforce his lawful demand, if the utterly 1 Rainey v. Smizer, 28 Mo. 310; Clark consent of the other ; but this is the very t;. Cable, 21 Mo. 223 ; Andrews v. Moke- reason why he should be allowed to bring lunine Ilill Co., 7 Cal. 330. In the first the a<;tion in his own name, and to save the of the cases, the learned judge, in giving rujhts of the defendant by making the dis- hia reasons why such an action cannot be sentient creditor a co-defendant, and this maintained by one joint creditor, even condudinghimhy the judgment . In Kansas a though the other refuse to prosecute, more liberal view has been taken of tlie said : " If one will say that he has no statute. When one of two partners had right of action, and will not sue, why transferred certain firm property without ahould he not have as much weight as rightful authority, as was claimed, tlie the other who says tliere is a cause of otiier co-partner was permitted to main- action ? " The answer is very simple: tain an action in his own name against because he lias no right, in renouncing his the transferee, to recover the value of his own claims, to renounce those of liis co- own interest in the property. Hogen- contractor. It may be tlie judge's ques- dobler v. Lyon, 12 Ivans. 270. tion is a reason for not permitting one to ^ ggg sujna, § 201, and notes, and Hill bring an action in both names against the v. Marsh, 46 Ind. 218. SEVEEAL ACTIONS ON CONTRACT. 275 arbitrary rule sustained bj^ these and similar cases should be gen- erally approved as the correct interpretation of the codes. The New York Court of Appeals has determined that an action may be maintained by one firm against another firm to recover a sum ascertained to be due, although the two partnerships have a com- mon member who is made a defendant, with proper averments, in the complaint ; and the action need not be brought for the equi- table relief of an accounting, but for the legal relief of an ordinary money judgment.^ § 229. IV^. Actions hy persons having several rights arising from contract. As the principles have been already stated in the preliminary discussions of this section, it is only necessary to add some further illustrations furnished by the decided cases. The common-law doctrine in respect to several rights and actions does not seem to have been changed, unless, possibly, under the operation of the equitable rule embodied in the codes, plaintiffs having strictly several rights may be allowed to unite in legal actions, under circumstances which establish a certain community of interest among them, although under the same circumstances they would have had no such election at the common law. There is at least a tendency shown by some of the decisions towards such a modification of the rule which formerly prevailed in reference to several rights and causes of action. The follow- ing examples will serve to illustrate the nature of several rights, and the doctrine as to parties plaintiff in suits brought to enforce them. Tenants in common of a tract of land, who hold their titles by different conveyances from the same grantor, each of which contains covenants relating to the land and its use, cannot unite in an action brought against the grantor to recover damages for the breach of such covenants ; their interests under the covenants and their rights of action are in every sense several.^ The obligees in an injunction bond, where the interests interfered with by the injunction are separate, and the injury done to each is distinct, cannot join in a suit to recover damages for these several causes of action ; their recovery in such pro- ceeding must be limited to the damages that are strictly joint.^ 1 Cole V. Rej-nolds, 18 N. Y. 74. The should be a plaintiff, is permitted to be a fundamental principle involved in this de- defendant. I simply contend that this cision is the same as that advocated in the principle should be regarded as general, text. A party who, in pursuance of the 2 Samuels r. Blan.chard, 25 Wis. 329. ancient rule as to joint causes of action, ' Fowler v. Frisbie, 37 Cul. 34; but, 276 CIVIL REMEDIES. Certain persons executed the following written agreement : " We, the undersigned, agree to guarantee the depositors of W. E. C. [a banker] in the payment in full of their demands against said W. E. C. on account of money deposited with him." Each de- positor, it was held, must sue separately upon this guaranty to recover the amount of his individual claim ; all the depositors could not join in a single action, because their interests were entirely several, neither one having any interest in the demand of another.^ A number of persons having each subscribed dif- ferent sums of money for a loan to a certain party in aid of a proposed enterprise, and a committee of three having been ap- pointed to act as agents for the subscribers, which committee entered into a written contract with him containing various stipulations concerning the use of the money, and also an under- taking on his part to repay the amounts advanced, each of the subscribers was held entitled to maintain a separate action against the borrower to recover the sum loaned by himself.^ Five per- sons entered into a written agreement stipulating that, if either or any of them should be drafted during the late war, the others would contribute equal sums to enable him or them to hire sub- stitutes. Three of the parties having been drafted and procured substitutes, one at a cost of $1,500, and the others for 81,100, each, it was held by the Supreme Court of Indiana that each must sue the others in a separate action for the stipulated indemnity, and a joint action by the three was dismissed.^ A per contra, see Loomis v. Brown, 16 Barb. - Rice v. Savery, 22 Iowa, 470. The 325. It is held in Ohio that the interests court held that the committee might also of the obligees in an attachment bond are sue as trustees of an express trust, the several, although the undertaking is in promise having been made directly to terms joint. Where such a bond was them, and also that each creditor could given to three persons, an action on it by sue. two of tliem, who were partners, and ^ Goodnight v. Goar, 30 Ind. 418. As whose firm property had been wrongfully the analysis of this contract, given in the seized under the attaoinnent, was sus tained. Alexander t'. Jacoby, 23 Ohio St. 358, 383. For further illustrations see Great Western, &c. Co. v. ^tna Ins Co., 40 Wis. 373 ; Hubbard v. Burrell, 41 id. 365 ; Eldridge v. Putnam, 46 id. 205 Brett V. First Univ. Soc, 5 Ilun, 149 Small V. Robinson, id. 418; Konger v opinion of the court, may be instructive in explaining the nature of several rights, I quote from it at some length. After stating that the code adopts the equity doctrine as to parties, and applies it to all actions, Frazer J. proceeds ; " The pres- ent inquiry is reduced to this : Could these plaintiffs have been joined in Creed, 58 Ind. 554; Durham v. Ilall, 67 chancery? In solving this question, we id. 123. may be aided by considering the nature ^ Steadman i;. Guthrie, 4 Met. (Ky). of the contract upon whicli tlie action is 147, 151. brought. The obligations which it ini- SEVERAL ACTIONS ON CONTRACT. 277 number of persons being interested in opposing a certain claim and in defending suits thereon, appointed a committee to employ counsel and to conduct the defence, and agreed to pay the ex- penses incurred b}'^ such committee. The cost of the defence not having been contributed, the committee paid the same, and thereby became entitled to reimbursement. This right, it was held, was a several one in each member thereof, and a separate suit by each to recover the sum paid out by himself was proper rather than a joint action by all to recover the whole amount which had been disbursed.^ Under the general statutes of New York, providing for the formation of corporations for various purposes, and making the stockholders personally liable under certain circumstances to the creditors of the corporation for the debts thereof, this right of action in the creditors is a several one, and a separate action may therefore be maintained by each creditor. It is admitted, however, that a proper action may be brought against all the stockholders for the benefit of all the creditors.^ A bond having been given for the payment of a certain sum to the heirs of A., eight in number, upon the death poses are strictly several, each party for himself alone being bound in a certain event to pay. Tlie obligation thus as- sumed is to each one of the plaintiffs 6e[)arately by each defendant for one-fifth of such sum as that plaintiff was obliged to pay for a substitute for himself. This proportion due from one cannot be either increased or diminished by the fact that another plaintiff is also entitled to recover from the same defendant a like propor- tion of the sum paid by him for a substi- tute. Each plaintiff has an interest only in compelling the defendants severally to reimburse him, and cannot possibly be affected by the success or failure of any one of his co-plaintiffs in the suit. They have, thcrefiire, no joint or common inter- est in the relief sought, which is the object of the suit. Nor have they any joint or common interest in the subject or founda- tion of the action, which is the failure of the defendants respectively to pay accord- ing to the contract. The failure to pay Goodnight does not concern any other plaintiff; and so the failure to paj' each of the plaintiffs is a matter of entire in- difference to the others. If each two of the five persons had mutually contracted, by a separate writing, to pay one-fifth of whatever sum might be necessary to pro- cure a substitute for either if drafted, there would have been twenty separate paper contracts instead of one as now. It was a matter of convenience merely that one writing, executed by all, should have been adopted to evidence their several undertakings ; but it imposed exactly the same liabilities as if twenty writings such as we have mentioned had been used. In the latter case it would have been too plain for doubt that each plaintiff must sue separately. Why should it be other- wise now 1 There is certainly no good reason." 1 Finney v. Brant, 19 Mo. 42. 2 "Weeks v. Love, 50 N. Y. 568. It was said that all the cases impliedly hold the doctrine above stated ; and the following wore cited : Briggs v. Penniman, 8 Cow. 387 ; Mann v. Pentz, 3 N. Y. 415 ; Osgood V. Laytin, 5 Abb. Pr. N. 8. 1 ; Garrison v. Howe, 17 N. Y. 458. 278 CIVIL REMEDIES. of their mother, it was held by the Supreme Court in New York that an action might be maintained by one heir against the obligor, or, he being dead, against his administrator, to recover one-eighth of the entire sum ; that the right of the obligees was several and not joint.^ Where three towns were each liable for a share of the cost of erecting a bridge, and the proper officers of each — the highway commissioners — procured the same to be erected, but the entire expense thereof was actually advanced and paid out by two of these commissioners, their right of action against the third commissioner to recover the amount thus disbursed for his use was declared to be sev- eral, and a joint action against him, it was held, could not be maintained.2 § 280. V. Actions by persons having a joint right arising from personal torts. The common-law rule governing the selection of parties plaintiff in such actions is entirely unchanged. When the personal tort produces a common injury to all, and thus creates a common damage, all the persons affected by the wrong must join in an action to recover the damages. In pursuance of this principle, all the members of a partnership may and must unite in an action for a libel or slander on the firm, by which its business is injured. Undoubtedly, the instances in which a com- mon, as distinguished from a several, injury can be done to a number of individuals by personal torts, must necessarily be rare ; but when they do occur, the rule as stated must be applied. A single illustration will suffice. False and fraudulent represen- tations concerning the pecuniary responsibility of a certain per- son having been made to a partnership, by which it was induced to sell goods to him on credit, and the price of the goods not being paid or recoverable by reason of the purchaser's insolvency, it was decided by the New York Court of Appeals, that an action to recover damages for the deceit should be brought by all the partners jointly .^ 1 Hees V. Nellis, 1 N. Y. Sup. Ct. ise of the defendant was, therefore, not 118. to the plaintiffs jointly. 2 Corey v. Rice, 4 Lans. 141. There =' Zabriskie r. Smith, 1.3 N. Y. 322. was no joint or common interest held by The action was actually brought by three the towns which the plaintiffs represented out of four partners ; but, no objection in the sum wliich was thus advanced ; it being properly taken, the defect was was not like an advance made by a part- waived. The court further lield that, as ner8liip,or made out of a fund owned by the right of action wsis joint, the share of the plaintiffs together. The implied prom- the partner not made plaintiff could not be ACTIONS ARISING FROM PERSONAL TORTS. 279 § 231. VI. Actions hi/ persons having several rights arising from personal torts. The converse of the proposition stated in the preceding paragraph is also as true now as it was prior to the new system of procedure. Where a personal tort has been done to a number of individuals, but no johit injury has been suffered and no joint damages sustained in consequence thereof, the interest and right are necessarily several, and each of the injured parties must maintain a separate action for his own personal redress. It follows, therefore, that when a tort of a personal nature, an assault and battery, a false imprisonment, a libel, a slander, a malicious prosecution, and the like, is committed upon two or more, the right of action must, except in a very few special cases, be several. In order that a joint action may be possible, there must be some prior bond of legal union between the persons injured — such as a partnership relation — of such a nature that the tort interferes with it, and by virtue of that very interference produces a wrong and consequent damage common to all. It is not every prior existing legal relation between the parties that will impress a joint character upon the injury and damage. Thus, if a husband and wife be libelled or slandered, or beaten, although there is a close legal relation between the parties, it is not one which can be affected by such a wrong, and no joint cause of action will arise. The doctrine above stated has been fully recognized and asserted by the courts since the codes were enacted. A fire company — a voluntary association — having been libelled, a joint action by its members to recover damages against the libeller was held improper ; not being part- ners, and not having any community of legal interest whereby they could suffer a common wrong, the right of action was several, and each must sue alone. ^ The same rule has been applied in the case of two or more persons, not partners, suing jointly to recover damages for a malicious prosecution ; the action cannot be maintained.^ shown by the defendant, and allowed in ^ Rhoads v. Booth, 14 Iowa, 575. mitigation of damages ; although, if the Three plaintiffs sued jointly for a mali- plaintittk liad been entitled as owners in cious prosecution. Wright J. said : " As co;h»io«, sucli a mitigation of damages, and a rule, it is only when two or more per- deduction from the recovery, would have sons are entitled to, or liave a joint inter- been proper and necessary. est in, the property affected, or to the 1 Giraud y. Beach, 3 E. D. Smith, 337; damages to be recovered, that they can Hinkle v. Davenport, 88 Iowa, 355, 358 ; unite in an action. Therefore, several Stepank v. Kula, 36 id. 663. parties cannot sue jointly for injuries to 280 CIVIL KEMEDIES. § 232. VII. Actions in special cases. Some special cases which do not fall within the foregoing classification will conclude this branch of the discussion. A policy of fire insurance, containing the clause, " loss, if any, payable to E. B. G., mortgagee," the assured, it was held, could not maintain an action without mak- ing E. B. G. a co-plaintiff, unless it was alleged and proved that the mortgage to him had been paid off so that his interest had ended.^ In several of the States, by virtue of special provisions contained in their codes, partnerships may sue and be sued by the use of the firm name as the parties plaintiff or defendant, in the same manner as though they were corporations. The judgments recovered in such actions against the partnership can only be enforced, in the first instance, against the firm property, and can only be extended so as to bind the individual pi'operty of the several partners by a subsequent direct proceeding against them, or some of them, in the nature of a scire facias.'^ The Kentucky code contains a peculiar provision in reference to actions brought by an assignee of a thing in action where the assignment is equitable merely — that is, where it is not expressly authorized by statute ; in such a case the assignor must be joined as a party either plaintiff or defendant, at the option of the assignee who brings the suit.^ The code of the same State expressly authorizes the owner of land to maintain appropriate actions to recover damages for any trespasses or other injuries committed thereon, although he may not be in the actual possession, or have the person, as for slander, or battery, or held tliat the objection might be taken false imprisonment. For words spoken of at the trial. parties in tlieir joint trade, or for slander ^ Ennis v. Harmony Fire Ins. Co., 3 of title, they may sue jointly ; but not so Bosw. 6IG. And see Ilammell v. Queens when two or more sue for slanderous Ins. Co., 50 Wis. 240. words which, though spoken of all, apply ^ ^qq supra, § 121. Ryerson v. Hen- to them all separately ; or in a case of drie, 22 Iowa, 480. See Wills v. Sim- false imprisonment or a malicious prose- monds, 8 Ilun, 189, 200 (legal action by cation, wiien each, as individuals, are one of several partners against another imprisoned or prosecuted. The prin- one without joining the remaining co- ciple underlying is, that it is not the partners). act, but the consequences, which are » Dean v. English, 18 B. Mon. 135. looked at. Thus, if two persons are This provision is soniewiiat different from injured by the same stroke, the act is that found in the code of Indiana, which one, but it is the consequences, of that requires the assignor, in all cases where act, and not the act itself, which is re- the thing in action is not assigned by dressed, and therefore the injury is sev- indorsement, — that is, where it is not a eral. There cannot be a joint action, negotiable instrument, — tobe joineil as a because one does not share in the suffer- defendant, in order to answer to the as- ing of the other." The court further signment. Indiana Code, § 6. ACTIONS IN SPECIAL CASES. 281 the right to the immediate possession, at the time when the tres- pass or other injury complained of was committed. ^ This is undoubtedly the true interpretation of the codes of all the States without any express provision to that effect. The common-law distinction between " trespass " and " case " being abolished, the owner is entitled to maintain an action and recover damages, by alleging the actual facts which constitute the cause of action, although under the former procedure he would, under certain circumstances, sue in " trespass " and under other circumstances in " case." The nature of the right of action has not been changed, nor has the amount of damages recoverable been affected, but the special and technical rules which governed the use of the two common-law actions mentioned, have certainly been abrogated.^ A legatee or distributee of an estate in the hands of an executor or administrator may, under certain circum- stances, maintain an action to recover a debt or demand due to the deceased, if for any reason the personal representative is legally disabled from suing. Thus, for example, where B. in his lifetime was indebted to A., both die, and the same person is made administrator or executor of each estate, a legatee or dis- tributee of A.'s estate may bring an action in his own name against the one who is thus the administrator of B.'s estate, as well as executor or administrator of A.'s estate. This person, as the representative of one estate, cannot sue himself as represen- tative of the other, and therefore the beneficiaries of the creditor estate are permitted to prosecute the action. It seems, also, that such action can be brought either by one of the legatees or dis- tributees, or by all of them jointly.^ 1 Bebee t\ Hutchinson, 17 B.Mon. 496. mon-law "case," — that is, damages for And see Alexander v. Hurd, 64 N. Y. 228. the injury to the inheritance. To non- 2 Brown v. Bridges, 31 Iowa, 138, 145. suit the plaintiff, is to restore the (Ad dis- A plaintiff suing, as owner of land, for tinctions between these technical actions, injuries done by a wrong-doer, cannot. This doctrine is expressly sustained by consistently with the plain import of the the Supreme Court of Missouri, —Fitch v. codes, be nonsuited, because he was out of Cesser, 54 Mo. 267 ; and by a very recent possession, and not entitled to possession, decision in New York, — Adams v. Farr, 5 Undoubtedly, he may not be able to re- N. Y. Sup. Ct. 59, citing Robinson v. cover such damages as he would have re- Wheeler. 25 N. Y. 252. S. V. Foster v. covered if the action was the common-law Elliot, 33 Iowa, 216, 224. But see Town- " trespass," — that is, damages for the send v. Bissell, 5 N. Y. Sup. Ct. 583, per wrong done to his possession as well as to Gilbert J., a contrary dictum, which, in the inheritance ; but he is certainly en- the face of these authorities, and of the titled to recover such damages as he would code itself, is clearly a mistake. have obtained if the action was the com- ^ Pisher v. Hubbell, 65 Barb. 74 ; s. c. 282 CIVIL REMEDIES. § 233. It is held in New York that a mother may maintain an action for the seduction of her infant daughter where tlie father is dead, and the daughter is dependent upon the mother, although the latter has remarried.^ This rule has also been extended to the case wlien the father is not dead, but has abandoned his wife, who lives separate and apart from him, and maintains herself and family by carrying on a business in which the daughter is actually em})l()yed as an assistant, rendering substantial services. The action being founded upon the relation of master and servant, and not upon that of parent and child, and the mother carrying on a business in which the daughter is employed as a servant, all the requisites of the general doctrine relating to the action of seduction are fully complied with.^ These decisions are based upon common-law principles independently of any changes made by statute. The codes of several States, however, contain special provisions authorizing actions to be brought by fathers, or, in case of their death or desertion of their families, by mothers, and by guardians, to recover damages for the seduction of, or for the death of, or injuries to, their children or wards.^ A woman is 1 N. Y. Sup. Ct. 07. It was also held that Hubbell — the common trustee — should be made a defendant, both as adminis- trator of A.'« estate, and as executor of B.'s estate ; of the latter, because he thus represented the debtor; and of tlie for- mer, because he was the regular plaintiff, and should be made a party in order to conclude the estate by tlie judgment. It was said that, in order to bind the estate of a deceased person, his administrator or executor must be made a party in his representative, capacity ; it is not sufficient that he be made a party. See Ilaynes V. Harris, lio Iowa, 516. In Missouri, the distributees of an estate in the hands of an administratDr may, before an order for distribution is made, all unite in a joint action on the administrator's bond against him and his suretiis. Whether such joint action would be proper after the order for a distribution, (purre. Kelley i-. Thornton, 50 Mo. 32;j. In Kentucky it has been ex- pressly dicided that several distributees cannot unite in a legal action against the administrator to recover the sliares found due to each upon a s-ettlemcnt of the es- tate. Telly V. Bowyer, 7 Bush, &13. For various actions by administrators, exec- utors, legatees, and heirs, see Smith v. Van Ostrand, 64 N. Y. 1^78 ; Lyson v. Blake, 22 Id. 558 ; Dunning v. Ocean Nat. Bank, 61 Id. 45)7 ; Cushman v. Wood, 6 Hun, 520 ; Pendleton v. Dalton, 77 N. C. 67 ; Filbey r. Carver, 44 'Wis. 409 ; Catlin r. Wheeler, 40 Id. 507 ; Harris ;•. Harris, 01 Ind. 117; Taylor v. Fickas, 04 Id. 167 ; LeidyiJ. Nash, 67 Id. 311; McDowell v. IIendrix,67 Id. 513. As toco-plaintiffs in action for contribution, see Ilaghes v. Boone, 81 N. C. 204. 1 I.ampman v. Hammond, 3 N. Y. Sup. Ct. 203 ; Gray i-. Durland, 50 Barb. 100, 51 N. Y. 424 ; Furman v. Van Sise, 56 N. Y. 435 ; Badgley v. Decker, 44 Barb. 577. 2 Badgley v. Decker, 44 Barb. 577. See Cert well v. Iloyt, 6 Hun, 575 (by a grandfather); actions to recover earnings of an infant child, see HoUingsworth i>. Swedenborg, 40 Ind. 378 ; Monaghan i'. School District, 38 Wis. 100. * See supra, § 120, where the States are enumerated. A statute which dis- penses "with any allegation or proof of loss of service " does not change the rules ACTIONS BY HUSBAND AND WIFE. 283 permitted, in a few States, to maintain an action and recover damages for her own seduction.^ § 234. Second: Actiojis hy and between Husband and Wife. The common-law rules as to the power of a wife to bring actions in her own name, and as to the necessity of making husband and wife co-plaintiffs in all actions where she could be a party at all, relating to her property or to wrongs suffered by her, have been either utterly swept away or greatly modified in all the States which have adopted the reformed system of piocediire. These connnon-law requisites were concisely stated in a former para- graph of this section.2 In equity, while as a general rule the husband was joined as a co-plaintiff even in suits touching her equitable separate estate, yet, when their interests were at all antagonistic, and especially when the proceeding was in any manner adverse to him, she was permitted to sue without uniting him with her, and even to make him a defendant. Her action, however, was prosecuted in her name by a next friend. ^ § 235. The statutory legislation upon this subject entirely abandons the common-law theory, and, so far as it resembles any previous doctrine, rather adopts that of the equity tribunals, although in most instances it is far in advance of the greatest liberality ever allowed by the courts of chancery. In New York there is now no instance in wliicli a husband and wife must, or even may, be joined as co-plaintiffs, by virtue merely of the mar- riage relation, in actions affecting either his or her individual rights. If, however, the husband and wife are both in any man- ner interested in the subject-matter of the controversy, they may be united as plaintiffs ; but this would result from the existence and nature of the common interest, and not from the marital relation. Special statutes, in reference to married women and their property, provide that a wife must sue alone, and without a guardian or next friend, in all actions relating to her separate property, which includes all the estate, real and personal, which she owns at the time of the marriage, and all that she may ac- quire subsequently' thereto, and all of her personal earnings, and the proceeds of her business ; in all actions upon contracts made of the law as to tlie parties ; the seduced ^ ggg supra, § 191. woman cannot brine: the action. Wood- * gtory, Eq. PI. §§ 01, 03 ; 1 Daniell's ward I'. An.lerson, It Rush, 624. Chan. PI. (4th Am.'ed.J pp. 109, 110. 1 See su/ird, § 120. And see Thomj)- 80D V. Young, 51 Ind. 599. 284 CIVIL REMEDIES. by and with her in reference to her property, or in the course of any business which she may carry on ; and in all actions brought to recover damages for any injuries to her person or character ; and in all actions against her husband.^ It thus appears that in no case is it proper for a husband to be united as co-plaintiff with his wife, in New York, merely because they are husband and wife. § 236. There are two general types or forms of the statutory provision, as contained in most of the codes, while in a few of the States the legislation is special, as it is in New York. The first of these forms is the following: " When a married woman is a party, her husband must be joined with her, except that, (1) When the action concerns her separate property, she may sue alone ; (2) When the action is between herself and her husband, she may sue and be sued alone ; but in no case shall she be re- quired to sue or defend by guardian or next friend [except she be under the age of twenty-one years — Indiana'] " ^ The other form differs from this in requiring the interposition of a next friend. " When a married woman is a party, her husband must be joined with her ; except when the action concerns her separate property, she may sue alone, without her husband, by a next friend. When the action is between herself and her husband, she may sue or be sued alone ; but in every such action, other than for a divorce or alimony, she shall prosecute and defend by her next friend." " In Iowa, the change is more radical, and reaches the same result as the New York statutes. " A married woman may, in all cases, sue and be sued, without joining her husband with her, to the same extent as if she were unmarried ; and an attachment or judgment in such action shall be enforced ^ Laws of N. y., 1860, ch. 90, § 7 ; fied, but is substantially the same. In Laws of 18G2, ch. 174, §§ 3, 5, 7. The tlie first subdivision the following is in- 114th section (§ 450) of the New York serted after the words "separate prop- code remains unrepealed, although these erty," viz., "or her right or claim to the later statutes have entirely abrogated or homestead propertj'." A third subdivi- modified most of its provisions. sion is added, as follows : " (8) When she 2 This form is found in Indiana code, is living separate and apart from her hus- § 8; Minnesota code. § 20; California band, she may sue or be sued alone." The code, § 370; Wisconsin code, ch. 122, last clause, relating to a guardian or next § 15; Soutli Carolina, § 137; Oregon, friend, is omitted; otherwi.se the provision § 30 ; Neva. Guiod, 14 Cal. '500; Cook v. 2 Pancoast v. Burnell, 32 Iowa, 894. Klink, 8 Cal. 347; Poole v. Gerrard, 6 See Shuler v. Millsap's Ex'orjl N. C. 297. Cal. 71. 3 Boos V. Gomber, 24 Wis. 499. The 5 McCormick v. Penn. Cent. R. R., 49 title being in her, the possession would be N. Y. 303, 317. See also Curtis v. Del. hers if such possession were deemed ne- Lack. & West. R. R., 74 N. Y. 116. cessary to the maintenance of the action. 296 CIVIL EEMEDIES. § 245. Whether, under the legislation of the various States, actions for tort can be maintained by the wife against the husband, or by the husband against the wife, does not seem to have been definitively settled by judicial decision. The departure from the ancient theory of the marriage relation has been as great in New York as in any other commonwealth, and far greater than in most, and yet, as has been shown, the courts of that State have declared against the possibility of actions between the spouses for any personal torts committed by one upon the other, such as libels, assault and battery, and the like. The same result would seem to be inevitable under the more restricted legislation of other States, for their statutes which modify the common-law doctrines of marriage are confined in their terms to her power over her separate property and over contracts. Actions between husband and wife, based upon torts done to property, have arisen, but their propriety has not been finally determined.^ There does not, however, seem to be any real difficulty in principle. If a wife is clothed with full authority over her own property as though she was unmarried, and if, in pursuance thereof, she is permitted to invoke the aid of judicial proceedings in enforcing contracts against her husband, and in recovering from him the possession of lands and chattels, there can be no valid ground for refusing to her the power of maintaining actions against him for the wrongful taking, detention, or conversion of her chattels, or for injuries done to her property by violence or b}" negligence. Both classes of actions depend upon the same fundamental rights, — the rights of property which the statute fully confers upon her. If the owner may recover from her husband the very thing 1 In Owen v. Owen, 22 Iowa, 270, tlie Cole J. said (p. 4G8), after showing^ that wife sued her husband to recover the tlie money continued to be the property of value of certain United States bonds, lier the luisband while in the possession of the separate property, wronfjrfully taken by wife, and that, wJien it passed into the him and converted to his own use. The possession of lier administrator, lie migiit plaintiff' had a verdict and judgment on assert his own right to its possession, the trial, but the Supreme Court declined " which is then for tiie first time, in con- to pass ui)on the question whether such templation of law, denied," — "If the an action was maintainable. In Davidson money was actually converted to her own r. Smith, 20 Iowa, 400, a husband was use, contrary to his will, it was a tort, and permitted to recover against the adminis- not a contract, and such a tort did not trator of his deceased wife the amount of make it her own, and ubi jus ibi remedium. certain money belonging to himself which A proceediini to secure the money to the hus- she had unlawfully taken from his posses- hand in the lifetime of the wife would neces- 6ion, and detained until her death, refusing sarily be an equitable one." to surrender or return it at his request. PLAINTIFFS IN EQUITABLE ACTIONS. 297 itself — the land or chattel — in a real action, it is not an enlarge- ment of her power to suffer her to recover the value of such things wholly or partially in a, personal action. The notion that the proceeding must be equitable is a remnant of the ancient sys- tem which has been abrogated, and is conceived in forgetfulness of the radical changes made by the statutes in the common-law theory of the marriage relation. If the facts constituting the cause of action are stated in the pleading, it is both unnecessary and improper to call the action equitable, since the relief, if granted, is the ordinary pecuniary judgment against the defendant per- sonally, and not a judgment in rem against his property. § 246. The desertion of his wife and family by the husband does not increase her powers and capacities in reference to the bringing and maintaining of judicial proceedings, unless provi- sion is made for such an emergency by express statute. Thus, after such desertion, the wife cannot maintain an action in her own name to set aside a conveyance of land alleged to have been obtained from him by fraud.^ In several States, however, the codes contain express provisions, which, in case of desertion by the husband, permit the wife to prosecute and defend such actions as he might have done.^ § 247. Third : Equitable Actions. The grand principle which underlies the doctrine of equity in relation to parties is, that every judicial controversy should, if possible, be ended in one litigation ; that the decree pronounced in the single suit should determine all rights, interests, and claims, should ascertain and define all conflicting relations, and should forever settle all ques- tions pertaining to the subject-matter. Since the chancery judges were not hampered by the legal dogma that one judgment must be rendered alike. for all the plaintiffs and against all the defend- ants on the record, they were enabled to adopt and enforce such practical rules as would render this principle operative and effi- cient. In disclosing these rules, and in explaining their applica- tion, I am not confined to decisions made by courts professedly governed by the reformed procedure. The codes, as has already been shown, have taken the most general doctrines of equity in relation to parties, have put them into a statutory form, and have made them applicable without exception to all actions. Whether these doctrines have been entirely incorporated into the legal ^ Green v. Lyndes, 12 Wis. 404. - See supra, § 230. 298 CIVIL REMEDIES. actions under the codes has sometimes been doubted ; it is univer- sally admitted, however, that they are operative with their full force and effect in all equitable actions which may be brought in accordance with the new procedure. For the purpose of ascer- taining the existing rules which control the selection of parties in equitable actions, we are not, therefore, restricted to those States which have accepted the reform ; we may and must extend our inquiry to England and to other States of this country wher- ever equity exists as a separate division of the municipal law. I shall endeavor, in a very condensed and summary manner, to give the doctrine of parties plaintiff, which has been established by courts of equity and in equitable actions, whether prior or subse- quent to the great reform introduced into so many of the States, and the result will express the law as it now exists in those States.^ § 248. It is impossible to lay down with precision many rules in reference to plaintiffs, because equity does not particularly concern itself with determining that such a person shall be a plaintiff, and such another a defendant, but rather requires in a more general form that the persons shall be parties, so as to be bound by the decree, and is in general satisfied if they are thus brought before the court either as plaintiffs or as defendants. In other words, the rules of equity seldom declare that a given per- son or class of persons must be plaintiffs, but simply declare that such person or class must be made parties, if not as plaintiffs, then as defendants.^ The result is that the positive rules as announced by courts and as gathered from a comparison of deci- sions, are much more full and explicit in reference to defendants than they are in reference to plaintiffs. In actual practice, all persons having an interest in the subject-matter, and therefore either necessary or proper parties, except the actual plaintiff who institutes and prosecutes the suit, are generally made defendants, even though their interests may be concurrent with those of this plaintiff. Still, different individuals holding different rights may be united as plaintiffs in equitable actions; such a joinder is often provided for by well-settled doctrines, and, although their require- ^ In tliis subdivision I liave drawn American editor, and liave closely fol- very largely upon tlie fourth AnuTJcan lowed that most admirable work, edition of Duiiieli's Chancery I'leadings, - See Wilkius v. Fry, 1 Meriv. 244, and the learned notes of Mr. Perkins, the 202. PLAINTIFFS IN EQUITABLE ACTIONS. 299 ment is not peremptory, these doctrines must be discussed and fully stated. The persons that can be made co-plaintiffs in an equity suit may be roughly separated into two general classes : (1) Those whose rights, claims, and interests, as against the de- fendant, are joint, — not necessarily joint in the strict, technical sense of the common law, but in a broader and j)opular sense, — that is, those whose interests, claims, and rights, whether legal or equitable, are concurrent, arising out of the same events, having the same general nature, and entitled to the same sort of relief. All such persons must be brought before the court as parties, and naturally they should be plaintiffs, and so the rules primarily re- quire ; but the requirement is by no means peremptory, and in mau}^ and in even the great majority of instances, the equity principle is satisfied if all but the one who actually sets the cause in motion are placed among the defendants. (2) In the second class are found all those persons who are collaterally interested in the subject-matter of the controversy, whose interests and claims, although antagonistic to the defendant, and to that ex- tent, therefore, in harmony with those of the real plaintiff, are still several and distinct in their nature, arising from different facts and circumstances, and demanding perhaps a different re- lief. Although the individuals or the class which have been thus vaguely described may be joined as co-plaintiffs with the one who is the chief actor in the suit, and although the rules speak of such a joinder as possible, yet in actual practice they are almost invariably placed among the defendants. With this preliminary explanation, which modifies the entire doctrine of equity in rela- tion to plaintiffs, I shall proceed to state the general principles which underlie the whole equitable system of parties, and to illustrate the working of these principles in the more important species and varieties of actions by which equitable remedies are conferred. § 249. The fundamental principle maybe stated as follows: The plaintiff who institutes an equitable action must bring before the court all those persons who have such relations to the subject- matter of the controversy that, in order to prevent further liti- gation by them, they must be included in and bound by the present decree ; in other words, all those persons who are so related to the controversy and its subject-matter, that, unless thus concluded by the decree, they might set up some future claim, 300 CmL REMEDIES. and commence some future litigation growing out of or connected with the same subject-matter, against the defendant who is pros- ecuted in the present suit, and from whom the relief therein is actually obtained. The principle as thus expressed assumes, what is always true in practice, that in every equitable action there is some person, or group of persons, like a firm or joint tenants, who primarily institutes the proceeding, and demands the relief for his own benefit : and him, or them, we may designate ** the plaLn- nfF; "* and there is also some person or group of persons against whom all the real demands are made, and from whom the sub- stantial remedy sought by the action is asked, — and him we denominate ** the defendant." In addition to these two con- testants, there are the other individuals described in the foregoing proposition, who must also be brought before the court and made parties to the controversy either as co-plain tiffs or as co-defendants. Equity is satisfied in most instances by making them co-defend- ants, and they are generally so treated in actual practice, unless their interests are so identical with those of the plaintiff that they must participate in the substantial relief awarded by the decree. The special subject of our present inquiry may therefore be stated thus : In what c;ises and under what circumstances are such per- sons primarily and naturally to be associated as co-plaintiffs rather than as co-defendants? The answer to this question embodies the principle in its most general form which equity courts have applied in all species of actions to determine the proper joinder of plaintiffs. All those persons whose rights and interests in the subject-matter, and in the relief demanded, are concurrent with the plaintiffs, must be made pirties, and naturally will be made co-plaintiffs, although it is sufficient in most instances if they are brought into the cause as co-defendants. The principle in this very general fonn is too vague to be of any value as a practical rule, and I shall therefore take up in order the most important classes of cases in which it is applied.^ § 250. The first of the subordinate general principles into which the foregoing vasnie doctrine raav be subdivided, is the following : When the actual plaintiff, as al)Ove described, has only an equitable estate, interest, or primary right in the subject- matter of the suit, the person who holds the legal estate, inter- est, or right therein, should be made a party, and primarily a ^ See Janes r. Williams, 31 Ark. 175 ; Pfohl v. Simpson, 74 N. Y. 137. PLAINTIFFS IN EQUITABLE ACTIONS. 301 co-plaintiff; for without such joinder the defendant miglit be subjected to another litigation from this legal owner or holder of the legal title, a result which equity strives in every way to pre- vent.^ One of the most familiar as well as important illustra- tions of this general principle is the rule which prevails in suits relating to trust property. When property is held in trust, and an action concerning it is brought by the beneficiary or person claiming under the trust, the trustee, or one in whom the legal title is vested, must be made a co-plaintiff.^ As, for example, when a mortgage has been given to a trustee in trust for certain bene- ficiaries, the trustee and the beneficiaries must unite in a suit to foreclose.''^ The principle applies to all cases where the legal title to sue stands in one, and the beneficial interest in the sub- ject and in the result is held by another ; both must unite as plain- tiffs. Thus, if a covenant is made with a trustee for the benefit of a cestui que trust, both must join in an action to compel a specific performance.^ The case of a simple contract, made by an agent, when the agency appears on the face of the agreement, or can be easily established by extrinsic evidence, does not fall wdthin the operation of this rule, for the principal can sue alone and prove the agency if it is disputed. If, however, the agency does not appear in the contract itself, and the principal or person for whom the agreement is made cannot prove it with ease and certainty, then the agent may be made a party so as to bind his interest.^ When an agent acts in any transaction on his own account as well as on account of his principal, so that he has a 1 1 Daniell's, p. 192. * Story Eq. PI. § 209 ; Cope v. Parry, 2 1 Daniell's, p. 193. See "Western 2 Jac. & Walk. 538. See McCotter v. R. R. V. Nolan, 48 N. Y. 513 ; Malin c. Lawrence, 6 N. Y. Sup. Ct. 392, 395. Malin, 2 Johns. Cii. 238; Fish v. IIow- 5 i Daniell's, p. 19G; Botsford v. Burr, and, 1 Paige, 20 ; Cassiday v. McDaniel, 2 Johns. Ch. 409 ; Bartlett i\ PickersKill, 8 B. Mon. 519 ; Covington, &c. R. R. v. 1 Cox, 15. It should be rememliored that Bowlier's Heirs, 9 Bush, 408. See also when a contract is made by an agent in Weetjin v. Vibbard, 5 Ilun, 265 ; Wes- his own name, expressly for the benefit tern R. R. v. Nolan, 48 N. Y. 513 ; Sand- of another, lie is, according to the codes, ford V. Jodcll, 2 Sm. & Giff. 70 ; O'Brien a trustee of an express trust, and may sue V. O'Connell, 7 Hun, 228 ; Holden v. N. Y. upon it in his own name, without joining & Erie Bk., 72 N. Y. 28G, 297 ; Eldridge v. the beneficiary as a party. To this extent Putnam, 46 Wis. 205 ; Dewey v. Moyer, the new procedure has modified the rule 9 Hun, 473 ; Fort Stanwix Bk. v. Leggett, which prevailed in equity, and which re- 51 N. Y. 552 ; Fox v. Moyer, 54 id. 125. quired that both persons should join in 3 Story Eq. PL, §§ 201, 209 ; Wood v. bringing the action. Williams, 4 Mad. 86 ; Ilichens v. Kelly, 2 Sm. & G. 204. 302 CR^IL REMEDIES. beneficial interest in the subject-matter, he must be made a co-plaintiff with his principal.^ § 251. The case of suits brought by the assignees of things in action is another special example of this general principle. Where a legal thing in .action had been assigned, the assignee was per- mitted to sue in equity for its enforcement in his own name, but the assignor, or his personal representative if he was dead, was an indispensable party, if not as a co-plaintiff, then as a defend- ant; otherwise the debtor might be subjected to a second action at law in the name of the assignor.^ This particular rule, how- ever, as has been shown in the preceding sections of the present chapter, has been entirely abrogated in most of the States that have adopted the new procedure, since their codes expressly per- mit the assignee to sue alone without joining the assignor either as a co-plaintiff or as a defendant ; but it is substantially retained by the codes of Kentucky and of Indiana. § 252. In ordinary suits for the administration of the estates of deceased persons brought b}' creditors, legatees, or distributees, a general personal representative of the estate — an administrator or executor — is indispensable, and is a necessary party, and should properly be made a co-plaintiff, although he may be put with the defendants.^ These ordinar}" administration suits, which are the common means in England of winding up and settling the estates of decedents, are practically unknown in this country. It is only under some exceptional circumstances that the equity jurisdiction is with us invoked, not to supersede the action of the probate courts, but to aid it, when if left to itself it would fail to afford complete relief and to do complete justice. When- ever such exceptional circumstances exist, and by reason of fraud, collusion, or other similar cause on the part of the execu- tor or administrator, a creditor, or legatee, or distributee of an 1 Small V. Attwood, 1 Younge, 407. assignment of a legal and of an equitable 2 1 Daniell's, pp. 197-200, and cases thing in action in respect to tlie parties. there cited. Wliere an equitable thing " 1 Daniell's, p. 201 ; Penny v. Watts, in action, or an equitable interest, was 2 Phil. 14'J, 153; Donald v. Bather, 16 assigned, the assignee could sue alone, Beav. 26 ; Croft i-. Waterton, 13 Sim. since there was no possible danger of an 66-'>. For illustrations of suits by adminis- action at law by the assignor. Padwick trators, heirs, &.C., see Marsh v. Bd. of V. Piatt, 11 Beav. oO.'J ; Bagshaw ;•. East- Supervisors, 38 Wis. 250; Jones v. Bills- ern Union R. Co., 7 Hare, 114; Blake v. tein, 28 id. 221 ; Chipman i'. Montgomery, Jones, 3 Anst. 051. There is no difference, 63 N. Y. 221; Allison v. Robinson, 78 under the codes generally, between the N. C. 222 ; Harris v. Bryant, 83 id. 568. PLAINTIFFS IN EQUITABLE ACTIONS. 303 estate, may and does bring an action on behalf of the estate, even in such a case the personal representative — the administrator or executor — is a necessary party ; if lie is not united as a co-plain- tiff, he must be added as a defendant.^ § 253. In all the foregoing instances the rule has been applied to the holders of a legal and of an equitable estate or interest in the subject-matter; it extends also to all persons having legal demands against the defendant arising out of the same subject- matter or event. Thus, where a lease has been assigned by the lessee, both the lessor and the lessee may each sue the assignee at law for a breach by him of the covenants. In equity, how- ever, neither is permitted to sue the assignee without joining the other also, so that the defendant cannot be subjected to a double action and recovery .^ § 254. In the class of cases thus far examined, either an equi- table right existed in one person and a legal right in another, or a legal right was held by all. The same principle extends to the very numerous class of cases in which the rights against the de- fendant arising from the same subject-matter or event are all equitable. Whenever, therefore, in addition to the plaintiff who 1 Attorney-General v. Wj-nne, Mos. profits resultinjf from its use. The action 126; Wilson v. Moore, 1 My. & K. 120, was held to be properly brought. Downer 142; Saunders u. Druce, 3 Drew. 140. As J. said (p. 133) : " The administrator can- examples of such actions, see Fisher v. not avoid his own sale, though he was Hubbell, 7 Lans. 481 ; 65 Barb. 74 ; 1 N.Y. guilty of fraud in making it. If lie dies, Sup. Ct. 97 ; in which the same person or is removed, and an administrator de was executor of the estates of A. and of bonis non is appointed, the latter cannot B., and tlie plaintiffs, legatees of A., had avoid the wrongful sale by the first ad- claims which placed them in the position ministrator. This is the rule, except of creditor.s to the estate of B. ; and Lan- wliere there are statutory provisions au- caster v. Gould, 46 Ind. 397, which was thorizing the administrator c/e io>?/sno« to an action by legatees and next of kin, do what otherwise the creditors, legatees, against a creditor of the estate and the or distributees alone could do. . . . Cred- executor, to set aside a fraudulent allow- itors, legatees, and distributees are the ance and paymentof a claim made by the persons who have a right to bring a suit executor to tlie creditor ; and Stronach v. in such a case. As there are no creditors Stronach, 20 Wis. 129,133. An admin- or legatees, the suit was rightfully brouglit istrator having frauduently assigned and by the next of kin. If tlie widow is one of transferred certain personal property be- the distributees, she ought to be a party." longing to the estate to a person who was See also Hills v. Sherwood, 48 Cal. 386, a participant in the fraud, the children of 392; Haynes v. Harris, 33 Iowa, 510, 518- tlie intestate, who were his only next of 620. kin, united in an action against the ad- - 1 Daniell's, pp. 206, 207 ; Sainstry v. ministrator and liis assignee to set aside Granimer, 2 Eq. Cas. Abr. 165; City of the transfer, and for a delivery up of the London v. Kichmond, 2 Vern. 421; 1 Bro. property to the plaintiffs by the assignee, P. C. 616. or for an account of its value and the 304 CIYIL REMEDIES. actually institutes the action, there are other persons having con- current equitable rights against the defendant growing out of the same subject-matter, they should in general be made parties to the action, primarily no doubt as co-plaintiffs, but, if not, then as defendants. The doctrine thus stated in general terms has a very wide application, and ui^on it are based a ver}' large portion of the special rules as to parties which prevail in equity. It in- cludes not only those who have concurrent rights in the whole subject-matter of the suit, but those also who have similar rights in a part of it, such as joint tenants, who must all be parties in an action concerning the property.^ In a suit by joint tenants ol tenants in common for a partition, all must be before the court; but it is not necessary of course that all should be plaintiffs.^ There have been relaxations of this general rule. An action by three out of forty-seven tenants in common, brought to restrain the defendants from quarrying stone upon the land which was owned in common by the whole number, has been sustained, not- withstanding an objection on the ground of the non-joinder was interposed.^ And where one tenant in common had leased his share for a long period of years, the lessee w^as permitted to maintain a partition against the other tenants in common, without making the reversioner of his own share — the lessor — a party .^ And generally a tenant for life may institute a partition without bringing in the remainder-men.^ When land is held by tenants in common for life, or when there are future contingent interests which may finally vest in persons not yet in being, a partition may be had between those who possess the present estates ; but it will only be binding upon the parties who are before the court and those who are virtually represented by such parties.^ In an 1 1 Daniell's, pp. 207, 208 ; na3-cock rather as a defendant than as a plaintiff. V. Haycock, 2 Ch. Cas. 124 ; Weston v. Eosekrans v. White, 7 Lans. 480. The Keigliley, Fincli, 82; Stafford v. City administrator of a deceased tenant in of London, 1 P. Wms. 428 ; 1 Stra. 95. common may, under certain circum- Where tiiere are two or more trustees, stances, be a proper party, together with they must all unite, since their interest is his heirs, in a partition. Scott r. Guern- strictiy joint. Thatcher v. Candee, 33 sey, GO Barb. 163, 181. See Sullivan v. How. Pr. 145 (N. Y. Ct. of App.). Sullivan, 4 Hun, 198 (partition). 2 Anon., 3 Swanst. 139; Brashear v. 3 Ackroyd v. Bripgs, 14 W. R. 25. Macey, 3 J. J. iMarsii. 03; Braker i-. l)ev- * Baring r. Nash, 1 Yes. & B. 651; ereaux, 8 Paige, 51'3; Borah v. Archer,«, Hcaton r. Dearden, I'J Beav. 147. 7 Dana, 176; Cornisli c. Gest, 2 Cox, 27. & Wills >:. Slade, (5 Ves. 498 ; Brassey y. In partition by a tenant in common, his Chalmers, 4 De G., M. &G. 528. wife is not a necessary co-plaintiff ; she " Wotten v. Copeland, 7 Johns. Ch. ebould be made a party to the action, but 140 ; Striker v. Mott, 2 Paige, 387, 389 ; PLAINTIFFS IN EQUITABLE ACTIONS. 305 action Lrougiit to determine boundaries, all persons interested, whether their estates are present or future, remainder-men and reversioners, must be parties, although of course all need not be plaintiffs.^ It is not necessary, as a general rule, to make the actual occupying tenants or lessees parties in suits relating to real property. They must, however, be parties in special cases where they are directly interested and their concurrence is necessary ; as, for example, in a partition suit where a tenant in common has leased his share, and in a suit brought to restrain an ejectment which was instituted against the tenants themselves instead of against their k'ssor.^ If, on the other hand, lessees, or any persons holding limited interests, sue to establish some gen- eral right, that is, some right belonging to or affecting the whole estate and not merely their own temporaiy possession and user, the ultimate owners of the inheritance must also be made parties, so that they may be bound by the decree, but the requirement will be satisfied by making them defendants.^ Thus, where a lessee brought an action to establish a right of way against a person who had erected an obstruction, it was held that his lessor should have been joined as a party to the suit.^ § 255. The doctrine that 2)ersons having or claiming a joint interest or estate must unite, extends to actions which relate to personal property as well as to tliose which relate to real prop- erty.^ The following particular instances will illustrate this application. If a legacy is given to two jointly, both must sue for it ; but if legacies are given separately, there being no com- mon interest in any particular one, each legatee may sue for his own.^ Where two or more persons are jointly interested in the money secured by a mortgage, that is, according to the law pre- vailing in this country, when they are joint mortgagees or joint assignees of a mortgage, they must all unite in a foreclosure^ VVoodworth v. Campbell, 5 Paige, 518; ^ \ Daniell's, pp. 209, 210. Gaskell v. Gaskell, G Sim. 643. * Poore c. Clarke, 2 Atk. 515. 1 1 Daniell's, p. 209; Story Eq. PI. 5 1 Daniell's, p. 211. § 165; Bayley r. Best, 1 Russ. & My. 6 Haycock r. Haycock, 2 Ch. Cas. 124 ; 659 ; Miller y.Warmington, 1 Jac. & Walk. Huglisen v. Cookson, 3 Y. & C. 578. 484; Specr v. Crawter, 2 Meriv. 410; 7 gtory Eq. PI. § 201; Stucker v Attorney-General v. Stepliens, 1 K. & J. Stucker, 3 J. J. Marsh. 301 ; Wing v 724, 6 DeG , M. & G. Ill ; Pope v. Me- Davis, 7 Greenl. 31 ; Noyes v. Sawyer, 3 lone, 2 A. K. Marsh 239. Vt. IGO ; Woodward v. Wood, 19 Ala. 213 2 1 Daniell's, p. 209 ; Story Eq. PL Palmer v Earl of Carlisle, 1 S. & S. 423 § 151 ; Lawley v. Walden, 3 Swanst. 142; Lowe v. Morgan, 1 Bro. C. C. 368; Stans Poole V. Marsh, 8 Sim. 528. field v. Hobson, IG Beav. 189. For an eX' 20 306 CIVIL REMEDIES. And it is not even necessaiy that they should be joint holders of the debt secured by the mortgage. All persons who are entitled to share in the proceeds, whether their interest is joint or in common, or several, must be made co-plaintiffs, or at least must be brought into the action as defendants.^ When, however, the mortgage has been assigned to trustees in trust for the benefit of creditors, the trustees are the only necessary parties plaintiff in a foreclosure suit, and the creditors being represented by them need not be joined.^ Actions to foreclose mortgages upon land, and those to enforce and foreclose the vendor's lien upon land for the purchase-price thereof, are in all respects based upon the same principles. The equitable doctrine prevailing in by far the greater part of the States, and which has entirely displaced the legal notion, regards the debt as the essential fact, and the mort- gage as a mere incident thereto. The holder of the mortgage has therefore no estate in the mortgaged premises. Whoever is interested in the debt as one of the creditors is therefore inter- ested in the mortgage or in the vendor's lien, and, upon the well- settled rules of equity procedure, all must be made parties in order to avoid a division of the claim and a multiplicity of ac- tions. In the western States it is very common, on the sale of land, for the vendor to take tlie vendee's notes payable at suc- cessive dates for the price, and either to receive back a mortgage given to secure such notes, or to rel}' upon the equitable lien arising from the sale as the security. All the holders of such notes must join as plaintiffs in an action to foreclose, whether the security be a mortgage or the mere vendor's lien.^ A note and ample of misjoinder, because there was different mortgagees. All but one joined no community of interest, see Ferris ». in a foreclosure, and he was afterwards Dickerson, 47 Ind. 382. See also Thomp- permitted to foreclose for his own belialf, son V. Smitli, 63 N. Y. 301 (a vendor's making the other mortgagees, as well as lien); Simpson v. Satterlec, 04 id. 057; all other persons interested, defendants. 6 Hun, 305 (where the holder of a mort- See, per contra, Montgomcrie v. Marquis gage has assigned it as collateral security, of Bath, 3 Vcs. 500, — a case which has he may foreclose, but the assignee must been severely criticised, also be joined as a necessary party); - Morley v. Morley, 25 Beav. 2-53; Church V. Smith, 39 Wis. 4'.)2 (in an action Thomas v. Dunning, s' De G. & S. 018 ; by a grantor to enforce the grantor's lien, Knight v. Pocock, 24 Reav. 430. when a portion of the notes given for in- " Pettibone r. Edwards, 15 Wis. 95; stalments of the fund have been assigned, Jenkins v. Smith, 4 Mete. (Ky.) 380; the assignees are necessary parties). Merritt v. Wells, 18 Ind. 171 ; Goodall v. 1 Story Kq. PI. § 201 ; Goodall v. Mopley, 45 Ind. 355, 358. See, however. Mopley, 45 Ind. 355, 358. In this case a liankin ;;. Major. 9 Iowa, 297. Upon the mortgage had been executed to several death of a vendor, it is held, in Kentucky, PLAINTIFFS IN EQUITABLE ACTIONS. 307 mortgage having been given to a husband and wife as security for money of the wife loaned to the mortgagor, and the husband dying, the wife was held to be the proper party to sue in her own name, either as the surviving promisee and mortgagee, or because the contract concerned her separate estate.^ § 256. The rule which regulates actions to foreclose prevails also in those brought to redeem. As all the persons entitled to share in the mortgage debt must unite in the foreclosure suit, so in a suit to redeem, the mortgagor, and all others who have a common right with hiiu to redeem, must be made parties; in strict theory they should be co-plaintiffs, but it is sufficient if the one who for his own purposes institutes the action adds the others as defendants.^ Where a judgment of foreclosure had been obtained on a mortgage, and, with the authorit}^ or knowledge of the mortgagee, the sheriff sold the premises in the usual manner, but at a merely nominal price, it was held, in Indiana, that the mortgagor and the mortgagee might unite in an action to set the sale aside, and to redeem the land from the purchaser, — the mortgagor by virtue of his ownership, and the mortgagee by virtue of his interest in having a price produced at the sale large enough to pay his entire claim.-^ The general doctrine above stated is strictly enforced in redemption suits of all varieties, the underlying principle being that a redemption must be complete and total, that the creditor shall not be compelled to accept a that his heirs must be joined as plaintiffs death of the mortgagee, his lieirs must, in a suit to enforce the lien for purchase- in general, be parties to the foreclosure, money, that the administrator cannot although tiiere are some exceptions, as maintain the action alone. Anderson v. when they are non-residents, and have Sutton, 2 Duv. 480, 486 ; Smith v. West's simply the dry legal title without any Executors, 5 Litt. 48 ; Edwards v. Bohan- beneficial interest, the mortgage having non, 2 Dana, 98 ; Thornton v. Knox's been assigned by the mortgagee. Ether- Executors, G B. Mon. 74. This ruling idge v. Vernoy, 71 N. C. 184, 185, 187. must, I think, be confined to the case of i Shockley v. Shockley, 20 Ind. 108. a contract to sell, where the legal title ^ 1 Daniell's, pp. 212, 213 ; Story Eq. remains in the heirs and they must con- PI. § 201 ; Chapman v. Hunt, 1 McCarter, vey to the vendee. If tlie land has al- 140 ; Large v. Van Doren, 1 McCarter, ready been conveyed, the heirs cannot be 208. See also Ilaggerson v. Phillips, 37 necessary parties. As the debt due for Wis. 304 (widow of a deceased mortgagor the purchase price is a personal asset, it is not a necessary party) ; Parker v. belongs to the personal estate, and falls Small, 58 Ind. 349 (in a suit to redeem by within the exclusive control of the ad- a grantee, the grantor is not a necessary ministrator. Any proceeding to enforce party). its collection, it would seem, sliould be ^ Berkshire i\ Shultz, 25 Ind. 523. instituted by the administrator alone. In See also McCulloch's Administrator v. North Carolina, the English doctrine as Ilollingsworth, 27 Ind. 115; Stringfield to mortgages still prevails, and, upon the v. Graff, 22 lov/a, 438. 308 CIVIL REMEDIES. partial payment of his claim, or to make a partial surrender of his securities. When two tracts of land are mortgaged to the same person to secure the same debt, and they afterwards come into the hands of different proprietors, one of them cannot be redeemed without the other; the owners of both the parcels, and all per- sjons interested in them, must be parties to the action, if not all as plaintiffs, then at least as defendants.^ This joinder of the persons interested in the two estates is only necessary, however, while the mortgages are held by the same mortgagee or other holder. If one of them is assigned, or if by any other means they come into the hands of different holders, they being on dis- tinct parcels of land, all connection between them is severed, and the actions to redeem must be separate.^ If the action to redeem is brought by an incumbrancer, the same rule a])plies. In a suit by an incumbrancer, who seeks to redeem from a prior incum- brance, the mortgagor or owner of the land subject to the incum- brances, whatever they may be, is an indispensable party, although not necessarily a plaintiff.^ While a second mortgagee, in an action to redeem, must thus bring in the mortgagor or his heir or other owner of the land, he may foreclose the mortgagor and a third mortgagee without joining the first mortgagee as a party, since his proceeding does not in the least affect the rights of such first mortgagee, but its effect is merely to put himself in the place of the mortgagor and of the third mortgagee.* This rule may be stated in a more general form. In suits brought to en- force subsequent claims, interests, or incumbrances, on property subject to prior charges which are to be left unaffected, the holders of such prior liens or interests need not be made parties.^ 1 Story Eq. VI, §§ 182, 287 ; Palk v. Palk i'. Lord Clinton, 12 Ves. 48 ; Hallock Lord Clinton, 12 Ves. 48 ; Lord Choi- v. Smith, 4 Johns. Ch. G49. mondeley v. Lord Clinton, 2 .Jae. & W. ■* 1 Daniell's, p. 214; Story Eq. PI. 1, 134 ; Ireson v. Dcnn, 2 Cox, 425 ; Jones § 19.3 ; Rose v. Page, 2 Sim. 471 ; Briscoe V. Smith, 2 Ves. 372; 6 Ves. 229 (n.) ; v. Kenrick, 1 Coop. temp. Cott 371 ; Watts V. Symes, 1 De G. M. & G. 240 ; Arnold v. Bainbrigge. 2 De G. F. & J. 92 ; •ra.«sc!l V. Smith, 2 De G. & J. 71.S ; Vint Audsley r. Horn, 26 Beav. 195 ; 1 De G., r. Padget, 2 De G. & J. 611; Selby v. F. & J. 226; Person v. Merrick, 5 Wis. Pomfret, 1 ,J. & II. .3.36; .3 De G. F. & J. 231 ; Wright v. Bundy, 11 Ind. 398. In 595 ; Bailey v. Myrick, 36 Me. 50. England, if the plaintiff in such an action - Willie '.'. Lugg, 2 Eden, 78. brings in the prior mortgagee, he must =' 1 Daniell's, p. 214 ; Story Eq. PI. ofll'r to redeem his mortgage. Gordon §§ 84, 186, 195 ; Thomson v. Basker- v. Ilorsfall, 5 Moore, .393. vill, 3 Ch. Rep. 215 ; Farmer v. Curtis, » j Daniell's, p. 214 ; Rose v. Page, 2 2 Sim. 466; Hunter v. Macklew, 5 Hare, Rim. 471 ; Parker v. Fuller, 1 R. & M. 2.38; Fell v. Brown, 2 Bro. C. C. 276; 056. PLAINTIFFS IN EQUITABLE ACTIONS. 309 § 257. The general principle that all persons concurrently interested in the subject-matter of the suit or in its result, whether that relate to real or to personal property, must be par- ties, is invoked and strictly enforced in all species of actions which are brought to obtain an accounting against the defendant. The remedy of accounting is multiform, and it is often made the basis of some further and ulterior relief, such as rescission and cancellation, redemption, and the like ; but wherever an account- ing is sought, either for its own sake or as the preliminary step to further judicial action, the rules as to parties are controlling. When several persons are interested in having an account taken, or in its result, one of them cannot be permitted to institute a proceeding for that purpose by himself alone and without joining the others in some manner, so that they shall be bound by the decree, for otherwise the defendant would be exposed to as many actions as there are persons interested, each brought and main- tained for the same purpose and upon substantially the same proofs.! The actions in which an accounting is necessary are very numerous, and arise out of external circumstances very unlike, but, in all of them, the rule as thus stated must be fol- lowed in the selection of the parties. Thus in a partnership, or any other like adventure where there is a sharing of profits or losses, all the persons having shares must be made parties to a suit brought for an accounting.^ Under the proper circumstances one may sometimes sue on behalf of himself and all the others interested, and it is not indispensable that the individuals having concurrent rights should all be joined as plaintiffs in the action.^ If, however, one or more of the parties are non-residents, and beyond the jurisdiction of the court, the rule, under such circum- stances, is sometimes relaxed, and the action is allowed to pro- ceed with those parties who are within the reach of the court and its process. The admission of this exception, or of similar ones, is not, however, a matter of absolute right; it depends rather 1 1 Daniell's, p. 21G ; Petrie v. Petrie, Hammond v. Pennock, 61 N. Y. 145 (re- 7 Lans. 90. See also Getty v. Develin, 70 scission on account of fraud). N. Y. 504 (accounting) ; Pfohl v. Simp- ■^ Ireton v. Lewes, Finch, 96 ; Moffat son, 74 id. 137 (action ap;ainst a fund or v. Farquharson, 2 Bro. C. C. 338. a class of persons) ; Eldridge v. Putnam, » gtory Eq. PI. § 166 ; Good v. Blew- 46 Wis. 205 (all the cestiiis que trustent itt, 13 Ves. 397 ; Cullen v. Duke of must join in an action against the trus- Queensbury, 1 Bro. C. C. 101 ; Hills v. tee for an accounting) ; Hughes r. Boone, Nash, 1 Phila. 594 ; Wells v. Strange, 5 81 N. C. 204 (action for contribution) ; Ga. 22; Mudgett v. Gager, 52 Me. 541. 310 CIVIL REMEDIES. upon the sound discretion of the court regulated by considera- tions of equity and justice.^ The heirs of a deceased partner must be parties in an action brought to sell real estate of the firm in winding up the partnership and paying the firm debts ; although the land is, for the purpose of paying firm debts, treated in equity as a personal asset, yet the legal title of the heir must be divested, and to that end he must be brought in as a party .^ On the death of a partner, his personal representative may at once maintain an action against the survivors for an accounting; and when there was no real estate held by the firm as a part of its assets, so that no question can arise as to the title of any lands, the heirs of the deceased are neither necessary nor proper parties to such action.^ § 258. Another example is found in the action by a residuary legatee, brought to obtain an account of his share of the residue ; he must make all persons interested in the residue parties, even though their interest may be quite remote and contin- gent.'* One residuary legatee may sometimes sue on behalf of all others interested.^ Also in a suit by next of Idn or distrib- utees against the administrator for an account, all of the next of kin or distributees must be parties, naturally as plaintiffs, but if not, then as defendants. This is the established equity rule prior to or independent of any changes made by statutes.^ These 1 The following cases will show to Arendell v. Blackwell, Dev. Eq. 354 ; what extent, and under what circum- Bethel v. Wilson, 1 Dev. & Bat. Eq. 610. stances, tlie rule has been relaxed : Story As illustrations of such remote and con- Eq. PI. § 78; Darwent v. Walton, 2 Atk. tingent interests, see Sherrit v. Birch, 3 510; Walley v. Walley, 1 Vern. 487; Bro. C. C. 229 (Perkins's ed., note); Towle I'. Pierce, 12 Mete. 329; Vose v. Davies v. Davies, 11 Eng. L. & Eq. R. Piiilhrook, 3 Story, 335; Lawrence v. 199; Lenaghan r. Smith, 2 Phil. 301; Kokes, 53 Me. 110, 116; Fuller i'. Benja- Smith v. Snow, 3 Mad. 10; Hares v. min, 23 Me. 255. Stringer, 15 Beav. 206; Grace v. Terring- 2 Pugh f. Curric, 5 Ala. 446 ; Lang v. ton, 1 Coll. 3. Waring, 25 Ala. 625; Andrews v. Brown, ^ Kettle r. Crary, 1 Paige, 417, 419, 21 Ala. 437. 420; Ross v. Crary, 1 Paige, 416; Hal- 3 Cheeseman v. Wiggins, IN. Y. Sup. left r. Ilallott, 2 Paige, 15, 19; Egberts y. Ct. 595. Woods, 3 Paige, 517. 4 1 Daniell's, pp. 216, 217; Story Eq. 6 1 Daniell's, pp. 217, 218; Story Eq. PI. §§ 89, 203, 204 ; Parsons v. Neville, 3 PI. § 89 ; Hawkins v. Hawkins, 1 Hare, Bro. C. C. 305 ; Cockburn v. Thompson, 543, 540 ; Noland v. Turner, 5 J. J. Marsh. 16 Ves. 328 ; Brown v. Ricketts, 3 Johns. 179 ; West v. Randall, 2 Mason, 181, 190 ; Ch. 553 ; Davoue v. Fanning, 4 Johns. Kellar i-. Beelor, 5 Monr. 573 ; Oldham Ch. 190 ; Pritchard v. Hicks, 1 Paige, v. Collins, 4 J. J. Marsh. 50. See Petrie 270; Sheppard r. Starke, 3 Munf. 29; v. Petrie, 7 Lans. 90. Where land and West V. Randall, 2 Mason, 181, 190-199 ; personal property had been conveyed to Uuson V. McKenzie, Dev. Eq. 463 ; a trustee upon certain trusts for a benefl- PLAINTIFFS IN EQUITABLE ACTIONS. 311 instances of distributees and residuary legatees thus given are in fact particular cases of a more general rule in reference to actions which have for their object, in whole or in part, an accounting by the defendant, which may be stated as follows : When the per- sons assert the claim to an account as a portion of a class entitled under a general description, all the members of that class, or all the individuals included under that general description, must be before the court ; if not among the original parties to the suit, they must be brought in before the final hearing, so that the rights of the entire body can be determined in one decree, and the defendant relieved from the possibility of a multiplicity of actions. Primarily, all these persons being interested in the account adversely to the defendant, they should all be made co-plaintiffs ; but, as has often been observed, the rules of equity do not demand this strict distinction between plaintiffs and defendants, and they are satisfied if all the individuals, besides the one actually instituting the suit, are placed among the defend- ants. It is also often possible, when the class is numerous, that one should sue on behalf of all the others. This general rule is most comprehensive in its practical application, and must be invoked in a very large number of cases which have little exter- nal resemblance ; it was well established both in England and in this country as a doctrine of equity procedure, but has of late years been much modified and relaxed in England by statutes.^ § 259. There are some exceptions, however, to the foregoing rule which requires all persons interested in the result of an accounting to be made parties. When some of the individuals who were originally interested have been already separately accounted with and paid, they need not be made parties to the suit.2 And when the accounts and shares of the different per- sons have been kept entirely separate and distinct from each ciary, and the trustee had died, and all the personal estate of the beneficiary; and his estate, including the trust estate, had the heirs, because they succeeded to his been distributed to his heirs and next of real estate. Richtmyer v. Kichtmyer, 50 kin, and the beneficiary had also died, an Barb. 55. action was held properly brought by the i See 1 Daniell's, p. 217 ; Story Eq. administrator and heirs-at-law of the latter PI. § 90. See Baptist Church r. Presby- against the heirs and next of kin of tlie torian Cliurch, 18 B. Mon. 635; Hutchin- deceased trustee for an accounting and son r. Koberts, 67 N. C. 223. settlement of the trust, a payment of the 2 D'Wolf i\ D'Wolf, 4 R. I. 450; personal property, and a conveyance of Branch v. Booker, 3 Munf. 43 ; Moore v. tiic land ; the administrator was properly Beauchamp, 5 Dana, 70. made a plaintiff, because he represented 312 CIVIL REMEDIES. other, so that neither one is interested in that of the others, although all relate to the same adventure or undertaking, there need be no joinder of all.^ And where persons are each entitled to a certain fixed portion of an ascertained sum in the hands of a trustee, each may sue for his own share without joining his co-beneficiaries.^ The distinction here referred to is important, and should be stated more fully, as follows : If a trustee holds a fund which he is bound to distribute to different beneficiaries in unequal proportions, and the proportionate share of each has not yet been ascertained, all the persons who are interested in the distribution are necessary parties to an action brought to enforce the trust ; but where the proportionate share of each beneficiary has been definitively ascertained by a proceeding binding on the trustee, each is entitled to demand paj'^ment of the share belong- ing to himself, and when the payment is withheld he may main- tain a separate action for its recovery. The liability of the trustee to each is then exactly the same as though the sura ascertained to belong to him was the only sum which the trustee had received and had been directed to pay.^ When a person jointly interested in the account is out of the jurisdiction, the cause has sometimes been allowed to go on without him as a party.4 § 260. I shall now briefly describe some of the most important special applications of tlie foregoing general principles in relation to community and concurrence of interests. As a result of these principles, it is a general rule, with but few well-defined excep- tions, that trustees cannot alone maintain actions relating to the trust property, but the beneficiaries must also be made parties to the suit in some form, either as co-plaintiffs with the trustees or as defendants.^ The following are simple illustrations of this gen- 1 Weymouth v. Boyer, 1 Ves. 410; benefit of the superannuated preachers of Hills V. Nash, 1 Phil. 504, 597 ; Brown v. a certain " conference." It was held tliat De Tastet, Jac. 284 ; Bray v. Froniont, 6 tlie superannuated preachers of tliat body Mad. 6. might unite in an action to enforce the 2 1 Daniell's, p. 219 ; Story Eq. PI. trust for tlieir own benefit and tliat of §§207 a, 212; Perry v. Knott, 5 Bcav. future persons entitled under it. Baptist 29;); Smith ';. Snow, 3 Mad. 10 ; Hares r. Church v. Presbyterian Clmrch, 18 B. Stringer, 15 Beav. 200 ; Lenaghan v. Mon. 635. Smith, 2 Piiil. 301; Hunt v. Peacock, * Story Eq. PI. §§ 78, 80; West v. Hare. 301. Randall, 2 Mason, 106 ; Vose v. Philbrook, 8 Gen. Mut. Ins. Co. v. Benson, 5 3 Story, 335; Lawrence f. Rokes, 53 Me. Duer, 108, 170, per Duer J. ; Walker v. 110; Mudgett v. Gager, 52 Me. 541. Paul, Stanton's (Ky.) code, p. 37. A ^ 1 Daniell's, pp. 220-224 ; Story Eq. fund had been devised to a trustee for the PI., §§ 207, 209; Covington, &c. R. R. v. PLAINTIFFS IN EQUITABLE ACTIONS. 313 eral doctrine. Where trustees in trust to sell lands brought an action against the purchaser at their sale to compel a specific performance of their contract of purchase, it was held that the cestuls que trustent of the purchase-money must be made parties.^ Again, where the trustees of a numerous unincorporated society brought an action to compel the specific performance of an agree- ment entered into by themselves for the benefit of the association, it was held that the members of the society should be joined, or, if they were too numerous, then some of them ought to be made co-plaintiffs, suing as representatives on behalf of the others.^ There are, however, as already stated, certain well-defined excep- tions to this general rule requiring trustees and cestuis que trustent to be joined in suits concerning the trust property, of which the following are the most important : (1) When trustees appointed to sell lands are expressly authorized by the deed of trust to sell in their own names, and it is further expressly provided in such deed that their own receipt of the price shall be a complete dis- charge to the purchaser, it is settled that they may maintain a suit to compel a specific performance against the purchaser with- out joining the cestuis que trustent with themselves as parties.^ (2) In some special instances, where the interest of the benefi- ciaries was simply collateral to the rights of the trustee against the defendant, the trustee has been permitted to sue alone.^ (3) And in suits between the trustees themselves, brought by one to compel the other to account for and restore trust property misappropriated by him, the beneficiaries need not be made par- ties.^ But if the cestuis que trustent have concurred in the breach Bowler's Heirs, 9 Bush, 468 ; Western wise, to divest himself of the trust. R. R. V. Nolan, 48 N. Y. 513 ; Large v. Thatcher v. Candee, 33 How. Pr. 145 Van Doren, 1 McCarter, 208 ; Stilwell v. (N. Y. Ct. of App.). And see cases cited McNecly, 1 Green Ch. 305 ; Van Doren supra under § 250. V. Robinson, 1 C. E. Green, 256 ; Malin i Calverley v. Phelp, 6 Mad. 229. V. Malin, 2 Johns. Ch. 238 ; Fish v. How- 2 Douglas v. Horsfall, 2 S. & S. 184. land, 1 Paige, 20 ; Schenck v. Ellingwood, « See 1 Daniell's, pp. 221, 222, and 3 Edw. Ch. 175 ; Helm v. Hardin, 2 B. cases cited. Mon. 232; Burney v. Spear, 17 Ga. 223; * As, for example, in Saville v. Tan- Woodward V. Wood, 19 Ala. 213 ; Kirk v. cred, 1 Ves. Sen. 101 ; 3 Swanst. 141 ; Clark, Prec. Cha. 275 ; PhilUpson v. Story Eq. PL § 221. Gatty, 6 Hare. 26. Where two or more ^ Story Eq. PI. § 213 ; Franco v. trustees have been appointed, they must Franco, 3 Ves. 77 ; Bridget v. Hanies, all unite in actions brought by them, as 1 Col. 72 ; May i'. Selby, 1 Y. & C. their right is strictly joint ; and this rule 2.35; Horsley r. Fawcett, 11 Beav. 565; applies, although some one of them may Peake v. Ledger, 8 Hare, 313; 4 De have attempted, by assignment or other- G. & S. 137 ; Baynard v. Woolley, 20 314 CIVIL REMEDIES, of trust, they must be joined in the suit brought by one trustee against his co-trustee to repair the fault. ^ § 2G1. (4) The most important exception by far, as well as the most familiar one, is the case of executors and administrators ; they can always sue alone, without joining the legatees, distribu- tees, creditors, or other persons interested in the estate, as parties either plaintiff or defendant. The legal title to the personalty is so completely vested in the executors and administrators, that, both in law and in equity, they are considered as fully representing the rights and interests of all the other persons who have ultimate claims upon such estate as legatees, distributees, or creditors. In all actions, therefore, relating to the estate, they sue alone. This rule is fully established in equity as well as at law.^ All the acting executors or administrators must join ; ^ but if a por- tion only have proved, the others need not be made parties, although they may not have formally renounced.^ It is not in- dispensable, however, that all the executors or administrators should be plaintiffs ; for it is enough in equity if all the parties are before the court, so that one executor or administrator may sue as plaintiff, if he make his co-executor or co-administrator a defendant.^ When a residuary legatee sues for his share of the residue, all the other residuary legatees must be joined either as plaintiffs or defendants.^ And in a suit for distribution, all the Beav. 583 ; Allen v. Knight, 5 Hare, 272, 3 Ch. Rep. 92 ; Cramer v. Morton, 2 277 ; Cunnin. "Hart, 8 Ind. 293; Braxton v. State, 25 Pratt, 17 Iowa, 16; Byers v. Rodahaugh, Ind. 82 ; Tinkum i'. O'Neale, 5 Nev. 93 ; 17 Iowa, 5.3. Smetters r. Rainey, 14 Ohio St. 287, 201 ; * Ibid.; Truesdale v. Rhodes, 26 Wis. Union Bank v. Bell, 14 Ohio St. 200,211. 21-5, 219, 220. Read v. Sang, 21 Wis. Where a demand exists in favor of a firm, 678, laid down a different rule, but the and one partner refuses to join as a plain- Wisconsin court is now in harmony witli tiff, he may be made a defendant in an those of all the other States. See also ordinary legal action brought by his co- Marsh v. Board of Supervisors, 38 Wis. partners to recover the debt. Hill v. 250; Great West., &c. Ins. Co. D.Aetna Marsh, 46 Ind. 218. This ruling, in my Ins. Co., 40 Id. 373. opinion, exhibits the true intent of the codes in the clearest possible manner. 340 CIVIL REMEDIES. settled by an overwhelming and unanimous array of authorities, (1) that if the defect of parties defendant — as thus defined — appears on the face of the complaint or petition, the defendant who desires to raise the question must demur upon that specific ground, an allegation of the defect in the answer as a defence being nugatory ; (2) when the defect does not thus appear on the face of the plaintifi:"s pleading, the defendant must raise the objection in his answer as a defence ; and, (3) if both of these methods are omitted, or if one of them is employed when the other is proper, the defendant waives all objection to the defect or nonjoinder.^ In no case can this objection be raised by a de- murrer on the ground that tlie pleading does not state facts suffi- cient to constitute a cause of action. Although this rule is so firmly settled, yet if, on the trial, or even on appeal, the court sees that other parties are indispensable to a full determination of the questions at issue, it may, on its own motion, even though the defect has not been pointed out by answer or demurrer, order the additional parties to be brought in. This power is expressly given by all the codes, and was a familiar doctrine of the equity procedure. The language of the statutes is certainly broad enough to permit the exercise of this power in legal as well as in equi- table actions ; but, practically, the courts confine its operation to the latter class.^ When the defendant sets up in his answer the defence of nonjoinder, he must state the names and places of residence of the other persons whom he alleges to be necessary defendants. This old rule of the common-law pleading has not been altered by the new legislation.^ 1 Bevier v. Dillingliam, 18 Wis. 529 ; N. Y. 552 ; Potter v. Ellice, 48 N. Y. 321 ; Burliop V. Milwaukee, 18 Wis. 4-31 ; Cord Pavisich v. Bean, 48 Cai. 364 ; Hutenberg V. Ilirsch, 17 Wis. 403; Carney v. La i'. Main, 47 CaL 213 ; Gillam i'. Sigman, Cross, &e. R. R., 15 AVis. 503 ; Lowry v. 29 Cal. 0-37. See, however, Muir v. Gib- Harris, 12 Minn. 255; Mitcliell r. Bank son, 8 Ind. 187; Shaver v. Brainard, 29 of St. Paul, 7 Minn. 252 ; Carr v. Waldron, Barb. 25. Also, Hardy v. Miller, 11 Neb. 44 Mo. 393; Makepeace v. Davis, 27 Ind. 395; Black v. Duncan, 60 Ind. 522; Gil- 352 ; Little v. Johnson, 2G Ind. 170 ; John- bert v. Allen, 57 Ind. 524 ; Hardee v. Hall, son V. Britton, 23 Ind. 105; Shane v. 12 Bush, 327 ; Ross c. Linder, 12 S. C. 592. Lowry, 48 Ind. 205, 200 ; Strong r. Down- ^ ^\g illustrations, see Muir v. Gibson, ing, 34 Ind. 300 ; Turners. First National 8 Ind. 187 ; Shaver v. Brainard, 29 Barb. Bank, 26 Iowa, 502 ; Hosley i'. Black, 28 25. N. Y. 438 ; Kingsland v. Braisted, 2 Lans. ^ Kingsland v. Braisted, 2 Lans. 17. 17; Sagerr Nichols, 1 Daly, 1 ; Bridge (?. Where such an answer was defective in Payson, 5 Sandf. 210; Lewis ?;. Williams, certain particulars, although it conveyed 3 Minn. 151 ; Hier v. Staples, 51 N. Y. the information nceilod, and all the re- 136 ; Fort Stanwix Bank v. Leggett, 51 quisites of the defence were proved on MISJOINDER OF DEFENDANTS. 341 § 288. The foregoing being the methods of raising the ques- tions as to a defect of parties defendant, the inquiry arises, What is the effect of such defect when established in either of these methods? If, upon demurrer, it is held that the plaintiff has failed to unite all the necessary defendants, he will be permitted to amend, as a matter of course, upon the terms as to costs pre- scribed by the practice. When the defence is sel up in the an- swer, the same opportunity is given to the plaintiff to amend, and to reconstruct his action. If the defect is not removed in this manner, it will certainly defeat any legal action, although not necessarily, perhaps, an equitable one. Undoubtedly, the codes, adopting the doctrine of equity tribunals, and extending it to all cases, permit the court in its discretion to retain the cause, under such circumstances, until the other necessary parties are brought in, instead of dismissing it altogether. It is plain that the language of the statutes is general, and embraces all species of actions, no exception being expressed or intimated ; and there can be no pretence that it is not as practicable and as easy to deal with legal actions in this manner as with equitable suits. Practically, however, the authority thus given to the courts is restricted to equitable actions, while legal actions are disposed of in the same manner and by the same rules as before the re- formed system was adopted, — that is, the nonjoinder of a neces- sary defendant, when not cured by amendment, defeats that action, although it does not destroy the cause of action. It may be instructive to compare these results with the provisions of the new English procedure, which declare that under no cir- cumstances shall a cause be defeated or dismissed on account either of a nonjoinder or of a misjoinder of parties.^ § 289. I pass now to the misjoinder or improper uniting of defendants.^ Two cases present themselves which might perhaps the trial, the defect was held cured. North Carolina that a m^s-joinder of par- Wooster v. Chamherlin, 28 Barb. 602. It ties, either plaintiffs or defendants, shall has been held in Indiana that a demur- never defeat any action. If plaintiffs are rer to the complaint, on the ground of a improperly united, the defendant shall nonjoinder of defendants, must also show have judgment against them for costs ; if who ought to have been added as defend- defendants, they may disclaim and have ants, and that, failing to do so, it will be their costs against the plaintiff. This is overruled. Willett v. Porter, 42 Ind. 250, carrying out the true spirit of the reform ; 254. it fully sustains the theoretical position * The " Supreme Court of Judicature taken in the text, and might well be fol- Acf'of 187.3; Schedule, Kule 9. lowed in all the States. Green v. Green, 2 The admirable rule is adopted in 69 N. C. 294, 298. 3-i2 CIVIL REMEDIES, be regarded as falling under this head : namely, (1) Where all of tlie defendants are improperly sued ; and, (2) Where one or more are properly sued, and the others are improperly joined with them. The latter only is a true case of technical " misjoinder," The first is the ordinary case of an action entirely misconceived, and the complaint or petition failing to disclose any ground for relief, so that all the defendants jointly or each of them sepa- rately, according to the circumstances, might either demur for want of sufficient facts, or move to dismiss the action on the trial. Such a case does not fall within the special rules of pro- cedure which relate to parties^ but is to be determined by the general doctrines of the law defining rights and liabilities. The second of the two cases just described does come within the sub- ject-matter of parties defendant, and is to be considered under two aspects, which give rise to two very different classes of ques- tions. These two aspects are the following : It being supposed tliat one or more defendants, whom I will call A., are properly sued, and tliat one or more others, whom I will call B., are im- properl}^ joined in the action, the matters for consideration which can possibly arise from these facts are : (1) How shall the proper defendants. A,, take advantage of the error, and what effect (if any) will it have upon their rights ? and, (2) How shall the im- proper defendants, B., raise the objection, and what effect (if any) will the error have upon their rights ? It is plain that these two sets of defendants occupy very dissimilar positions in the action ; that their rights are very different, and that while the latter are entitled to full relief, the former may not be in the least injured or affected by the misjoinder. ]\Iuch confusion in practice has resulted from the neglect to distinguish between these tuo cases. § 290. Proceeding to the discussion of these two cases sepa- rately, I shall state the rules established in respect to the first of them, and shall illustrate by a striking example the extent to which the common-law doctrines have been changed by the re- formed procedure. When a legal action is brought against two or more defendants upon an alleged joint liability, even though based upon a, joint contract^ and one or more of them are, so far as they are individually concerned, properly sued, but the others are improperly united, the defendants properly sued have no cause of complaint w^hatsoever, in any form, on account of tlie misjoinder ; they cannot demur or answer for defect of parties. MISJOINDER OF DEFENDANTS, 343 because there is no " defect ; " they cannot demur generally for want of sufficient facts, because sufficient facts are averred as against them ; they cannot demur or answer on account of this mujoinder^ because that particular ground of objection is not provided for by the codes. ^ If on the trial the cause of action is proved against them^ but- none against them and the others^ still the plaintiff will not be absolutely nonsuited ; he will recover his judgment against them according to the right of action estab- lished by the proof ; while as against the other defendants he will fail, and will be nonsuited, or his complaint be dismissed. This result of the reform legislation is a very great departure from the former practice. At the common law, if a plaintiff alleged a joint cause of action against two or more defendants, and failed to prove the case as set out in his pleading, he was defeated as to all ; he could not recover against a part and fail as to the others. The interpretation of the codes, as thus stated, is based partly upon the sections already quoted in relation to defendants, and partly upon other sections — to be fully discussed hereafter — in relation to the form and manner of recovery and entry of judgments. B}^ combining these various provisions, and by a construction of them in accordance with their plain spirit and meaning, the courts have deduced the rules here given. To those defendants who are sued in a legal action, even though upon an alleged joint liability, and who are actually liable upon the contract or other cause of action averred, the fact that other persons are also added as co-defendants, however improperly, is no defence, is no answer to the action in any manner or form. This doctrine is fully established b}' the cases collected in the foot- note, and in many others which it is unnecessary to cite.^ The ' An exception must, of course, be recover}^ against them is proper, although made of tliose codes which expressly pro- he may have joined others witli tliem in vide, as a distinct cause of demurrer or the action against whom no liability is defence, the misjoinder of parties, — name- shown." See also, per Emott J., pp. 174, ly, Missouri, California. 175; Brumskill i'. James, 11 N. Y. 294; 2 Mcintosh V. Ensign, 28 N. Y. 160, Marquat v. Marquat, 12 N. Y. 330; Har- 172. Wright J., after stating the com- rington v. Highani, 15 Barb. 524 ; Parker mon-law rule in actions upon a joint con- v. Jackson, IG Barb. 33 ; N. Y. & N. H. tract, t,aid : "But that is not the present B. II. v. Schuyler, 17 N. Y. 592; Coakley rule. A plaintiff is not now to be non- v. Chamberlain, 8 Abb. Pr. n. s. 37 ; Fort suited because he has brought too many Stanwix Bank i\ Leggett, 51 N. Y. 552; parties into court. If he could recover TruesdcU r. Ehodes, 26 Wis. 215, 219, 220; against any of the defendants upon the McGonigal v. Colter, 32 Wis. 614 ; Wil- facts proved, had he sued them alone, the lard v. Reas, 26 Wis. 540, 544 ; Alnutt v. 344 CIVIL REMEDIES. rule being thus established in the extreme case of legal actions alleging a joint liability upon contract, it is of course equally true in all other legal actions based upon a liability which at the com- mon law was several, and in which the misjoinder of some de- fendants would have been no defence as to those properly sued, — as, for example, in actions for torts. A fortiori does the same doctrine apply in all equitable actions. Under the former sys- tem, the improper uniting of co-defendants was never a sufficient ground for preventing a decree against those who were properly made parties if the suit was in equity.^ § 291. The situation of those parties improperly joined as co- defendants is, of course, very different from that just described. The very statement of the case assumes that the action is wrongly brought as against them : that, either as disclosed by the allega- tions of the plaintiff's pleading, or as discovered by the evidence on the trial, no cause of action exists against them, notwithstand- ing the one which exists against their co-defendants. If, therefore, in such a case, it appears on the face of the complaint or petition that one or more persons have been improperly made defendants, sucli persons may present the objection by a demurrer, not on the ground of a " defect " of parties, but on the ground that the plaintiff's pleading does not state facts sufficient to constitute a cause of action against them. This demurrer must be interposed only by those defendants who are wrongly sued, and not hy all the defendants joi7}tlt/, since, if two or more demur jointly, and as to a portion of them there is no cause for the demurrer, it must fail as to all. The safer practice is, therefore, for each defendant who claims that he is improperly joined, to demur separately and individually from the others. This particular ground of objection is not waived by a neglect to demur, as it is expressly provided in all the codes that the defendant may at the trial interpose the Leper, 48 Mo. 319; Brown v. Woods, 48 Ind. 535; Murray v. Ebriglit, 60 Id. 362; Mo. 330 ; llutenherf,^ v. Main, 47 Cal. 213, Erwin v. Seotten, 40 Id. 389 ; Carmien i;. 221 ; Aucker v. Adams, 23 Ohio St. 543, Wliitaker, 30 Id. 509 ; Graham v. Hender- 548-550; Lampkin v. Chisom, 10 Ohio son, 35 Id. 195; Crews v. Lackhind, 67 St. 450. See also cases cited, infra, un- Mo. 619 ; Ryan v. State Bank, 10 Neb. der § 291 of tlie text in reference to the 524 ; Hubbard v. Gurney, 04 N. Y. 457 ; remedy by those who are im/iroperly joined. Blackburn w. Sweet, 38 Wis. 578. But see See also Territory t'. Ilildebrand, 2 Mont. Curry v. Roundtree 51 Cal. 184. 426 ; Dist. Townp., &c. r. Dist. Townp. i See N. Y. & N. H. R. R. v. Schuyler, of Oskaloosa, 44 Iowa, 512; Littell v. 17 N. Y. 592. Sayre, 7 Hun, 485; Stafford i-. Nutt, 51 MISJOINDER OF DEFENDANTS. 345 same objection to the plaintiff's recovery, even though he has failed to allege it on the record. If the absence of a cause of action does not appear on the face of the plaintiff's pleading, the defence may be set up in the separate answer or answers of the par- ties who rely upon it. Finally, whatever be the completeness or defect of the allegations made by the plaintiff and of the issues raised in the answers of the" defendants, if on the trial tlie evi- dence fails to establish a cause of action against some portion of the defendants, and it thus appears that they had been wrongfully proceeded against in the action, the plaintiff will be nonsuited, or his complaint or petition dismissed as to them, and his recovery will be limited to the others against whom a cause of action is made out. The foregoing rules are sustained by the cases with almost absolute unanimity.^ These are the more regular and 1 Young V. N. Y., «§bc. Steamship Co., 10 Abb. Pr. 229 ; Mitchell v. Bank of St. Paul, 7 Minn. 252, 25tt ; Nichols v. Ran- dall, 5 Minn. 304 ; Seager v. Burns, 4 Minn. 141 ; Lewis v. Williams, 3 Minn. 151 ; Makepeace v. Davis, 27 Ind. 352, 355; McGonigal v. Colter, 32 Wis. 614; Webster v. Tibbitts, 19 Wis. 438 ; Trues- dell V. Rhodes, 20 Wis. 215, 219, 220; Willard v. Reas, 26 Wis. 540, 544 ; Ru- tenberg v. Main, 47 Cal. 213, 221. A joint action against several defendants on a joint contract. All the defendants denied making the contract, but no defence of misjoinder was pleaded. On the trial, it was proved that the contract was made by some of the defendants, but not by all. It was held that the plaintiff should re- cover against those defendants who, as it was proved, had entered into the agree- ment, wiiile, as to the others, the action should be dismissed. After stating that, under § 44, if the misjoinder of defend- ants does not appear on the face of the complaint, the objection must be taken by answer, or else it is waived, citing Gillara V. Sigman, 29 Cal. 637, the court added: " This section applies to actions ex con- tractu and ex delicto, and, to the extent necessary to give it effect, it controls the principle that the allegations and proofs must correspond. This only means that if tlie evidence does not connect all the defendants, — and the misjuijider has not been specially pleaded, — the plaintiflF shall not fail against all. Each of the defendants is still entitled to use the joint denial that the contract was made for his own protection ; and in case there is fail- ure of evidence as to any one, that one should have a decision or a verdict in his own favor." The section 44 referred to (present § 433) provides that, wliere the defects do not appear on tlie face of the complaint, the objection must be taken by answer. See, however, per contra, Wood V. Olney, 7 Nev. 109, wliich holds that when a joint demurrer by defendants is good as to some and bad as to the others, it will not be overruled as to all ; it will be sustained as to those who had a good cause of demurrer, and overruled only as to the others. In Missouri, where a misjoinder is made a cause of demurrer, it is held the objection must be set up by those who are thus improperly joined, and not by the others. If the others unite in the demurrer, it will be overruled as to them. Brown v. Woods, 48 Mo. 330; Alnutt V. Leper, 48 Mo. 319. See also, as to the efiect of misjoinder, Nam v. Had- ley, 74 Ind. 155 ; Mendenhall v. Wilson, 54 Iowa, 589 ; Cogswell v. Murphy, 46 id. 44 ; Dist. Townp. of White Oak v. Dist. Townp. &c., 44 id. 512. On the general doctrine as to the proper joinder of de- fendants, see Buie v. Mech. Ass'n, 74 N. C. 117 ; State v. J. P. & M. R. R., 15 Fla. 201 ; Mahoney v. McLean, 26 Minn. 415. 346 CIVIL REMEDIES. formal modes of raising the questions as to misjoinder by those defendants who are thus wrongfully made parties to a suit ; but there undoubtedly may be cases in which the court will proceed in a more summary manner, and will strike off the name of a party on his mere motion. Such cases must of necessity be some- what exceptional, for, as a general rule, the rights and liabilities of the parties to the record will not 'be determined on motion or by any other means except a formal trial of the issues. § 292. If we sum up the results of the preceding discussion, the following conclusion may be regarded as established beyond any doubt. In ascertaining the effects of a misjoinder of parties, the courts, with great equanimity, have accepted and carried out in practice the spirit and true intent of the reform legislation ; namely, that the familiar doctrines of equity should be made controlling in all kinds of actions legal and equitable. They have in this instance entirely abandoned the technical common- law rules, and have assimilated all actions in this respect to a suit in equity. Even in the case where the common-law doctrine of joint liability was the most rigid, they have with perfect ease abandoned it, have treated it as though abrogated by the general expressions of the reform legislation, and have thus demonstrated that the judicial reasoning by which tliat ancient dogma had been supported was in fact nothing but a formula of words with- out any real force and meaning. They have shown that in a legal action upon contract, no matter what may be the allega- tions as to the joint nature of the liability, it is possible to sever the judgment and to permit a recovery against some defendants and for the others, and thus to bring all cases legal and equitable within the operation of the familiar principles of equity. I dwell upon this special instance of liberal construction because it well illustrates the position which I have theoretically maintained as to the general mode of interpreting the codes. The courts of the different States have found no difficulty in adopting and applying the complete doctrine of equity in this case ; there is no greater difficulty in adopting and applying the same to all the provisions of the codes relative to parties, and to the amalgamation of equi- table and legal principles in the one civil action created by the new procedure. If the rules which control equitable tribunals can be and ought to be introduced into the civil action in respect to the single feature of a misjoinder of defendants, for the same MISJOINDER OF DEFENDANTS. 347 reason they can and ought to be introduced in respect to all the parties and in respect to every other external feature of the judi- cial proceeding. If the courts had been consistent in this matter, and had not halted in their work of liberal construction, a com- plete, harmonious, and symmetrical system would long since have been constructed, and the confusion and conflict in principle which now exists would have been avoided. Until this course is freely and systematically adopted, until the courts shall follow out to its legitimate results in all parts and elements of the action the equitable notion which is made everywhere so prominent in the statute, we can never expect to obtain all the simplicity and clearness, and subordination of external form to substantial facts, promised by the new system of procedure. § 293. Even in determining the effects of a nonjoinder of proper defendants, the courts have failed to interpret the provi- sions of the codes with the same freedom which they used in that of misjoinder ; they have hesitated and stopped, when it would have been easy to have gone forward, and to have given the clauses their full force and effect. Undoubtedly the two cases stand upon a somewhat different footing. When a person is himself properl}^ sued, it does not substantially affect his rights or liabilities that another person is also improperly sued with him ; that fact does not essentially make his own liability greater or less. But when a person is sued, he has, in many instances, — certainly in all those legal actions where the liability is joint, and in some equitable suits where the rights and liabilities are com- plex, — a right that all the others who are also liable with him, or against whom the cause of action exists, or who are necessary parties to a complete determination of the controversy, should be united with him as co-defendants, and a neglect to join them is an error against which he should be permitted to object, and from which he should be suffered to obtain a relief. The former equi- table procedure, as well as the common-law practice, recognized this right of the defendant. But it is a very different thing to say that such an error, when established, should in any class of cases absolutely defeat the action. The error is not essentially fatal. This is shown by the practice itself of the courts, which treats the objection as dilatory, and requires it to be presented in a certain technical manner, or else regards it as waived. There is then no reason in the nature of the proceeding why the equity 348 CIXIL REMEDIES. doctrine should not have been applied under these circumstances to all legal actions, so that, when an improper nonjoinder is finally established by the decision of the court, the action should never be defeated thereby, but should be retained by the court in order that the plaintiff might add the necessary defendants, and then the cause proceed to judgment on the merits. It is cer- tainly as practicable and as easy to pursue this course with all legal actions, as it is with those that are equitable ; and the codes expressly permit, if not require it, in language which in terms embraces every species of suit. I shall now proceed to consider the particular cases which have arisen, and the various specific rules as to parties defendant which have been established by judicial decision. This examination wall show how the general principles of interpretation have been applied by the courts, and will exhibit the system as a whole which has been constructed in respect to the selection and joinder of defendants. The discussion will be separated into three gen- eral divisions : namely, legal actions generally ; actions against husband and wife, or either of them, as affected by the marriage relations ; equitable actions generally. FIRST : LEGAL ACTIONS. § 294. I. Actions against Owners or Occupants of Lands. This division does not include actions for trespass or other torts to the land or its possession, which will be considered under a subse- quent subdivision relating .to torts. The actions here intended must be brought against joint owners, owners in common, or occupants. The action to recover possession of land, and to try the title thereto, is generally called by lawyers and judges the action of ejectment. Yet wherever the new procedure is adopted, it far more nearly resembles in all of its essential features the ancient real actions which were displaced in use by " ejectment," — in its essential features, I say, for of course it has none of the technical peculiarities whicli marked those old common-law forms of proceeding. One fact is certainly true, namely, that it does not bear the slightest resemblance to the action of " ejectment " as that was contrived by the old judges and lawyers, and only confusion and misconception result from applying to it that name. Undoubtedly the courts have continued to connect with it some ACTIONS AGAINST OCCUPANTS OF LAND. 349 of the special rules and doctrines which belong to the action of ejectment ; but many of them, I am sure, could never liave been retained if the courts had fully appreciated the completeness of the change wrought by the reformed system of piocedure in abolishing all the forms of legal actions, and had reflected that the technical rules resulting alone from the absurd fictions which characterized ejectment have no legitimate connection with the himple action to recover possession of and try the title to land which has been introduced by the codes in the place of the former modes. As in the " real actions," the real party in interest, and that is the owner of the estate entitling him to possession, — whatever be its nature, — must be the plaintiff, and if the object be to establish a title, the holder or claimant of the adverse title must be made the defendant, while in respect of the claim to possession the occupant must be made a defendant. These are the simple essentials of the action, and they clearly have notliing in them akin to " ejectment." The codes of a few States contain express provisions in relation to parties defendant, and especially in relation to the union of the landlord and tenant as co-defend- ants,i but these are rather inserted from an excess of caution, and do not add anything to the force of the more general clauses. § 295. In an action to recover possession of an entire tract or parcel of land, when the claim of the plaintiff to the whole rests upon and is derived through a single title, he may, and unless their occupation is distinct, should join all the actual occupants or tenants of the tract, even though they may be in possession of separate and distinct portions thereof, and may hold, possess, and claim under separate and distinct titles. In addition to these he may join the landlord or person holding the fee, or any person claiming the ownership and right of possession, and must join such person if he desires to establish in that action his own ulti- mate ownership against that claimant.^ If the entire tract is in the possession of two or more persons who possess the same, not in separate portions, but jointly or in common in undivided shares, 1 Code of New York, § 118 (447, 1503, Koonce, 76 id. 363 ; Lytle v. Burgin, 83 1598); California, §§ 379, 380; South id. .301; Young j;. Greenlee, 82 id. 246; Carolina, § 141 ; North Carolina, § 61. Cagger v. Lansing, 64 N. Y. 417 ; in Wis- 2 State V. Orwig, 34 Iowa, 112, 115. consin, see Gray v. Tyler, 40 Wis. 67'J ; As to proper defendants in ejectment see Pier v. Fond du Lac, 38 id. 470 ; Wilson also Jackson v. Allen, 30 Ark. 119; Rol- v. Henry, 40 id. 694; Platte v. Jaule, 35 lins t;. Rollins, 76 N. C. 264 ; Colgrove v. id. G29 ;' Barclay v. Yeomans, 27 id. 682. 350 CI\1L REMEDIES. they should all be made defendants. If the plaintiff, however, claims separate portions of an entire tract under distinct titles, and each of these portions is possessed or occupied by a different person holding under a separate right or title from the others, he cannot join all these occupants in a single action ; a suit must be brought to recover each portion against the occupant thereof ; the mere fact of propinquity would not produce any community of interest. The foregoing propositions are sustained and illus- trated in the following instances. In an action brought by a widow to recover dower (which had not been assigned) in a city lot of land and block of stores, the occupant, holding under a lease for one year, of a single floor of one store standing on a small portion of the entire tract, was held to be properly joined as a co-defendant.^ A similar action being brought to recover dower in a tract which the husband had conveyed during his marriage to a single grantee by one deed in which his wife did not join, and which land had by subsequent deeds been conveyed, one-half to one separate owner, and one-half to another, it was held that the widow, being entitled to dower in the whole tract, might join both these owners of the fee, who were also the occupants, as defendants in the same action.^ The rule is not confined to proceedings for the recovery of dower. Where it was alleged that one defendant claimed to be owner in fee of the whole premises, and that the three other defendants were his tenants, and that they all " unjustly withheld from the plaintiff the possession of the said premises," and it appeared on the trial that each of these four defendants actually occupied a separate portion, it was held that all these persons were properly united as co-defendants in the action."^ When the land is in the actual possession of a tenant, the landlord may be joined with him as a co-defendant, indepen- 1 Ellicott V. Mosier, 7 N. Y. 201. This owned in fee by a wife, her husband is the was so held under the 2 li. S. of New only proper party to be made defendant, York, p. 303, §§ 2 and 4, and p. 304, §§ 10 since he is entitled to the possession, and 13, which provide that ejectment must Bledsoe )•. Siinms, 53 Mo. 305. be brought against the person actually ^ Galbreath i\ Gray, 20 Ind. 200. It in occupation ; citing Sherwood v. Van- was held tliat the respective liabilities of denburgh, 2 11111,30.3. The defendant the two defendants could be arranged and had contended that, the action being for determined in the judgment, dower, must be against tlie owner of the ^ Fosgate v. Herkimer Man. Co., 12 freehold, as in the common-law action of N. Y. 580. See Fisher v. Ilepburn, 48 dower. In Missouri, when an action is N. Y. 41, 56, per Earl J. brought to recover lands claimed to be ACTIONS AGAINST OCCUPANTS OF LAND. 351 dently of any express provision of the code authorizing such a course, if the landlord has in any manner interfered to resist the plaintiff's claim, or has aided and abetted the tenant in his resist- ance, or has asserted the right of ownership to be in himself as against the plaintiff.^ § 296. Persons, however, whose rights cannot be at all affected by a recovery against the party in actual possession, whose in- terest is entirely distinct from his, and under or from whom he does not derive any title, are neither necessary nor proj^er co- defendants with him in an action brought to recover the posses- sion as against his special title ; as, for example, the remainder- man in fee after a life estate, when the action is merely for the purpose of recovering possession during the continuance of such life interest. Thus, in an action against a husband, tenant by the curtesy in actual possession, brought not to establish an absolute title in fee, but to recover the possession duiing the husband's life, the heirs of tlie deceased wife — who are the reversioners in fee — are neither necessary nor proper parties defendant.2 On the same princij)le, an action by the grantee in a sheriff's deed of lands given on an execution sale, the judgment debtor having died, should be against the latter's heirs alone, and not against them and his widow ; her dower right could not be affected by the recovery, and being as yet unassigned, it did not entitle her to possession as against the plaintiff.^ Lands having 1 Abeel v. Van Gelder, 36 N. Y. 513. based upon the last clause of § 118 of the One S. was the tenant in possession, and New York Code. See also Finnegan i'. Van G. was the landlord. Tlie court, Carraher, 47 N. Y. 493, which was very after reciting the facts that Van G. similar to Abeel v. Van Gelder, supra, in claimed to be the owner, that the entry all the facts. The landlord alone was wasmade, and the possession was retained sued. Court held the tenant was also a by his command, that he asserted title proper and perhaps a necessary party, in himself, and declared that possession but objection to his nonjoinder had been should not be surrendered, proceeds, at waived by not demurring or answering, p. 514 : " This was certainly enough to In Iowa, it is held that when the defend- constitute him a tort-feasor with liis ten- ant is only a tenant, the landlord may be ant, whose action he assumed to control, substituted ; but this is not necessary. He knowingly and purposely took upon If substituted or notified, he is bound by liimself the burden of supporting his ten- the judgment ; otherwise he is not. State ant's possession, and tlius made tiie pos- v. Orwig, 34 Iowa, 112, 115. session his own ; and, if wrongful, he was - Allen o. Ranson, 44 Mo. 2fi3. thus, with his tenant, responsible there- 3 Cavender v. Smith, 8 Iowa, 360. If for," — citing Fosgate v. Herkimer Man. the dower had been assigned so that the Co., supra; Pearce v. Ferris's Executors, widow was in actual possession of part of 10 N. Y. 280 ; Fosgate (-. Herkimer, &;c. the land, her possession, as long as it con- Co., 12 Barb. 352. This decision is not tinued, would, of course, have been under 352 CIVIL REMEDIES. been given to a tenant for life, with remainder in fee to another, the former leased the premises for a term of years, with a cove- nant of quiet enjoyment. The life tenant died before the expira- tion of the term, and the remainder-man thereupon entered and took possession. The lessee brought an action upon the broken covenant against both the executors of the life tenant and the remainder-man. The action in this form was plainly without any foundation ; the remainder-man was improperly joined, as he was in no manner liable on the covenant.^ § 297. II. Actions against Owners or Possessors of Chattels. The actions which fall under this subdivision, and which have any distinctive features, are very few in number. Those brought to recover damages for a tortious act, trespass, or negligence, committed by means of a chattel, and those brought to recover damages for the conversion of a chattel, properly belong to the subdivision which treats of actions for torts in general. The common-law rules as to parties defendant in an action to recover possession of chattels have not been in any manner aifected by the new procedure. Such action must be brought against the party or parties in actual possession of the chattel demanded by the plaintiff. If this actual possession is in one, he must be the sole defendant ; if in two or more jointly, — as, for example, in a partnership, — they must all be made defendants.^ There is a particular case in which the action may be maintained against one in constructive possession, as well as against the party in actual possession. 3 If the original taking of the goods was wrong- ful, and the wrong-doer has subsequently parted with the posses- sion by assignment, the action will still lie against him, or it may be prosecuted against both himself and the assignee whose possession is actual.* Possession by the part}', however, and not a title paramount to that of the plaintiff; 2 Code of New York, § 207 (1604, and allliougli not yet assigned, she could 1695, 1712) ; Ohio, § 175 ; Indiana, § 129 ; establisii her dower against the plaintiff Wisconsin, ch. 128, § 2 ; Minnesota, 2 after he had obtained possession of the Stats, at Large, p. 876. § 56 ; Missouri, entire tract in his action. art. 6, § 1 ; Iowa, § o2'J5 ; California, 1 Coakley i'. Chamberlain, 8 Abb. Pr. § 510 ; Oregon, § 131 ; Nebraska, § 182 ; N. 8. 37. The complaint was dismissed Kansas, § 177; Florida, § 156: 1 Ch. PI. as to the remainder-man, and judgment pp. 122, 123 (Springfield ed. 1840.) was rendered against the executors. The * Nichols v. Michaels, 2o N. Y. 264, action was in every respect remarkable. 270,271. See Haughton i\ Newberry, 69 Where a lessee assigns his term, the lessor N. C. 456. may join the lessee and the assignee in a * Nichols v. Michaels, 23 N. Y. 264, suit for the rent. Tabue v. McAdams, 268, 270, 271, per James and Selden JJ. 8 Bush, 74. ACTIONS AGAINST POSSESSORS OF CHATTELS. 353 the claim of ultimate ownership, is in general the ground for making him a defendant. If the possessor is sued, and a third person also sets up a claim of title, the conflicting demands may be determined by means of an interpleader between the plaintiff and this claimant, ordered by the court at the instance of the defendant, if he in fact admits that he himself has no right in and to the goods.^ § 298. The liability of ship-owners for supplies furnished or repairs made, or upon other contracts, express or implied, in respect to the vessel itself, gives rise to rules which properly fall under this subdivision. I do not now stop to inquire when, how, or by whom the owners may be bound, nor what are the powers of the master or other agent in managing the vessel. It is as- sumed that the power exists and has been properly exercised, and that a liability has arisen for the supplies, repairs, or other aid to the ship ; and the single question is. What is the extent of the liability, upon whom does it rest, and against whom should it be enforced ? When a liability has been created by the master or other agent for supplies furnished to the vessel, the part-owners are responsible in solido, and should all be joined as defendants ; the noyyjoinder of some is a defence by those sued ; ^ and the same is true in the case of repairs and of all other expenses properly incurred in sailing her.^ An action to recover compensation in the nature of salvage for services rendered in saving and securing a disabled steamboat under circumstances entitling the plaintiff to such compensation, was held to be properly brought against all the persons and corporations who owned interests in the boat, even though their interests were distinct and unequal, and even though some of them were separate insurers of her by different policies, to whom an abandonment had been made on account of a total loss. Although their interests and their liabilities were 1 See code of New York, § 122 (452, 3 Bassett v. Crowell, 3 Robt. 72. Lia- 820) ; Ohio, § 42 ; Indiana, § 23 ; Wis- bility in solido means a joint liability, consin, eh. 123, § 22; Minnesota, § 116 ; where all must be proceeded against, and Iowa, § 2572 ; Kentucky, § 42 ; California, the judgment is recovered against all, but § 386; Kansas, § 43; Nebraska, § 48; may be fully enforced against either, and Florida, 5 77 ; South Carolina, § 145; he left to his right of contribution, if any, North Carolina, § 65 ; Nevada, § 17 ; against his fellows. In reference to the Oregon, § 39; Dacota, § 75; Washing- general doctrine stated in the text, consult ton, § 12 ; Wyoming, § 47 ; Montana, Smith's Mercantile Law, pp. 237, 238 § 19. (Am. ed.), and Abbott on Shipping, pp. 2 Sager v. Nichols, 1 Daly, 1. 116-118 (marg. pag.). 23 354 CIVIL EEMEDIES. unequal, they might all be sued in a single action, and a separate judgment could be rendered against each in proportion to his or its liability.-^ § 299. III. Actions upon contract : Joint Liability/. Notwith^ standing the general intent of the codes — which, I think, is very phiin — to substitute the equitable in place of the legal doctrines u[)on the subject of joint liability and of the necessary defendants in actions brought thereon, this intent has not guided the courts in the decision of the particular cases as they have arisen. The overwhelming weight of authority, in passing upon the subor- dinate and practical questions, has determined that no such change has actuall}- been made, and that the common-law rules are left controlling in all legal actions.^ The onlj^ modification — and it is rather formal than real — seems to be in the manner of raising the questions. In an action against joint debtors, or to enforce a joint liability arising out of contract, all of the joint debtors or joint contractors that are living must be united as co- defendants ; and a neglect to make such union of parties, if properly taken advantage of, will be fatal to the action. In other words, the codes, in the absence of such express provisions as are found in those of a few States,^ have not changed the nature of joint liability on contract, nor assimilated it to a several or joint and several one.^ While this doctrine is generally accepted in i Cloon V. City Ins. Co., 1 Handy, 32, Ind. 82 ; Sliafer v. Moriarty, 46 Ind. 9, per Gliolson, J., Superior Court of Cincin- i;l See Lane v. Salter, 51 N. Y. 1. In nati. Bledsoe v. Irvin, the court said that the ~ This general statement does not, of decision there made did not conflict with course, apply in those States whose codes the doctrine of Goodnigiit v. Goar, 30 Ind. expressly change the common-law rules in 418, which was that " the code seems to respect to joint debtors and joint liability have re-enacted the rules wliicii prevailed upon contract, and expressly permit any in equity as to who must join as plaintiflTs number to be sued, and also the personal and may be joined as defendants," be- representatives of deceased joint debtors cause, even in equity, such parties (joint to be united with the survivors, &c. See debtors) must all be made defendants, and sujmt, ^ 118. thus brought before the court ; citing, in 3 Namely, Kentucky, §§ 38, 39 ; Mis- support of this equity rule, 1 Dan. Ch. 80uri, § 7 ; Iowa, § 2550 ; Kansas, § 39 ; Prac. 329. In Sliafer r. Moriarty, 40 Ind. North Carolina, § 03 a. 9, 13, the doctrine was applied to the * Bridge v. Payson, 5 Sandf. 210 ; members of a corporation, who were made Wooster v. Chamberlain, 28 Barb. 602; personally liable by tl)e statute for certain Tinkum v. O'Neale, 5 Nev. 93 ; Keller v. debts of the company. But if the stock- Blasdel, 1 Nev. 491 ; Jenks v. Opp, 43 holders are each made liable in the Ind. 103, 110; Kamm i: Harker, 3 Orcg. amount of the stock helil b}- them respec- 208; Aylesworth r. Brown, 31 Ind. 270; tively, the liahilitj' is not joint, and each Bledsoe v. Irvin, 35 Ind. 293 ; Hardy r. must be sued separately. Perry i'. Tur- Blazer, 29 Ind. 226 ; Braxton i-. State, 25 ner, 55 Mo. 418. If one of two or more DEFENDANTS JOINTLY LIABLE ON CONTRACT. 355 the States which have adopted the reformed system of procedure, in a few of them, as has been said, the Language of the statute is much more specific, and this language, it is held by the courts, substantially abolishes all joint debts and contract liabilities, and reduces them to joint and several liabilities; or, rather, it pro- duces a still greater effect, for, as judicially interpreted, it permits the creditor to sue one, all, or any number he pleases, of the debtors or persons liable on the contract.^ § 300. If one of two or more joint contractors is incapable of entering into a valid agreement, but all are sued jointly in one action, judgment may be recovered against those alone who are capable of contracting and of binding themselves thereby ; as, for example, where a note had been given in a firm name, and the partners, who were husband and wife, were both sued, judg- ment would be given against the husband alone.^ When a con- tract is made by a firm, all the persons who were then members of the partnership continue liable upon it, even though some of them may have retired from the firm before the contract was broken. No arrangement among the partners themselves can change their liability to their common creditor, unless he is a party thereto, and in some manner discharges an outgoing mem- ber from his responsibility. A suit, therefore, where there has joint debtors has been discharged in opinion of Cole J. is a very full discus- bankruptcy, he is still a necessary de- sion of the doctrine and of the changes fendant, since his defence is personal, made by tiie new system, — an exceed- and must be specially pleaded. Jenks v. ingly instructive opinion, but too long Opp, 43 Ind. 108, 110, 111. See also, re- for quotation. Kentucky, Gossom v. Bad- taining the common-law rule, People v. gett, 6 Bush, 97 ; Nichols r. Burton, 5 Sloper, Idaho R. 183 ; Ryan i'. State Bk., Bush, 320. Tliis last case holds that a 10 Neb. 524. judgment against one partner on a firm 1 This is the necessary effect of the debt extinguishes the demand, and is a provision in the code of each State re- bar to any subsequent action thereon ferred to in the text, and named in note against the other partners. This result (1) last preceding; namely, Kansas, Rose is expressly guarded against by the codes V. Williams, 5 Kans. 483 ; Board of Com- of certain other States. One or more or missioners v. Swain, 5 Kans. 376. An all of the joint debtors may be sued, action may be brought on a joint note Bradford i-. Toney, 34 Ark. 763 ; Williams against one or more of the makers ; and v. Rogers, 14 Bush, 770 (a judgment in if all are sued, the plaintiff may dismiss the suit against one or more is tiot a bar as to any one or more, and take judg- to an action against the others) ; Lingen- ment against the others. Whittenhall v. felser i-. Simon, 49 Ind. 82 ( per contra, it Korber, 12 Kans. 618; Alvey v. Wilson, is a bar). 9 Kans. 401, 405; Silver r. Foster, 9 Kans. "' Brumskill v. James, 11 N. Y. 294. 56, 59. Iowa, Ryerson i'. Hendrie, 22 See Groat v. Phillips, N. Y. Sup. Ct. 42, Iowa, 480, an action sustained against one where a wife who had joined in a con- of the partners upon a firm note ; the tract was omitted in the action. 356 CIVIL REMEDIES. been no such discharge, should be brought against all the persons who were partners at the time when the agreement was entered into or the indebtedness was incurred.^ § 301. The rule which requires that all joint debtors must be made defendants, applies to the cases where the contract is im- plied, as well as to those in which it is express. Thus, when two or more administrators, or an administrator and an administratrix, have been appointed over an estate, and upon their retainer ser- vices are rendered by a person for their benefit, — as, for example, by a lawyer retained to conduct legal proceedings affecting the estate, — they are jointly liable to him for his compensation, and should be sued jointly in an action to recover it ; their different and even hostile interests in the final distiibution do not alter the nature of their liability upon the contract, express or implied, made with the person thus employ ed.^ The case of persons liable to repay money which had been paid by mistake, is another familiar example of liability arising from implied con- tract ; all the parties upon whom such duty rests should be joined in the suit to recover the money .^ The members of a joint-stock association, not being a corporation, are jointlj* hable as partners for the debts and contracts of such association. Although the statute permits a creditor to sue the president or other managing officer, the judgment thus obtained can only be enforced out of the common property. If he desires to enforce his claim against the members individually, he must unite all of them as defendants, no matter how numerous, as in an action against an ordinary firm.* The apparent exception, which existed at the common law, to the general rule requiring all joint debtors to be sued, remains in full force under the new system, so that a dormant partner need not necessarily be included as a defendant 1 Briggs V. Briggs & Vose, 15 N. Y. against both, as they were jointly the con- 471. The ilefendants, partners, made an tractins parties, express contract with plaintiff to receive ^ Mygatt v. Wilcox, 1 Lans. 55. from him a quantity of lumber, and to sell ^ Duncan v. Berlin, 5 Robt. 457. In tlie same on commission ; the lumber was Kentucky, by statute, a surety who has delivered to and received by them. Before paid the debt or a part thereof ma}' sue any sale, B , one of the partners, retired the principal debtor and tiie co-surety in from the firm, and the business was there- one action, and recover from the former after conducted by V., wiio sold the lum- the whole amount, and from the latter his her, and converted the proceeds to his contributory slinre. Kobinson r. .lennings, own use. This action, which was for 7 Bush, 6:30 ; 2 R. S. 308, ch. 97, § 7. the proceeds, was held properly brought * Kingsland v. Braisted, 2 Lans. 17. DEFENDANTS JOINTLY LUBLE ON CONTRACT. 357 in an action against the firm, altliougli of course he may be so joined, if the phiintiff elect.^ § 302. I am finally brought to the case where one or more of several joint debtors dies. The common-law rule had been settled from the earliest period that only the survivors could be sued. Equity had modified this legal doctrine, and permitted an action against the personal representatives of the deceased debtor or con- tractor. Has any change in this respect been introduced by the new procedure? It is now established by a great preponderance of authority, in those States whose codes do not contain the spe- cial provisions concerning joint liability already referred to,^ that these rules, as they existed immediately prior to the reform legis- lation, have not been in any manner modified, but remain in ac- tive operation as a part of the present system. The practical result is, upon the death of one or more joint debtors, obligors, or promisors, a legal action can be maintained against the sur- vivors alone, and in such action the personal representatives of the deceased cannot be made defendants for any purpose. An equitable action, however, can be maintained against the adminis- trators or executors of the deceased when, and only when, either the legal remedy against the survivors has been exhausted, or such remedy would be absolutely useless. In such equitable action, therefore, the plaintiff must either aver and prove the recovery of a judgment and the issue and the return of an exe- cution thereon unsatisfied, against the survivors, or else that the survivors are utterly insolvent.^ The rule thus established in 1 North V. Bloss, 30 N. Y. 374 ; Cook- 1 N. Y. Sup. Ct. 645 ; Maples v. Geller, 1 ingham v. Lasher, 2 Keyes, 454 ; Hurlbut Nev. 233, 237, 239 ; Fowler v. Houston, 1 V. Post, 1 Bosw. 28. Even when the dor- Nev. 469, 472 ; Kimball ». Whitney, 15 mant partner is the husband of the osten- Ind. 280, 283; Barlow v. Scott's Adniin- sible one. Scott v. Conway, 58 N. Y. istrator, 12 Iowa, 63 ; Pecker v. Cannon, 619. 11 Iowa, 20 ; Marsh v. Goodrell, 11 Iowa, - See these provisions in the codes of 474; Williams v. Scott's Administrator, Missouri, Kentucky, Iowa, Kansas, and 11 Iowa, 475. The last four cases were North Carolina, supra, § 118. all on joint and several notes, and it was 3 Voorhis v. Child's Executors, 17 held that the rule apphed to tiicm as well N. Y. 354 ; Richter v. Poppenhausen, 42 as to obligations purely joint. It should N. Y. 373 ; Pope v. Cole, 55 N. Y. 124 ; be observed that all these Iowa cases were Lane v. Poty, 4 Barb. 534 ; Voorhis v. decided prior to the " revision " of the Baxter, 1 Abb. Pr. 43; Moorehouse i'. statutes made in 1860. County of Wa- Ballou, IG Barb. 289, an action on a joint peilo v. Bigham, 10 Iowa, 39; Childs v. and several promissory note against one Hyde, 10 Iowa, 294; People v. Jenkins, maker and the executor of the other, lield 17 Cal. 500; Humphreys v. Crane, 5 Cal. improperly brought. Bentz v. Thurber, 173; May v. Hanson, G Cal. 642. But in 358 CIVIL REMEDIES. New York and some other States differs from that prevailing in England in a single particular. Tiie English Court of Chancery permits a suit against the personal representatives of the deceased at once, without attempting, much less exhausting, any remedy at law against the survivor. In other words, the creditor has his option at all times to sue the survivors at law, or the representa- tives of the deceased in equity, whether the survivors are solvent or not ; and this doctrine has been adopted in several American States.^ § 303. These doctrines and modes of procedure in reference to the enforcing a joint demand when one debtor dies, have not, however, been accepted in all the States which have adopted the new system. In Indiana it is declared to be the true meaning and intent of the provisions of the code abolishing the distinc- tions between legal and equitable actions, and introducing the equitable principles concerning parties, and providing for a sever- ance in the judgment, that upon the death of one or more joint, or joint and several, debtors or obligors, an action will lie at once against the survivors and the administrators or executors of the deceased.^ In certain States, special provisions of the codes, or Bank of Stockton v. Howland, 42 Cal. 129, Livermore v. Bushnell, 5 Hun, 285 ; Yates an action against the survivors and the v. Hoffman, 5 id. 113; Masten v. Black- ailministrator of a deceased joint debtor well, 8 id. 313 ; Lanier v. Irwin, 24 Minn, was held to be properly brought; the 116; Scholey v. Halsej', 72 N. Y. 578; judgment, however, should be severed, and Cairnes v. O'Blcness, 40 Wis. 469; Jones against the survivors should be de bonis v. Keep, 23 id. 45. When the joint debtor propriis, and against the administrator dc who dies is a Jiiere surety, his estate is ab- bonis testaioris. It was decided in Parker solutely discliarged from all liability at V. Jackson, 16 Barb. 33, per Gridley J., law or in equity, — that is, liability to the that an action could be maintained against creditor. Wood u. Fiske, 63 N. Y. 245; the survivor and the personal represen- Getty v. Binsse, 49 id. 385, and cases tative of a deceased maker of a joint and cited; Davis v. Van Burcn, 72 id. 587, several note, without alleging or proving 588, 589, and cases cited ; Pickersgill v. the insolvency of the survivor. For the Lahens, 15 W.all. 140; but the estate is proceedings when the cause of action is liable to contribution among the co- for a tort, ami survives upon the death of sureties, Dussol >;. Bruguire, 50 Cal. 450. one of the wrongdoers, see Bond i\ Smith, ' Wilkinson r. Henderson, 1 My. & K. G N. Y. Sup. Ct. 2:J'.< ; and when the prom- 582 ; Braithwaite v. Britain, 1 Keen, 210 ; ise is joint and several, see Speyers v. Brown v. Weatherby, 12 Sim. (5, 11. Tiie Fisk, G N. Y. Sup. Ct. 197, and cases survivors, however, should be made co-de- cited. When an e.xecution against the fendants. survivors of joint debtors has been re- - Braxton v. The State, 25 Ind. 82 ; turned unsatisfied, the action against tlie Eaton v. Burns, 31 Ind. 390. The former personal representatives of the deceased of these cases is an able and instructive debtor will lie. although it may turn out decision ; the opinion presents the equi- that the survivors were not insolvent, table theory of interpreting tlie code in a Pope I'. Cole, 55 N. Y. 124. See also cleurand convincing manner. The action DEFEND.VNTS JOINTLY LIABLE ON CONTRACT. 359 of other statutes, expressly authorize an action to be brought in the first instance against the survivors and the personal repre- sentatives of the deceased joint debtor, or even against some, any, or one of them, at the option of the plaintiff. Such statutory au- thority is found in Ohio,^ lowa,^ Kentucky,^ Missouri.^ was .Tjriiinst three survivors and tlie ad- ministrators of the deceased obhgors on a bond. After statin•. Collier, 8 id. 50 ; Selover v. suit against a stockholder in order to re- Coe, 63 N. Y. 438; Janes r. Williams, 31 cover tiie amount of her claim out of the Ark. 175 ; Williams v. Ewing, 31 id. 229 ; assets received by him. It was lield that WMiitsett i-. Kershaw, 4 Col. 419 ; Wall v. the action could be maintained, and that Fairley, 77 N. C. 105 ; Harris v. Bryant, other stockholders need not be joined as 83 id. 568. co-defendants. Bartlett r. Drew, 57 N. Y. 3 Trustees, &c. v. Kellogg, 16 N. Y. 587, 589. For a peculiar case of misjoin- 83. 408 CIVIL KEMEDIES. administrator] is a trustee of the next of kin of A., and they are interested in the fund after satisfying all charges upon it, and have a right to be heard upon any claim which tends to take it away for the benefit of another or to reduce it." ^ In an action brouoht bv one executor aoainst his co-executor for an account, — the oround of the proceeding being the breach of his trust by the latter, and the misuse of funds belonging to the estate, — the Ico-atees, next of kin, and creditors of the deceased are not neces- sary defendants unless the accounting is to be final ; if it is made the final accounting and settlement of the trust, then all these persons must be brought in as defendants.^ The administrator, in violation of his trust, fraudulently conveyed lands of the estate to a person who was a participant in the fraud. This grantee died intestate. The children — the only heirs and next of kin — of the deceased original owner brought an action against the ad- ministrator and the heirs of the grantee, to set aside the fraudu- lent transfer, to compel a re-conveyance of the land, and for an accounting by the administrator. This action was held proper ; the heirs of the grantee were held to be necessary defendants, and properly united with the administrator.^ And when in a similar case the fraudulent administrator had at different times conveyed portions of the land to different grantees, an action by the heirs of the deceased owner against the administrator and all of these grantees, was sustained. " If there is a common point of litiga- tion, the decision of which affects the whole number of defend- ants, and will settle the rights of all, they may all be joined in the same proceeding." * § 353. An administrator is not a necessary party defendant unless some claim is made against the estate which he would have the right to resist, or unless the judgment would be in some man- ner prejudicial to the estate ; a fortiori, he is not a necessary defendant when the immediate object of the action is to increase the amount of assets available to the payment of the debts of the deceased, even though the ultimate purpose of the proceeding 1 Trustees, &c. v. Kellogg, 10 N. Y. * Bowers r. Kceseehcr, Iowa, 422, 96, per Denio J. 424 ; citing Story's Eq. PI. §§ 284, 534; 2 Wood 1-. Brown, 34 N. Y. 337. Bugbee i'. Sargent, 23 Me. 271 ; Hayner 3 Bassett v. Warner, 23 Wis. 673. v. Julian, Dickens, 677 ; Brinkorlioff v. This case is plainly tlic same in principle Brown, Johns. Cli. R. 152 ; Varick w as tlie sviit hy a judgment creditor against Smith, 5 Paige, 160. a fraudulent debtor and his grantee. DEFENDANTS IN ADMINISTRATION SUITS. 409 may be the benefit of the creditor who prosecutes it. Thus, where the deceased in liis lifetime had received an absolute deed of lands, which he did not put upon record, and had subsequently with a fraudulent intent destroyed this deed, and procured the grantor therein to execute another conveyance of the same land without consideration to a third person who took the same with full knowledge and collusively and put the same upon record, a judgment creditor of the deceased, whose judgment was recovered while the deceased held the deed to himself, brought an action against the second grantee and the heirs and widow of the de- ceased, seeking to set aside the second deed, and to establish the original title of the judgment debtor, and to enforce the lien of his own judgment upon the land ; this action was held to have been properly brought against the defendants named. The ad- ministrator of the deceased was held not to be a necessary party defendant, because the proceeding was really for the benefit of the estate, and he could make no opposition if he were present.^ § 354. In actions by creditors against executors or adminis- trators to recover debts alleged to be due from the deceased, or by the owners of the property to recover assets which had been in the possession of the deceased and apparently belong to his estate in the hands of his personal representatives, the legatees or next of kin are not necessary nor even proper parties defend- ant. The executors or administrators represent the estate. They can bring all suits to recover property in the hands of third persons alleged to belong to the estate, without joining the legatees or distributees as co-plaintiffs, and on the same principle they can defend all actions brought against themselves, involving the ownership of property in their own hands, or the indebtedness of the estate, without the presence of legatees and next of kin as co- defendants. Thus in an action against executors to reach certain moneys and securities in their possession as apparent assets, but which it was claimed had been held by the testator in trust for the plaintiff and actually belonged to him, the legatees were held not to be necessary defendants.^ And in an ordinary suit to ^ Cornell v. Eadway, 22 Wis. 260, per contra, as to the necessity of the per- 265, per Dixon C. J. It was said that sonal representative bein^ made a party the administrator or executor might bring in such actions, 1 Dan. Ch. PI. (4tli Am. the suit ; but this authority did not take ed.), p. 200, and cases cited, away tlie right of tlie creditor. R. S. of 2 King v. Lawrence, 14 Wis. 238. Wisconsin, ch. 100, §§ 16-18. But see 410 CIVIL REMEDIES. recover a debt due from the deceased, brought against the admin- istrator, the widow, and the next of kin, it was held that all these defendants, except the administrator, were improperly joined ; he represents them, and his defence is their defence.^ § 355. A different rule, however, prevails in an action by a distributee against the administrator, legatee against the exec- utor, or beneficiary against the trustee, when the right asserted, if it exists at all, is also held by all the other parties similarly situated with the one who sues, and the decision would in fact determine all their rights. In such a case, in order that the trustee may not be subjected to a multiplicity of suits, when the whole controversy could be decided in one, the equitable doc- trine primarily requires that all the distributees, legatees, or bene- ficiaries should unite as plaintiffs ; but if any refuse to join, they should be made defendants.^ The statutes of several States per- mit an equitable action to be brought by the heirs of the testator to set aside a will of lands for any cause which can invalidate it. In such a suit the devisees under the will are indispensable de- fendants.^ In fact, the executor can hardly be called a necessary party, for he takes no interest in the land. Conversely, in an action to reach the land of a deceased intestate, his heirs are in- dispensable defendants, without whom no decree can be made, and it is difficult to see how the administrator could be a neces- sary party.^ 1 Nelson v. Hart, 8 Ind. 293. That by a creditor to reach the a8sets in the the personal representatives are the only hands of the legatees or distributees, proper defendants in such actions, see Farrell v. Smith, 2 B. & B. 337 ; Clegg v. Story's Eq. Pi. §§ 104, 140 ; Anon., 1 Rowland, L. R. 3 Eq. .368. And, in an Vern. 261 ; Lawson v. Barker, 1 Bro. C. C. action by a creditor against the heirs and 303; Brown v. Dowtliwaite, 1 Mad. 446; devisees of his deceased debtor, to make Jones V. How, 7 Hare, 267 ; Haycock v. his claim out of the land of the deceased Haycock, 2 Ch. Cas. 124 ; Jennings v. in their hands, the joinder of such heirs Paterson, 15 Beav. 28 ; Micklethwait and devisees was held ])roper, since the V. Winstanley, 13 W. K. 210 ; Pritchard judgment could provide for the order of V. Hicks, 1 Paige, 270 ; Wiser v. Blachly, their liabilities. Rockwell v. Geery, 6 1 Johns. Ch. 437. In general, all the per- N. Y. Sup. Ct. 687; Schermerhorn v. sonal representatives must be joined. Barhydt, 9 Paige, 28. Offey V. Jenney, 3 Ch. Rep. 92 ; Hamp v. '^ Dillon v. Bates, 39 Mo. 292. Robinson, 3 De G. J. & S. 97. But if an 3 Eddie v. Parke's Executors, 31 Mo. executor has not proved, he need not be 513. Tlie action was brought against the joined. Strickland v. Strickland, 12 Sim. executors alone. See Morse v. Morse. 42 403; Dyson v. Morris, 1 Hare, 413. Ind. .365 ; /n/'m, § 379, note. When, liowever, the estate has been dis- * Muir >: (Jibson, 8 Ind. 187, 190. See tributed by a decree of the proper court, Silsbee v. Smith, 00 Barb. 372. In »n tlie executors or administrators need not action for an account of personal estate be made defendants in an action brought which came into the hands of a deceased DEFENDANTS IN SUITS INVOLVING TRUSTS. 411 § 356. Y. Actions involving trusts^ express or implied. It is a universal and elementary rule that, in an action to enforce the performance of an express trust, the trustee is an indispensable defendant. This doctrine was applied in a case whe^'e a debtor had transferred personal property to a trustee upon trust to sell the same, and out of the proceeds to pay the demands of the creditor. The directions of the trust not having been complied with, the creditor brought an action against the debtor alone to foreclose the trust deed and for a sale of the goods. The trustee was held to be a necessary defendant.^ Where there were orig- inally two or more trustees, and one or more have died, in an action by the beneficiary to enforce the trust, and especially if a violation thereof is alleged against all the trustees, the survivors and the personal representatives of the deceased not only may be united as co-defendants,^ but they must be so joined, or else no decree enforcing the trust can be made.^ administrator or executor, his personal representatives are necessary defendants. As to tlie necessary parties in an action to construe a will, see McKethanr. Ray, 71 N. C. 165, 170. 1 Tucker v. Silver, 9 Iowa, 261, per Wright C. J. After stating the rule as laid down in the text, the court declares that it has not been changed by the new procedure. See also McKinley v. Irvine, 13 Ala. 681 ; Cassiday v. McDaniel, 8 B. Mon. 519; Morrow v. Lawrence, 7 Wis. 574; Jones v. Jones, 3 Atk. 110. And, in general, all the trustees must be joined. Coppard v. Allen, 2 De G. J. & S. 173. But a trustee who has never acted, and has released all his interest to his co-trustee, need not be made a party. Richardson v. Hulbert, 1 Anst. 65. Wlien a trustee has assigned liis interest in the trust estate, in general botli he and the assignee should be defendants. Story's Eq. Pi. §209; Bailey v. Inglee, 2 Paige, 278. But if he has assigned his entire interest absolutely, the assignee alone should be sued, unless the assignment was a breach of trust. Story's Eq. PI. 3 Sherman v. Parish, 53 N. Y. 483, 490. Action by a sole beneficiarj* against a trustee for an alleged breach of the trust. There had been other trustees who were §§ 211, 213, 214; Munch v. Cockerell, 8 Sim. 219. As examples of this general rule, when a demand is to be enforced against idiots, or lunatics, their commit- tees or guardians must be sued, the luna- tics or idiots themselves being proper but not necessary parties. Beach v. Bradley, 8 Paige, 146. And in suits re- lating to the property of insolvents or bankrupts, their assignees are necessary defendants. Storm v. Davenport, 1 Sandf. Ch. 135; Movan v. Hays, 1 Johns. Ch. 339; Sells ;;. Hubbell, 2 Johns. Ch. 394 ; Botts v. Patton, 10 B. Mon. 452. And the assignees are the only necessary defendants ; neither the insolvents or bankrupts, nor the creditors, need be joined with them. Collett v. Wollaston, 3 Bro. C. C. 228; Lloyd v. Lander, 5 Mad. 282, 288; Sells i-. Hubbell, 2 Johns. Ch. 394 ; Springer v. Vanderpooi, 4 Edw. Ch. 362; Wakeman v. Grover, 4 Paige, 23 ; Dias v. Bouchaud, 10 Paige, 445. '■' Sortore v. Scott, 6 Lans. 271, 276. It was held that the rule forbidding such union of parties in a legal action against joint debtors had no application to such dead, and their personal representatives were not made defendants. Folger J. said: "It is the principle of courts of equity, in cases of breach of trust, when 412 CIVIL REMEDIES. § 357. There is a broad distinction between the case of an action brought in opposition to the trust, to set aside the deed or other instrument by which it was created, and to procure it to be dechired a nullitj', and that of an action brought in further- ance of the trust, to enforce its provisions, to establish it as vahd, or to procure it to be wound up and settled. In the first case, the suit may be maintained without the presence of the bene- ficiaries, since the trustees represent them all and defend for them. In the second, all the beneficiaries must be joined, if not as plaintiffs, then as defendants, so that the whole matter may be adjusted in one proceeding, a-nd a multiphcity of suits avoided. The reason of this distinction is obvious. It is, that any one person interested in opposition to the trust has a right to test the validity thereof, and his voluntary action cannot be controlled 1)}^ the will of others, while the trustees themselves are sufficient to represent and defend all the interests of those who claim under the trust. But when the trust is assented to, and the purpose is simply to carry out its provisions, all the beneficiaries are alike interested in that object and in reaching that same re- sult, and it is just to the trustee that the controversy should be an equitable suit. See also Petrie v. all persons interested in the account Petrie, 7 Lans. 00. This was an action should be made parties (Story's Eq. PI. to compel an accounting brouglit by one § 219). Also, if the legatees who were legatee against a surviving trustee and paid gave agreements to refund, as they executor. There were two other trus- should do, they are necessary parties. tees deceased, and their personal rep- Also, the personal representatives of the resentatives had not been made parties ; deceased trustees (King v. Talbot, 40 divers legatees also were not brought in. N. Y. 76). And if there were no such A demurrer, on the ground of the non- representatives, they should be appointed, joinder, was sustained by the court at and then made parties. All the legatees General Term. Muilin P. J. said (p. 95) : should have been parties." " To an action to compel an accounting, no general rule or order of the court in- add the following very important rule: terferes, and when the facts of the case That, on timely objection to the want of call for a contribution or recovery over, necessary parlies, if the plaintiff does not that all persons who should be before the bring them in, the complaint must be court to enable it to make complete and dismissed, lint not ahsoluteli/ : the dismissal final judgment, are necessary parties to should be without prejudice. Tlie com- the action. Nor has our mode of proced- plaint, however, slionid not even he thus dis- ure abrogated the rule." He cites Hill missed if the cause can be made to stand over on Trustees, 520, 621 ; Perry on Trusts, on terms, in order to enable the plaintiff to §§ 875,876, 877; Lewin on Trusts, 845 ; brinr/ in the necessary parties. Tliis ruling is Munch r. Cockerell, 8 Sim. 219 ; Perry v. in exact conformity with the plain intent Knott, 4 Reav. 179; Shipton v. Knwlins, of the codes, and with the views expressed 4 Hare, 019; Cunningham r. Pell, 5 Paige, by me in the text in a former pnr;i(rr;ipli. C07 ; New York code, § 118. The court See also Haines v. Hollister, 04 N. Y. 1. DEFENDANTS IN SUITS INVOLVING TRUSTS. 413 ended in one proceeding. As illustrations of this principle : In an action brought to set aside a trust deed made by a railroad company to a trustee for the benefit of bondholders, and to re- strain a sale of the road thereunder, the beneficiaries under the trust were declared not to be necessary or even proper parties, and the application of one of them — a bondliolder — to be ad- mitted as a defendant was denied, although he alleged that the trustee intended to make no defence, and was actually colluding with the plaintiff and the company.^ On the same principle, where a testator had devised all his lands to his executors with power to sell and distribute the proceeds among his heirs, an action by a third person claiming to own part of these lands, denying that they belonged to the testator, and seeking to reach them or their proceeds in the hands of the executors, was held to be properly brought against the executors alone without join- ing the heirs of the deceased as defendants. The suit in effect sought to set aside the trust pro tanto between the executors and the heirs."^ In like manner an action b}' one or more cred- itors against the debtor and his assignee in trust for all the creditors, to set aside the assignment on the ground of fraud, or for any other reason, is properly brought without joining all or any of the other creditors, who are the beneficiaries, either as defendants or as plaintiffs.^ ^ Winslow i\ Minn., &c. R. R., 4 Minn. 149, 216. ..." And the principle seems 313, 316. The suit was brought against to be well settled that, in an action by a the trustee and the company. Atwater creditor to reach trust property in tlie J., after stating tlie question whether the hands of administrators or trustees who applicant was a necessary defendant, said : have control of, and whose duty it is to " This action does not diflPer in substance protect the property, the cestuis que trustent from an ordinary creditor's bill to set need not be joined as parties. The de- aside a trust-deed for the benefit of cred- fence of the trustee is their defence, and itors, or of cestuis que trustent sustaining their presence is not necessary to the pro- other relations to the trustees. It is a tection of their interests." As to when general rule in equity that all persons the cestuis que trustent are or are not neces- materially interested either legally or sary defendants, see Verdin v. Slocum, 9 beneficially in the subject-matter of the Hun, 150 ; Dewey v. Moyer, 9 Id. 473 ; suit are to be made parties to it either as Moore v. Hegemar, 6 Id. 290 ; Benjamin plaintiffs or defendants, however numer- v. Loughborough, 31 Ark 210; The Trus- ous they may be, so that there may be a tees v. Gleason, 15 Fla. 384 ; Hill v. Du- complete decree which sliall bind them all. rand, 50 Wis. 354. But to this rule there are numerous ex- '■* Paul v. Fulton, 25 Mo. 156. See also ceptions. And it is held that the expres- Ridenour v. Wherritt, 30 Ind. 485. gion, ' all persons interested ' must be ^ Bank of British North America i'. parties to the suit, does not extend to all Suydam, 6 How. Pr. 379. See also Mitch- persons who may be consequentially in ell v. Bank of St. Paul, 7 Minn. 252, which terested ; " citing Story's Eq. PI. §§ 142, was an action by a stockholder to set 414 CIVIL REMEDIES. § 358. On the other hand, if an action is brought based upon the assignment or other deed as a valid transaction, seeking to enforce the trust, to obtain an accounting, to procure a final settlement, or for any other similar relief which recognizes and adopts the trust, and which, when obtained, would alike bene- ficially affect all the persons similarl}^ situated, all the creditors or other cestuis que trustetit must either unite as plaintiffs, or, if the suit is instituted by one or by some, the others must be joined as defendants. The court will not permit the same question to be litigated in separate suits at the instance of each person who has a demand identical in its nature with that held by all the others.^ An action by distributees against their administrator, or by any beneficiaries against their trustee, to open an account once settled, on the ground of an alleged fraud, and for a new accounting and distribution of the shares claimed to be due, is plainly controlled by the same rule. It is entirely analogous to the suit above mentioned by creditors to procure an accounting from their assignee ; it adopts and seeks to carry out the trust. All the distributees or beneficiaries must therefore be made par- ties, if not as plaintiffs, then as defendants.^ § 359. In actions to reach property impressed with an implied aside proceedings of the officers, and par- Baker, 3 Hare, 68 ; Harrison v. Steward- ticularly an assignment in trust for cred- son, 2 Hare, 530. itors ; also, French v. GifEord, 30 Iowa, 2 Dillon c. Bates, 39 Mo. 292. This 148, 159. rule is general. Whenever an action is 1 Bank of British North America v. brought for an accounting and settlement Suydam, 6 How. Pr. 379; Garner v. of a trust estate, all persons interested in Wriglit, 24 How. Pr. 144; 28 id. 92. the estate must be parties. Devaynes v. Generally, when a demand is payable Robinson, 24 Beav. 86 ; Coppard r. Allen, out of a trust fund, the trustees and the 2 De G. J. & S. 173 ; Hall v. Austin, 2 beneficiaries must be joined as defend- Coll. 570 ; Biggs v. Penn, 4 Hare, 469 ; ants in the action to recover it. Emmert Chancellor v. Morecraft, 11 Beav. 262 ; V. De Long, 12 Ivans. 07, 83. Except in Penny v. Penny, 9 Hare, 39. If several the cases of administrators and executors, trustees have been guilty of a breach of and of assignees, for the benefit of cred- trust, all must be joined in a suit by the itors, the general rule is that in all actions cfstni que trust brought to obtain relief against trustees based upon the existence against such breach. Walker i'. Symonds, of the trust, the beneficiaries also must 3 Swanst. 75 ; Munch v. Cockerell, 8 Sim. be made parties. Story's Eq. PI. §§ 192, 219, 231 ; Perry v. Knott, 4 Beav. 179, 193,207; Helm i-. Hardin, 2 B. Mon. 232 ; 181; Shipton v. Rawlins, 4 Hare, 619. demons y. Elder, 9 Iowa, 272 ; Van Doren And in an action by one trustee against i;. Robinson, 1 C. E. Green, 256. If, how- a co-trustee for a breach of the trust, all ever, the cestuis que trustent are very nu- the beneficiaries who have concurred in merous, the rule is sometimes relaxed, or such breach are necessary defendants, a portion of them only are brought in as Jcs.«e v. Bennett, 6 De G. M. & G. 609 ; representatives for the whole number. Williams r. Allen, 29 Beav. 292 ; Roberts Story's Eq. PI. §§ 118, 150: Holland v. v. Tunstall, 4 Hare, 257, 201. DEFENDANTS IN SUITS INVOLVING TRUSTS, 415 trust, or to enforce a lien thereon, the person in whom the legal title is vested, and who is an implied trustee, is, of course, a necessary defendant. Some examples will illustrate this rule. A husband purchased land with his own funds, but procured the deed to be made to his wife ; he afterwards employed a person to erect a dwelling-house upon the land, who obtained a mechanic's lien on the premises for the price of his labor and material^. An action to enforce the lien was held to be properly brought against the wife and the husband ; the legal title was held by her in trust for her husband, and as this title was to be divested by the judgment which was based upon a demand against the cestui que trust, both were necessary parties. ^ Land was purchased by a husband, but by arrangement was conveyed to his wife, the sale and conveyance being procured, as was alleged, by the fraud- ulent representations of both. The grantor, alleging the fraud and the non-payment of the price, brought an action against the husband and wife to establish his debt and to enforce a lien for the same upon the land. Pending the suit the wife died, and her heirs were substituted as defendants in her place. The Supreme Court of Iowa, conceding that the heirs were necessary parties, held that the wife's administrator was a proper and, under certain aspects of the case, a necessary defendant, and ordered him to be brought in. If the action was simply to recover a pecuniary de- mand from the defendant, he was clearly a necessary party ; but if it was only to establish a specific lien, he was only a proper party .2 A railroad company having placed certain of its bonds in the hands of a trustee upon trust to pay therefrom a debt due to a certain creditor of the company, and the trustee having, in violation of his duty, surrendered up the bonds to the company, and permitted them to be cancelled, whereby the security was utterly lost, it was held, in an action by the creditor against the trustee for a breach of his trust, that the railroad company was not a necessary defendant." The owner of bonds and other securities deposited them with his agent for a specific purpose. 1 Lindley v. Cross, 31 Ind. 106. case. The court could not have held that 2 Parshall v. Moody, 24 Iowa, 314. the railroad company was not a proper 3 Ridenour v. Wherritt, 30 Ind. 485. party if the creditor had chosen to make This decision was, of course, made upon it a defendant. It participated in the the objection of the trustee. He was wrong by accepting and cancellinij the clearly liable ; and the legal doctrines as bonds with knowledge that the trust had to joint liability could not apply in sucii a not been fulfilled. 416 CIVIL REMEDIES. The agent, in violation of his fiduciary capacity, disposed of them to divers persons at different times, and in different amounts. The owner brought an action against the agent and all the trans- ferees for the purpose of setting aside the sales and reaching his property or its proceeds. It was held that this common action was improperly brought ; that there was no community of interest among the defendants ; and that a separate suit should have been instituted against the agent and each assignee.^ § 3G0.' VI. Actions against Corporations and Stockholders. Ac- tions to wind up the affairs of corporations, and those permitted by creditors against stockholders to enforce a personal liability of the latter, depend so entirely upon special statutory provisions, and these are so different in different States, that no general rule can be laid down concerning them which shall be a part of the common procedure. In fact, the subject does not strictly belong to a treatise upon the principles of the codes. I have collected some cases, however, which indicate the tendencies of the courts in the various States.^ § 361. An insurance company became insolvent, and a receiver was appointed to wind up its affairs. While it -was in an insol- vent condition, the directors had declared dividends which had been paid to stockholders. Certain creditors brought separate actions against individual stockholders to recover back the divi- dends so paid and received, which actions were pending. In this condition of affairs the receiver instituted a suit against all the stockholders to compel a repayment of all the illegal dividends, and made the above-mentioned creditors defendants, asking against them an injunction to restrain the further prosecution of their actious. It was held by the New York Court of Appeals that the receiver could maintain such an action ; that the creditors could not ; that all the stockholders were properly sued together; and that the creditors were properly joined so as to restrain their proceedings and avoid a circuity of action, and settle the whole in one controversy.^ A stockholder, suing on behalf of all tlie 1 Lexington, &c. R. R. v. Goodman, 5 61 Id. 524 ; Westcott v. Fargo, 01 Id. 542; Al)b. Pr. 493, per Peabody J. This de- Hackley r. Draper, 60 Id. 88 ; Hun v. cision, as it seems to me, is in direct con- Cary, 82 Id. 65 ; People v. Albany, &c. flict with the well-settled principle which R. R., 77 Id. 232 ; Walkins ?;. Wilcox, 4 has been stated in the text, and which is Hun, 220; Pierce <>. Milwaukee, &c. Co., fully sustained by the authorities. 38 Wis. 233. ^ As examples, see Chase v. Vander- * Osgood v. Laytin, 5 Abb. Pr. N. 8. 1. bilt, 62 N. Y. 307 ; Osgood v. Maguire, DEFENDANTS IN SUITS AGAINST CORPORATIONS. 417 others, instituted an action against a railroad company to compel the declaration of a dividend, alleging that funds were in its hands sufficient and appropriate for that purpose. The action was dismissed because, if sustainable at all, it should have been against the directors, who were the managing trustees, and whose duty it was to declare a dividend, if any such duty existed.^ § 362. In a suit by judgment creditors of a corporation (on behalf of all others who should come in) against the stockhold- ers, who were made liable by statute for the debts of the com- pany in specified contingencies, certain other judgment creditors were united as defendants. Upon a general demurrer interposed by them, they were determined to be neither necessary nor proper defendants. They should have been joined as plaintiffs, if at all ; but this was not necessary, and the complaint contained no alle- gation that they had refused to unite in that manner.^ In Ohio, under statutes making stockholders liable to judgment creditors when the ordinary legal remedies against the corporation have been exhausted, it has been held that all the stockholders must be united as defendants, and proceeded against in a single action.^ § 363. An action b}'- stockholders of a bank against the presi- dent and other officers, the corporation itself, and an assignee, alleging fraud and violation of duty by the officers, misapplica- tion of funds terminating in a fraudulent assignment, and praying that the assignment might be set aside, the officers removed, a receiver appointed, and the bank wound up, was sustained in Minnesota as being within the jurisdiction of an equity court, and was declared to be brought against the proper parties.* In a similar action, based upon the same facts, and asking for a removal of the officers, the appointment of a receiver to take charge of the assets, and for an election under the direction of the court, the corporation was held to be a necessary party de- fendant as well as the officers implicated.^ § 364. The holder of stock in a corporation assigned it to a creditor as collateral security for the debt, and this creditor in 1 Karnes v. Rochester, &c. R. R., 4 » Umsted v. Buskirk, 17 Ohio St. 113. Abb. Pr. N. 8. 107, per T. A. Johnson J. "» Mitchell v. Bank of St. Paul, 7 Minn. 2 Young V. New York and Liverpool 252. Steamship Co., 10 Abb. Pr. 229, per 6 French v. Gifford, 30 Iowa, 148, 159. Hogeboom J. 27 418 CIVIL REMEDIES. turn assigned or pledged the security to a third person. The latter having commenced an action to enforce his right of prop- erty again.st the corporation alone, it was decided, in Indiana, that both of the assignors were necessary defendants under the special provisions of the code of that State, which require the assignors of things in action not negotiable to be made parties in a suit by the assignee.^ But in New York, where the debtor, defendant in an action by an assignee of the demand, was entitled to an accounting with the assignor in respect of the claim sued upon, in order to ascertain in fact whether any such claim existed, and applied for an order bringing him in as a defendant for that purpose, it was held that such assignor w^as neither a necessary nor a proper party, and could not be brought in.^ The courts of New York seem to have established the rule under the code for that State, that an assignor of a thing in action is never a proper, much less a necessary, defendant in an action by the assignee, even when the plaintiff's contention depends upon the legal rela- tions and liabilities existing between the defendant — the debtor — and the assignor. This doctrine is entirely contrary to that which prevails in many of the States, and which is sanctioned by their codes and approved by their courts ; and it seems to be equally opposed to the former doctrine of equity, which permitted, if it did not require, the presence of the assignor in all cases where the assignment did not convey a legal title, and especiall}'- where an accounting or other settlement of matters in dispute between the assignor and the defendant was necessary in order to ascertain the amount of the plaintiff's demand.^ § 365. In an action virtually of accounting by one partner against another to recover the plaintiff's share of the assets or profits, and, a fortiori, when the action is confessedly one for accounting, all the partners must be defendants.* This special rule assumes that there has been no settlement, no balance ascer- ^ Ind. & 111. Cent. R. R. r. McKernan, mortgage, and prays the relief of reforma- 24 Ind. 62. tion. 2 Allen V. Smith, 16 N. Y. 415. See 3 Story's Eq. PI. § 153, and notes: also Andrews v. Gillespie, 47 N. Y. 487, 1 Dan. Ch. PI. (4th Am. ed.), pp. 197- wliich holds that the mortgagee who as- 199, and notes; Miller v. Bear, 3 Paige, signed the mortgage is not a proper de- 467,468; Whitney r. McKinney, 7 Johns, fendant in an action to foreclose, even Ch. 144; Trecothick r. Austin, 4 Mason, though the defence pleaded by the mort- 41-44. gagor is that of mistake in drawing the ^ Duck v. Abbott, 24 Ind. 349 ; Set- tembre v. Putnam, 30 Cal. 490. IN SUITS FOR A SPECIFIC PERFORMANCE. 419 tained and agreed upon, so that a simple action at law could be maintained therefor by one partner against another, but the situ- ation is such that an action for an accounting is the only relief given by the law. In such equitable action all the partners are necessary parties. A partnership, being engaged in the business of buying and selling lands, for purposes of convenience had all the titles taken in the name of one member of the firm. He died, being at the time thus the apparent owner of lands which were actually firm property. An action b}^ the survivor for an account and settlement was properly brought against the heirs, widow, and administrator of the deceased ; these persons were all held to be necessary parties.^ § 366. VII. Actions for a Specific Performance. It is the estab- lished rule of equity procedure that, in the ordinary and direct action to compel the specific performance of a contract for the sale of lands, the parties to the contract themselves, or the per- sons who have become substituted in their place, as the heirs and, under certain circumstances, the executors or administrators, are the only proper parties plaintiff or defendant. A suit for the purpose of obtaining this special relief cannot be combined with a cause of action for relief against other persons claiming an interest in the same land ; in other woi-ds, this action cannot be made to determine the titles of other claimants, nor to foreclose the liens of subsequent incumbrancers.^ This well-settled rule has, however, been departed from by some State courts. Thus, in a case decided by the Supreme Court of Minnesota, a contract to convey land had been given, and the vendee had gone into possession. Subsequently to the execution of the agreement and the change of possession, certain persons had recovered judg- ments against the vendor, which they claimed to be liens upon the land. These judgment creditors were held to be proper de- fendants in the suit for a specific performance brought by the vendee for the purpose of cutting off their rights of redemption, 1 Gray v. Palmer, 9 Cal. 616. were held to be improper defendants. In 2 Tasker v. Small, 3 My. & Cr. 63, 68, another case, a tenant of tlie vendor in pos- per Lord Cottenham, Chan. ; Mole v. session was declared an improper party. Smith, Jacob, 490, 494, per Lord Eldon, All persons interested in the subject- Chan. ; Wood t>. White, 4 My. & Cr. 470; matter of the action as holders of the Robertson v. Great Western R. R. Co., legal or equitable titles to the premises in 10 Sim. 314 ; Fagan v. Barnes, 14 Fla. question were declared to be necessary 53, 57 ; Knott v. Stephens, 3 Oregon, 269. parties, plaintiffor defendant, in McCotter In Tasker V. Small, mortgagees of the land i;. Lawrence, G N. Y. Sup. Ct. 3y2, 395. 420 CIVIL REMEDIES. it being assumed that their liens were subordinate to the vendee's rights.^ And it was held by a recent case in California that, in an action to compel the specific performance of such a contract, — the land being an undivided share of a specific tract, — all persons subject to the vendee's equities, and holding adversely to him, must be made defendants.^ § 3G7. In a somewhat peculiar case recently decided by the Supreme Court of New York, a person holding a subsequent and adverse claim to the plainti£f was declared to be a necessary de- fendant to a complete determination of the issues. The action being brought to procure the specific performance of a land con- tract made between the plaintiff and the defendant, the complaint alleged that the defendant had made a subsequent contract to convey the same land to F., and prayed an injunction restraining defendant from making a conveyance to F. Upon this allegation and prayer for relief, it was held that such subsequent vendee was a necessary party. ^ Where the vendor has died, and the vendee brought his action against the sole heir at law of the deceased, but conceded in his complaint that the entire purchase- money had not been paid, and averred a tender and a readiness to pay, the administrators of the vendor were held to be necessary defendants in New York.^ It would appear from the reasoning 1 Seager v. Burns, 4 Minn. 141, 145, Daily ?-. Litchfield, 10 Mich. 20; Spence per Emmet J. The judge made no sug- v. Hogg, 1 Coll. 225. gestion of a doubt whether these creditors * Potter v. Ellice, 48 N. Y. 321,323. were proper parties. The whole discus- Hunt C. J. said : " It is difficult to say sion turned upon the question whether that this action is well brought, the ad- the general allegation of the plaintiff, that rainistrators of Ellice [the vendor] not they " claimed an interest," &c., was being made parties defendant. The heir enough. Tliey were likened hy the court of Mr. E. holds the legal title in trust to to junior incumbrances in a mortgage convey the same to the vendee upon per- foreclosure. None of the authorities last formance of the conditions of the contract, cited were mentioned. He is a mere instrument, having no real 2 Agard v. Valencia, .'>.') Cal. 202. This interest in the matter in a case where the case is somewhat peculiar, and the facts contract is performed. The administrators are exceedingly complicated. The deci- are the real parties in interest. Both by sion certainly seems to conflict with the the statute and the common law the in- general rule as established by equity terest in the contract passes to them, courts, and as stated in the text. Tliey are the parties to whom the money 3 FuUerton v. McCurdy, 4 Lans. 132. is to be paid, and who have the entire When A. agrees to convey to B., and beneficial interest in the contract. Tiieir afterwards conveys to C, who has notice discharge or receipt is a necessary niuni- of the prior contract, C. is a necessary ment to the vendee. They are the parties defendant in an action hy the original who not only receive, but who are to 8e^ vendee to compel a specific performance, tie or contest, as the case may be, the Stone V. Buckner, 12 Smedes & M. 73 ; amount to be paid by the vendee in ful- IN SUITS FOR A SPECIFIC PERFORMANCE. 421 of this case that its decision is confined to the single case in which the vendor has died before the purchase-money has been entirely paid, and in which the same remains unpaid up to the time of commencing the action. If the purchase price has been paid in full, either to the vendor during his lifetime, or to his administrators after his death, then his heirs would seem to be, in general, the only necessary parties defendant, his personal representatives not then having any interest in the controversy.^ In the face of a statute providing that an action for a specific performance of a land contract may be brought against the exec- utor or administrator of a deceased vendor, and that other par- ties are not necessary, but may at the discretion of the court be brought in, the Supreme Court of Iowa has held that such per- sonal representatives are not necessary but only proper parties ; that in the absence of the statute the heirs of the vendor are the only proper or possible parties ; and that, the language of the statute being permissive, it will not be construed to make the administrators or executors necessary defendants.^ § 368. In an action against the vendor to compel the specific performance of his contract, the plaintiff united with him as co- defendants the holders of two prior mortgages embracing the land agreed to be conveyed, which had been given by the vendor, alleging in his complaint that the vendor had agreed to pay off and remove these mortgages, and that they included other lands filment of his contract." See also they pay tlie purchase price ; but tlie heirs Thompson v. Smith, 63 N. Y. 301 ; Rain are also necessary defendants, since the V. Roper, 15 Fia. 121 . conveyance by the vendor will be made to 1 All the heirs of a deceased vendor are them ; but if the vendee has devised all his necessary defendants in the action. House interest under the contract, the devisees V. De.xter, 9 Mich. 246; Duncan v. Wick- are the necessary co-defendants witii the lifEe, 4 Scam. 452. personal representatives. Story's Eq. Pi. 2 Judd I'. Moseley, 30 Iowa, 423, 427. §§ 160, 177 ; Champion v. Brown, 6 Johns. The action was by the vendee against Ch. 402 ; Townsend v. Champernowne, 9 the heirs only of the deceased vendor. Price, 130. If the vendor sues the heirs The defendants demurred, relying upon alone of the deceased vendee, the latter thestatute, and claiming that the adminis- can insist upon the administrators being trators should have been the defendants, brought in. Story's Eq. PI. § 177 ; and not the heirs. The court made no allu- Cock f. Evans, 9 Yerg. 287. The vcu- sion to tlie question discussed in Potter v. dor and the vendee having both died, the Ellice, — the payment of the purchase heirs and widow of the latter brought a price; nor does the report show wliether suit against the devisees of the vendor to the price had been paid or not. Wlien a whom the land had been devised, and the vendee dies, and the vendor sues for a spe- parties were all held to be proper in cific performance, tlie personal represen- Peters t: Jones, 35 Iowa, 512, 518. See tatives are the primary defendants, since cases cited by Miller J. at page 518. 422 CIVIL REMEDIES. iu addition to that claimed by the plaintiff, which were sufficient to satisfy the demand secured thereby, and praying that the mort- gagees might be compelled to sell such other lands first. The New York Court of Appeals, however, held that these mortgagees could not be joined as co-defendants in the action. ^ When in the contract for the sale and conveyance of land the vendor appointed a certain person as his agent to make and deliver a deed in his name to the vendee, and directed the agent to execute and deliver the same, and neither the vendor nor the agent complied with the terms of the agreement, an action brought against the vendor- and the agent as co-defendants was held to be improper, and the agent was declared not to be a proper party in any aspect of the case, since he had no interest in the controversy adverse to the plaintiff.^ Land had been sold at execution sale, and afterwards redeemed in alleged compliance with the statute which prescribes the manner of redemption. The purchaser, denying the validity of the redemption, brought an action against the sheriff alone to compel an execution and delivery of the deed, and this action was held insufficient ; it should have embraced the person who made the redemption, and who claimed to hold the land by virtue thereof, as a co-defendant with the sheriff. ^ § 369. VIII. Actions to quiet Title. The nature of the action to quiet title is such that it is impossible to lay down any but the most general rule in relation to its parties defendant. The very object of the proceeding assumes that there are other claimants adverse to the plaintiff, setting up titles and interests in the land 1 Chapman v. West, 17 N. Y. 125. It 2 Dahoney v. Hall, 20 Inrl. 264. will be seen that here was an attempt to ^ Crosby v. Davis, 9 Iowa, 98. Where unite two entirely distinct causes of ac- the vendee subcontracts, there is a dis- tion, — one for a specific performance tinction depending upon the nature of the against the vendor, and the otlier for tlie sub-contract. If A. agrees to convey to marshalling of tlie securities against the B.. and the latter in turn agrees with C. mortgagees. These causes of action were tliat the conveyance shall be made by A. completely independent of each other. If directly to him, — C, — then C. must be the plaintiff was entitled to the relief he joined with I?, in the action, primarily as demanded against tiie mortgagees, he a plaintiff, but if not, then as a defendant ; could obtain it as well in a second action but if tlie agreement between B. and C. is after the conveyance to him ; and if the that B. will convey the land to C, then vendor had agrec(l to pay off tlies(> incum- B. is the only necessary party in the ac- brances, their amount could be allowed to tion against A. Alexander v. Cana, 1 the plaintiff in reduction of the purchase De G. & Sm. 415; Ciiadwick v. Maden, price, although the holders of the liens 9 Hare, 188 ; B v. Walford, 4 Russ. were not parties to the action for a specific 372. performance. DEFENDANTS IN SUITS TO QUIET TITLE. 423 or other subject-matter hostile to his. Of course all these adverse claimants are proper parties defendant, and if the decree is to accomplish its full effect of putting all litigation to rest, they are necessary defendants. Originally, and independent of statute, this particular jurisdiction of equity was only invoked when either many persons asserted titles adverse to that of the plaintiff, or when one person repeatedly asserted his single title by a suc- cession of legal actions, all of which had failed, and in either case the object of the suit was to settle the whole controversy in one proceeding. The action has, however, been greatly extended by statute, especially in the Western States, and is there an ordinary means of trying a disputed title between two opposite claimants. The general scope of these statutes is as follows : The plaintiff must be in possession claiming an estate in the lands. The ad- verse claimant or claimants must be out of possession, and must assert a hostile title or interest. In this condition the possessor of the land, without waiting for any proceeding, legal or equitable, to be instituted against him, may take the initiative, and, by commencing an equitable action, may compel his adversaries to come into court, assert their titles, and have the controversy put to rest in a single judgment. It is plain, therefore, that this statutory suit is the converse of the legal action of ejectment. The action to quiet title is not, however, confined to the owner- ship of lands ; its use is multiform ; it may be invoked to deter- mine conflicting rights over personal property, and even rights growing out of contract where a multiplicity of actions depend- ing upon the same questions will thereby be avoided. I shall now give some illustrations of the action and of its different forms. It will be seen that each case must stand mainly upon its own cir- cumstances under the guidance of the general principle which requires all persons whose rights and interests could be affected by the decree to be made parties. § 370. The officers of a railroad company, in violation of their duty and of the charter, and with a fraudulent intent, issued large amounts of spurious stock of the corporation, which had all tlie appearance on the face of being genuine. These issues had been made at different times, and to various persons, and the stock was actually held by three hundred and twenty-six separate owners, who had bought it in the course of business supposing it to be genuine. Most of these holders had commenced suits 424 CIVIL REMEDIES. against the company to compel it to recognize the stock as valid in their hands. Under these circumstances the corporation began an action against all these three hundred and twenty-six persons as defendants, to procure the stock to be declared spurious, to enjoin the suits then pending, and to determine the controversy at one blow. The suit was sustained as a bill of peace and to quiet title, and the defendants were held to have been properly united in the one proceeding ; their stock was tainted (if at all) by a common vice, and tlie same fundamental question disposed of all their claims.^ On the same principle, the receiver of an insolvent insurance company w^as permitted to unite all the judg- ment creditors of the corporation who were separately suing the stockholders on their personal liability, and to enjoin their actions in order that the liability of all the stockholders might be enforced b}' himself in the same action.^ § 871. In an action to quiet title to lands by correcting mis- takes in deeds thereof, all persons having any interest in the land, or having any interests which could be affected by the relief demanded, must be biought before the court as defendants. When the land has passed through several owners by a succession of conveyances, all the series of grantors, or their heirs if they themselves are dead, are necessary defendants.^ In another case involving the same principle, a sale had been made under a power of sale contained in a mortgage of land, and a deed of the land executed by or on behalf of the mortgagee to the purchaser. In the description of the premises contained in this mortgage 1 N. Y. & N. II. n. R. V. Scluiyler, 17 Baker, 3 Hare, G8. See also Supervisors N. Y. 592. The final result was, that v. Deyoe, 77 N. Y. 219. the court pronounced the stock valid as ^ Osgood v. Laytin, 5 Abb. Pr. n. 8. 1 against tlie company, and eacli defendant (Ct. of App.). obtained a separate judgment against the ^ Flanders v. McClanahan, 24 Iowa, plaintiff. S. C. 34 N. Y. oO. Bills of 486. See this case for a very elaborate peace are sometimes permitted to be discussion of the doctrine stated in the brought against a part only of those te.xt ; but see Thomas v. Kennedy, 24 claiming adversely to the plaintiff when Iowa, 397; and see Beckwith v. Darges, their number is very large; but in all 18 Iowa, 303. In an action to reform a such cases the right must be general deed, both the grantor and the grantee among all these claimants. Story's Eq. are necessary parties. Pierce v. Faunce, PI. §§ 120, 130 (t sf'rj.; City of London v. 47 Me. 507. As to necessary or proper Perkins, 4 Bro. P. C. 158; Hardcastle v. defendants in actions to correct mistakes Smitiison, 3 Atk. 245 ; Adair v. New in instruments, see Newman v. Home River Co., 11 Ves. 429; Newton v. Earl Ins. Co., 20 Minn. 422, 424; Durham v. of Egmont, 5 Sim. 130; Harrison v. BischoflT, 47 Ind. 211. Also Bush v. Stewardson, 2 Hare, 530; Holland v. Hicks, GO N. Y. 298; Mills v. Buttrick, 4 Col. 123. DEFENDANTS IN SUITS TO QUIET TITLE. 425 there was an important mistake, which was repeated in the deed to the purchaser who took the conveyance in ignorance thereof. On discovery of this error he brought an action to reform the mortgage and his deed by correcting the mistake, and made the mortgagor the only defendant. The Supreme Court of Missouri held upon these facts the mortgagee was a necessary defendant, and must be brought in before any judgment could be rendered. ^ § 372, The general rule governing actions to quiet and deter- mine title to lands brought by the one in possession against the persons who set up adverse claims was clearly and accurately stated by the New York Court of Appeals in a recent case. The proceeding was instituted under a statute which corresponds in its important features with the description of that class of enact- ments given in a preceding paragraph (§ 369). The party in possession had united all the adverse claimants as defendants in his suit, and this was objected to as a misjoinder. The court stated the doctrine in the following manner : " It is claimed on the part of the respondents that the plaintiff could not unite all the claimants as defendants in the action. I cannot doubt that this claim is entirely unfounded. Here are twenty-four persons claiming title to this real estate. They all denied the plaintiff's right upon the same ground, and claimed title from the same source, and therefore had the same defence to the action. It cannot be that under the Revised Statutes it would have been necessary for the plaintiff to have instituted in such a case twenty- four special proceedings. Under the Revised Statutes these defendants, if the}'^ had all been in possession of this real estate, claiming the same title which they set up as defendants in this action, could all have been united as defendants in an action of ejectment ; and they could, if they had chosen to do so, all have united in an action of ejectment against the plaintiff. Hence there was no error in the joinder of these defendants." ^ ^ Haley i\ Bagley, 37 Mo. 363. The ment of the action he had conveyed away court finally held that the purchaser could all his interest in the premises by a war- not maintain such an action at all ; that ranty deed to one C, and he disclaimed he was not in such privity with the mort- all further interest therein. This fact gagor as to entitle him to the relief. appearing on the trial, C. was held to be a 2 Fisher v. Hepburn, 48 N. Y. 41, 55, necessary defendant, and the action was per Earl J. In a similar action brought held over by the court in order that he hy the plaintiff to quiet his title and to cut might be brought in by the plaintiff ; but, off the adverse claim of the defendant, the the plaintiff neglecting to bring him in, latter answered that before the commence- the action was dismissed. Johnson v. 426 CIVIL KEMEDIES. § 373. IX. Actions for Partition. The action of partition has been made the object of so many special and varying statutory regulations in the different States, that it cannot properly be said to fall within the domain of the general procedure as the same is established by the codes. I shall only attempt, therefore, to point out its general features relating to parties defendant, and such as are common to all or several of the States in which the reformed S3^stem prevails. The primary object of the action is to divide the land according to their respective interests among the co- owners. The proceeding may be instituted by any co-owner, and all the other co-owners are of course necessary defendants, and they are in such case the only necessary, or even proper defend- ants, for the rights of no other classes of persons could be affected by the decree making the division. General creditors of any co- owner, or of any prior owner of the whole tract of land, — as, for example, the deceased ancestor of the present co-owners, — or of any prior owner of part of the land, not having obtained judg- ment, and not therefore holding any lien upon the premises or a part of them, would not be proper defendants for any purpose, any more than the general creditors of a mortgagor in the case of a foreclosure. The holders of liens upon the entire tract to be divided, such as judgment creditors of the former owner, or the holders of mortgages given by a former owner, would not be necessary defendants, nor would they be even proper parties to the action. Their liens would be utterly unaffected by the de- cree and subsequent division in pursuance thereof. As their judgments or mortgages were incumbrances upon the whole land prior to the titles of the present co-owners, the division of the real estate among these co-owners would leave the same liens undisturbed and effectual upon the same premises in their full force and effect. The transaction would be the same in substance Robinson, 20 Minn. 170. Actions to de- the manner described, the nile is well set- termine title sometimes arise when the tied that the holders of all tlie intermediate land has been "settled," — that is, con- estates down Xo and incJudinrj the holder veyed to persons having present partial of the first vested estate of inheritance estates, and toothers having future estates must be joined as defendants. Story's either vested or contingent, by way of re- Eq. PI. §§ 144, 108; Sutton v. Stone, 2 mainder, executory devise, or use, al- Atk. 101 ; Reynoldson v. Perkins, Amb. though such cases are, of course, much 564. This rule has been adopted in New more common in England than in this York, and applied to partition suits. Mead country. In all such actions affecting the i-. Mitcliell, 17 N. Y. 210, 214, 215 ; Clem- inheritance, and in all actions affecting ens v. Clemens, 37 N. Y. b'3. the inheritance where the land is held in DEFENDANTS IN SUITS FOR PARTITION. 427 as the conveyance by a mortgagor of the mortgaged premises to a grantee who takes them subject to the existing lien. Such incumbrancers are therefore, according to the doctrines of equity, not even proper parties defendant, when the action is simply for a division of the soil. § 374. The case of those who hold liens upon the undivided shares of individual co-owners, may appear at first view to be somewhat different from the one last described, but it really falls within the same principle. As long as the co-owner's share re- mains undivided, the incumbrance upon it is equally vague ; that is, it is not a lien upon any specific and determined part of the whole common tract, but upon an undivided and undistinguished fraction of it. As the single co-owner himself cannot say of any particular spot of the territory in question, " This is mine, I am entitled to the exclusive possession of this," so his judgment cred- itor or mortgagee cannot say of any particular lot, "I have a lien upon this^ and can enforce that lien by selling this specific por- tion." The sole effect of the decree and the decision in execu- tion thereof is to allot a certain specified and determined piece of land to the co-owner in place of his former undefined share, and to transfer the lien-holder's incumbrance to this specified and de- termined portion of the soil. The incumbrance itself is neither increased nor diminished in amount ; it is merely changed from its floating to a fixed character. It is plain, therefore, that the incumbrancer thus described has no real legal or equitable in- terest in the partition suit when the same is instituted and car- ried on to its end for the mere purpose of dividing the land among the co-owners. His rights are unaffected ; his lien undisturbed. The only apparent interest which he has, or can possibly have, is not in the action itself, nor even in the judgment ordering a par- tition, but in the execution of that judgment. It may be said that he has an interest to see that the division is properly made, so that the co-owner on whose share he has the lien will receive a fair allotment, and that thus the value of his own security will be preserved. He has such an interest undoubtedly, but it is not a legal one ; nor does it commence until the cause is decided and the judgment rendered. Moreover, the actual division is made by officers of the court, — the sheriff, or commissioners appointed in the case, — and they act under the direction and control of the court itself. As in the case of all other administrative official 428 • ' CIVIL REMEDIES. acts the law presumes that they will be rightly done, it does not require a person to be made a party to the action in order that he may be in a position to protect himself against the wrongful acts of the officers who are appointed to carry a judgment of the court into effect. Persons are made parties in order that they may have an opportunity of presenting their rights and claims to the judge before he makes his decree, to the end that they may be considered and passed upon and established by the judgment itself. When that judgment can in no possible manner affect his rights, he is not even a proper party to the suit. I have thus stated the principles of equity unmodified by statute which govern the action of partition when the same is brought for an actual division of the land. The statutory provisions in relation to the action may have altered these rules in some particulars ; but I have only designed to present the equity doctrine pure and simple with the reasons therefor ; so that local clianges, wherever they have been made, will be the more readily understood and their effect appreciated.^ § 375. There is another aspect, however, of the partition suit which places it in very different relations to the holders of liens and incumbrancers either upon the whole land paramount to the titles of the co-owners, or upon the undivided shares of the co-owners themselves. Its object is sometimes to sell the whole land, and to divide the proceeds, and not to divide the land itself. When this is the nature of the judgment, it is plain that the rights and interests of the lien-holders must be adjusted and 1 Prior to any contrary statute, the a necessary party. Wilkinson v. Parish, rule was well settled that incumbrancers .3 Paige, G53 ; Green v. Putnam, 1 Barb. on the undivided shares, or on the whole 500; Gregory r. Gregory, 69 N. C. 522, tract, are not proper parties. Ilarwood 526. But a widow who is entitled to r. Kirby, 1 Paige, 469, 471 ; Sebring v. dower in the whole tract is not a ncces- Mersereau, Ilopk. 501, 503; s. c. on app. sary defendant unless a sale of the land is 9 Cow. ?A4, ?A5 ; Wotten i'. Copeland, 7 to be made. Tanner v. Niles, 1 Barb. Johns. Ch. 140, 141 ; Agar v. Fairfax, 17 660. It is held in New York that, inde- Ves. 542, 544; Baring v. Nash, 1 Ves. & pendent of statute, subsequent contingent B. 551. All the tenants in common, or remainder-men, or persons holding under owners of undivided shares, must be executory devises, who may lureafter parties either plaintiffs or defendants, come into being, are bound by a decree in Burhans c Burhans, 2 Barb. Ch. 398; partition made by a court of equity, Teal r. Wood worth, 3 Paige, 470. When when the present owners of a vested a tenant in common lias assigned his estate of inheritance in the land have share for the benefit of his creditors, such been made parties. Mead r. Mitchell, 17 creditors are not proper parties. Van N. Y. 210, 214,215; Clemens r. Clemens, Arsdaler. Drake, 2 Barb. 599. A widow 37 N. Y. 59. entitled to dower in an undivided share is DEFENDANTS IN SUITS FOK PARTITION. 429 determined in the one action, and especially so when the land is to be sold free from all incumbrance, so that the lien of all the mortgages and judgments will be transferred from the real estate to the fund which is the proceeds thereof, and they will be paid off and satisfied therefrom. There is then a necessary antagonism between the co-owners and all classes and species of incumbran- cers upon their undivided shares. Their rights are clashing ; they are opposing claimants of the same fund ; the interests of all are to be finally established and satisfied at the one judicial proceeding. It is evident, therefore, upon the most familiar principles of equity jurisprudence in its relation to parties, that in the aspect of the action now described, all the holders of liens and incumbrances upon the undivided shares of individual co- owners, created subsequent to the inception of their titles, are not only proper but necessary defendants in order that a decree should be made determining all these conflicting rights and claims, while the holders of prior liens, if not necessary, are at least proper parties for a complete adjudication. ^ It may some- 1 Most of the States have legislated in reference to partition, and have modified the original equity doctrine of parties, especially in relation to incumbrancers, by either permitting or requiring the holders of liens to be joined as defendants in the action. I add an abstract of the provisions which are generally adopted. N. Y.,2 Edm. St. at Large, p. 326 et seq. § 1. All tenants in common, &c., and persons entitled to dower if not admeasured, must be parties. The same provision substan- tially is found in all the statutes ; § 8. Lien holders need not be made parties in the first instance; § 10 a; but every in- cumbrancer of an undivided share may be made a defendant ; § 42. Before an order for the sale of the land, all incum- brancers of undivided shares, if not al- ready parties, must be brought in by amendment. Provision is made for con- cluding unknown and contingent interests and owners. The same rules are enacted in the following States : California, Code of Civ. Proc. §§ 752-754, 759, 761 ; Wis- consin, 2 R. S. ch. 142, §§ 1, 4, 5, 7, 9, 17, 38 ; Oregon, Civil Code, ch. 5, tit. 5, §§ 419, 421, 433, but incumbrancers by judgment are excepted, and are not to be made parties ; Minnesota, 2 Stat, at Large, 1873, ch. 43. tit. 2, §§ 34-86, 42, lien- holders should be joined as defendants in the first instance ; Nebraska Code of Civ. Proc. §§ 802, 804, 819, 823, 842, 843 ; Kan- sas, Code of Proc. §§ 614-616 ; Iowa, Code, 1873, §§ 3278, 3280, 3281, 3284, 3287, holders of liens on the entire tract may be brought in. In Missouri, 2 Wagner's Stat. ch. 104, §§ 1, 4, 5; Ohio, 1 R. S. ch. 81, §§ 1, 2, 12; Indiana, 2 R. S. ch. 11, §§ 1, 2, 6 ; and Florida, Bush's Digest, ch. 128, § 2, no mention is made of in- cumbrancers. It is held, however, in In- diana, that all persons interested should be made parties, and tiiat lien-holders on undivided shares may be joined. Milli- gan V. Poole, 35 Ind. 64, 68. In Missouri, all the co-owners, including infants by their curator, may unite in the proceeding as plaintiffs, so that it will be entirely ex parte. Larned c. Renshaw, 37 Mo. 458 ; Waugh V. Blumentiial,28Mo.462. Where a deed of trust covered a portion of the land, the trustee and cestui que trust were held to have been properly made defendants in order to bind their interest, although no relief was asked against them. Reinliardt v. Wendeck, 40 Mo. 677. Such a deed of trust is equivalent to a mort- gage, so that these defendants were, in 430 CIVIL KEMEDIES. times be impossible at the commencement of the action to deter- mine whether the judgment will be given for a simple partition of the land itself, or for a sale of the land and a division of the proceeds after satisfying the incumbrances, and therefore the classes of persons described may be joined as defendants from motives of precaution. The results thus reached from an analysis of the action itself with its peculiar relief, and the application thereto of familiar equity doctrines, have, however, been largely modified in many States by statutory regulations. § 376. In New York, when the action for a partition is brought by one tenant in common in fee, his wife is a necessary party, but rather as a defendant than as a plaintiff. Her inchoate right of dower is entitled to protection. ^ If one tenant in common dies, so that his estate descends to his heirs, if other of the co-owners were indebted to him for rents and profits of the land, his admin- istrator should be joined as a party defendant with his heirs, since the sum due for these rents and profits, and which would be ascertained by an accounting and determined by the decree, would go to his personal estate in the hands of the administrator, and not to his heirs.^ § 377. In Indiana, the widow takes an undivided portion of the husband's land in fee, as his statutory heir. In an action of partition, brought by the widow against the other heirs of her deceased husband in that State, his creditors, it is held, cannot be made defendants for any purpose.^ Under the California homestead laws, the wife is a necessary co-defendant with her husband in the partition of lands which they claim or she claims to be a homestead.* The general rule is laid down in that State that " all persons having or claiming any interest in the land are not only proper but necessar}' parties to a suit for partition." ^ § 378. X. Actions for various Miscellaneous Objects. Partner- fact, incumbrancers. As to the parties in ^ Gregory v. High, 29 Ind. 527. The Ohio, see Tabler v. Wiseman, 2 Oliio St. court said : " Any decree of partition be- 207 ; Williams v. Van Tuyl, 2 Ohio St. twccn tlie widow and heirs could not con- .336. In New York, it is said that all in- clmie the rights of the creditors against cumbrancers should be brougiit in as the estate of the deceased ; nor could parties in order that the land may be creditors prove their claims in such a sold free. Bogardus v. Parker, 7 How. proceeding to which the administrator Pr. 305. was not a party." 1 Rosekrans v. White, 7 Lans. 486. ♦ De Uprey v. De Uprey, 27 Cal. 329. ^ Scott V. Guernsey, 60 Barb. 1G3, '^ Ibid. p. 332, per Sanderson J. See 181 ; 8. c. on app. 48 N. Y. 106. Gates v. Salmon, 35 Cal. 576. DEFENDANTS IN SUITS FOR A RESCISSION. 431 ship Matters and Accounting. An action by one partner against another for a dissolution and a winding up of the concern, partly- based on the ground of a fraudulent transfer of firm property by the defendant partner to a third person, may properly include this assignee as a co-defendant, since the sale may be declared void, and he may be ordered to account.^ When two of three partners — or any part of the entire firm — entered into a con- tract with a third person, by which they transferred, or agreed to transfer, to him a certain share of their interest in the concern — a mine — and a like share of the profits made by their interest, an action by such assignee to determine his rights, and to obtain his share in the profits, would be properly brought against the two contracting parties alone ; the other members would not be necessary defendants. But if the action is to wind up the con- cern, to dissolve the firm, and to sever the interests of the re- spective members, all the partners are indispensable parties ; if the action is instituted by one, or by his assignee, all the others must be joined as defendants.^ And, as a general proposition, in an action to compel an accounting growing out of any transac- tions or relations, all persons interested in .obtaining the account, or in the result thereof, are necessary parties, and should be made defendants, if not plaintiffs.^ § 379. Rescission and Cancellation. In actions to obtain this remedy, each case must to a great extent stand npon its own cir- cumstances. There is one general principle which is generally applicable, and which regulates the selection of parties in all causes of this nature, whatever be the particular facts upon which each depends. It is the simple but comprehensive rule that all 1 Webb V. Helion, 8 Robt. 625 ; Wade Coffee, 4 Jones Eq. 321. When a debt is V. Rusher, 4 Bosw. 537. joint, all the joint debtors must be made 2 Settembre v. Putnam, 30 Cal. 490. defendants; as, for example, if the suit is See Blood v. Fairbanks, 48 Cal. 171, 174, to enforce a demand against a firm, all the 176 ; and Skidmore v. Collins, 8 Hun. 60. partners must be joined ; and if the action 8 Petrie v. Petrie, 7 Lans. 90, 95. The is brought against the personal represen- general doctrine is, that all persons inter- tatives of a deceased partner, the survivors ested in resisting the plaintiff's demands must also be co-defendants. Story's Eq. must be made defendants. As an exam- PI. §§ 166-168 ; Pierson v. Robinson, 3 pie. all joint debtors, and all persons liable Svvanst. 139 (n.) ; Scholefield r. Heafield, to contribute towards satisfying the plain- 7 Sim. 667 ; Hills v. McRae, 9 Hare, 297 ; tiff's claim, should be joined. Story's Butts v. Genung, 6 Paige, 254. See also Eq. PI. § 169 ; Madox i;. Jackson, 3 Atk. Littell v. Sayre, 7 Hun, 485 ; Southal v. 406; Bland v. Winter, 1 S. & S. 246; Shields, 81 N. C 28 ; Getty t-. Develin, 70 Jackson i;. Rawlins, 2 Vern. 195 ; Ferrer N. Y. 609 ; Fulkerson v. Davenport, 70 V. Barrett, 4 Jones Eq. 455 ; Hart v. Mo. 541 (equitable set-off). 432 CIVIL REMEDIES. persons whose rights, interests, or relations with or through the subject-matter of the suit, would be affected by the cancellation or rescission, should be brought before the court as defendants, so that they can be heard in their own behalf. This general principle is assumed or expressly announced by all the decided cases, and those which are quoted are intended simply as illustrations.^ § 380. In an action to set aside an award, even for the mis- conduct of the arbitrators, the arbitrators themselves cannot properly be made defendants, as they have no interest in the subject-matter, nor are they legally affected by the relief if granted.2 For the same reason a sheriff is neither a necessary nor a proper defendant in an action to set aside a deed of land given by him upon a sale under an execution against the plain- tiff.3 The owner of land who had been induced to sell by the fraud and collusion of his own agent, and of the purchaser, con- veyed the entire tract to such purchaser, who took the apparent ownership in fee of the whole ; but in fact, by a secret arrange- ment between himself and the vendor's agent, the latter was entitled to one half of the land so sold and conveyed, and actu- ally advanced to that end one half of the purchase price. An action by the grantor to set aside this conveyance was held to be properly brought against the ostensible purchaser of the whole, who took the deed in his own name, and the agent jointly, because the latter was in reality one of the purchasers, and his equitable interest would be affected by the decree of cancel- lation.^ § 381. In an action against a trustee to cancel a mortgage given to him as such, or to set aside a deed to him absolute on the face, 1 In Morse v. Morse, 42 Ind. 365, an band, tenant by tlie curtesy, conveyed the action was brouglit to revoke the probate land by an absolute deed, in an action by and set aside a will on account of tlie the heir against tlie grantee to set aside birth of a posthumous child. Under a tliis deed as a cloud upon his title, it was statute of In. Jagers, 49 §§ 129, 130; Nebraska, §§ 135, 136; In- id. 428; Hays v. Miller, 12 id. 187; Tyler PUOVISIONS IN RELATION TO PLEADING. 481 § 435. Ample provision is made for the amendment of plead- ings, either at the trial itself, or at any other time in the progress of the cause. The following sections arc contained in all the codes, with some unimportant verbal variations in a few of them: " No variance between the allegation in a pleading and the proof shall be deemed material, unless it have actually misled [shall actually mislead] the adverse party to his prejudice in maintain- ing his action or defence upon the merits. Whenever it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court, and in what respect he has been misled ; and thereupon the court may order the pleading to be amended upon such terms fis shall be just."^ "When the vari- ance is not material, as provided in the last section, the court may direct the fact to be found according to the evidence, or may order an immediate amendment without costs." ^ "Where, however, the allegation of the cause of action or defence to which the proof is directed is unproved, not in some particular or partic- ulars, but in its entire scope and meaning, it shall not be deemed a case of variance within the last two sections, but a failure of proof." 3 Any pleading may be amended once by the party filing or serving it, as a matter of course, and without costs, and with- out prejudice to proceedings already had : such amendment must be made within specified times, which differ in the various codes ; but will not be permitted if it appear to be merely for purposes of delay.* In addition to this privilege of voluntary amendment V. Kent, 52 id. 583; Calvin v. Woolen, ^ New York, § 171 (541); Wisconsin, 66 id. 464 (neglect to file is cured by cli. 125, § 37 ; Minnesota, § 107 ; Ohio, verdict); Ohio, &c. R. R. i-. Nicklaus, 71 § 133; Kansas, 135; Nebraska, § 140; id. 271; Surinsrer v. Paddock, 31 Ark. Iowa, §2088; Indiana, § 96; California, 528 ; Hannibal & St. Jo. R. R. f. Kundson, § 471; Florida, § 121; Oregon, §96; 62 Mo. 569. Dacota, § 124 ; North Carolina, § 130 ; 1 New York, § 169 (539) ; Wisconsin, South Carolina, § 194. ch. 125, § 35 ; Ohio, § 131 ; Missouri, art. * New York, § 172 (542, 543, 497) ; 8, § 1 ; Minnesota, § 105 ; Kansas, § 133 ; Wisconsin, ch. 125, § 38 ; Ohio, § 134 ; Nebraska, § 1.38 ; Iowa, § 2686 ; Indiana, Missouri, art. 8, § 7 ; Minnesota, § 108 ; § 94 ; California, § 469 ; Florida, § 119 ; Kansas, § 136 ; Nebraska, § 141; Indiana, Oregon, §94; Dacota, § 122 ; North Caro- §97; Iowa, § 2647; California, § 472; lina, § 128 ; South Carolina, § 192. Florida, § 122 ; Oregon, § 97 ; Dacota, 2 New York, § 170 (540) ; Wisconsin, § 125 ; North Carolina, § 131 ; South ch. 125, § 36 ; Ohio, § 132 ; Missouri, art. Carolina, § 195. These provisions are 8. § 2; Minnesota, § 106 ; Kansas, § 134 ; substantially the same, except in respect Nebraska, § 139; Iowa, § 2687; Indiana, to the time within which the amendment § 95 ; California, § 470 ; Florida, § 120 ; can be made ; they all permit one such Oregon, § 95 ; Dacota, § 123 ; North amendment by the party of his own Carolina, § 129 ; South Carolina, § 193. pleading, as a matter of course. 31 482 CIVIL REMEDIES. accorded to the parties, the court itself may, on motion, amend a pleading, or permit it to be amended, at any stage of the cause, before and in most of the States, after the judgment, on such terms as may be proper. This authority is conferred in very broad terras, with the limitation, however, that the cause of action or defence shall not be substantially changed. ^ Finally, all the codes contain the following most righteous provision, which, as appears by their reported decisions, is treated by the courts of some States as though it were a legislative command binding upon them : " The court shall, in every stage of an action, disre- gard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect." 2 § 436. In the important discussions based upon the foregoing statutory provisions, which will form the substance of the present 1 New York, § 173 (723); Wisconsin, ch. 125, § 41 ; Oliio, § 137 ; Missouri, art. 8, §§3, 6 ; Minnesota, § 109 ; Nebraska, § 144 ; Kansas, § 139 ; Indiana, §99 (with verbal changes) ; Iowa, § 2G89 ; Califor- nia, § 473 ; Florida, § 123 ; Oregon, § 99 ; Dacota, § 126 ; North Carolina, § 132 ; South Carolina, § 196. The following is the clause as found in all the codes sub- stantially, and exactly in most of them. The court may at any time "amend any pleading or proceeding by adding or strik- ing out the name of any party ; or by correcting a mistake in the name of any party, or a mistake in any other respect ; or by inserting allegations material to the case ; or, when the amendment does not substantially change the claim or defence, by conforming the pleading or proceeding to the facts proved." 2 New York, § 176 (723, 721); Wis- consin, ch. 125, §41; Ohio, § 138; Mis- souri, art. 8, § 5 ; Minnesota, § 112 ; Ne- braska, § 145 ; Kansas, § 140 ; Indiana, § 101 ; Iowa, § 2690 ; California, § 475 ; Florida, § 12G ; Oregon, § 104; North Carolina, § 135 ; South Carolina, § 199. The foregoing are all tlie general provi- sions relating to the plaintiff's pleading, or to the theory of pleading as a whole : those relating to the defendant's plead- ing, to the reply, and to tlie joinder of causes of action, are given hereafter. In a few of the codes, especially in those of Iowa, Indiana, and Missouri, there are certain special clauses prescribing what may be proved under the answer of denial, and what must be pleaded as new matter, or referring to some mere points of detail : as these clauses are all em- braced by implication in the more general provisions common to all the codes, and thus make no change in the law of the States where they are found, they are surplusage, and I have not quoted them. One special provision, however, prescrib- ing a form of complaint or petition in cer- tain cases, may properly be cited here. " In an action or defence founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to Slate that there is due thereon to him from the adverse party a specified sum which he claims." New York, § 162 (533,534); Ohio, § 122; Kansas, § 123 ; "in an action, counter-claim, or set-off, founded on an account, note, bill of ex- change, or other instrument, for the un- conditional payment of money only, it shall be sufficient," &c. For an excellent illustration of this provision, see Strunk V. Smith, 36 Wis. 031. JOINDER OF CAUSES OF ACTION. 483 chapter, the natural and scientific order of treatment would un- doubtedly lead me first to develop the general and essential prin- ciples upon which the whole reformed theory of pleading is based, and afterwards to apply these principles in determining the rules that regulate the matter and form of the plaintiff's complaint or petition. Scientific method must, however, be sometimes aban- doned from considerations of convenience and expediency ; and such a course seems to be proper in this instance. In attempting to obtain a correct notion of the essential principles and doctrines of the new system, it will be necessary to fix the meaning of cer- tain terms and phrases used in all the codes ; and it so happens, from the course of judicial decisions involving the question, that these very terms and phrases can be most advantageously ex- amined, and most easily interpreted, in connection with the par- ticular subject of " The Joinder of Causes of Action." The entire discussion will, therefore, be rendered simpler, and useless repetition will be avoided, by adopting the arrangement thus suggested. In pursuing this plan, the subject-matter of the chapter will be separated into the following general divisions: (1) The joinder of different causes of action in one proceeding ; (2) the essential principles which lie at the foundation of the reformed system of pleading ; (3) the general doctrines and practical rules deduced from these principles, which determine and regulate both the external form and the substance of the plaintiff's complaint or petition. SECTION SECOND. JOINDER OF CAUSES OF ACTION. § 437. The discussion of this important subject will be sepa- rated into the following subdivisions: I. The statutory provisions found in the various State codes. II. The forms and modes in which a misjoinder may occur, and the manner in which it must be objected to and corrected. III. The legal import of the terra " cause of action," and the case discussed in which only a single cause of action is stated, although several different remedies, or kinds of relief, are demanded. IV. The legal import of the term " transaction ; " discussion of the case of " causes of action arising 484 CIVIL REMEDIES. out of the same transaction, or transactions connected with the same subject of action." V. Instances in which the proper joinder of causes of action is connected with the proper joinder of defendants ; discussion of the provision that all the causes of action must affect all of the parties. VI, Instances in which all the causes of action are against the single defendant, or against all the defendants alike ; and the only question is, whether the case falls within any one of the several specified classes, except the first which embraces those arising out of the same transac- tion, &c. These subdivisions, I think, entirely exhaust the par- ticular subject-matter to which this section is devoted. I. Tlie Statutory Provisions. § 438. The provision, which is found substantially the same — with very slight modifications, if any — in most of the codes, is as follows: "The plaintiff may unite in the same complaint [or petition] several causes of action, whether they be such as have heretofore been denominated legal or equitable, or both, when they all arise out of, 1. The same transaction, or transactions connected with the same subject of action ; 2. Contract, express or implied ; or, 3. Injuries, with or without force, to person and propert}',. or either ; or, 4. Injuries to character; or, 5. Claims to recover real property, with or without damages for the with- holding thereof, and the rents and profits of the same ; or, 6. Claims to recover personal property, with or without damages for the withholding thereof ; or, 7. Claims against a trustee, by virtue of a contract, or by operation of law. " But the causes of action so united must all belong to one of these classes, and, except in actions for the foreclosure of mort- gages, must affect all the parties to the action, and not require different places of trial, and must be separately stated. " In actions to foreclose mortgages, the court shall have power to adjudge and direct payment by the mortgagor of any residue of the mortgage debt that may remain unsatisfied after a sale of the mortgaged premises, in cases in which the mortgagor shall be personall}' liable for the debt secured by such mortgage ; and if the mortgage debt be secured by the covenant, or obligation, of any person other than the mortgagor, the plaintiff may make such person a party to the action, and the court may adjudge JOINDER OF CAUSES OF ACTION. 485 pa3'ment of the residue of such debt remaining unsatisfied after a sale of the mortgaged premises, against such other person, and may enforce such judgment as in other cases." ^ § 439. The scheme contained in all these codes is marked by- certain common features, which should be noticed ; namely, the express provision for the uniting of legal and equitable causes of action, and the exceedingly general and vague clause permitting the union of causes of action arising out of the same transaction, or transactions connected with the same subject of action. In a few States these peculiar features are wanting ; while the other classes of causes of action which may be joined are substan- tially the same as provided in the arrangement already given. This is the case in Kentucky ,2 in Oregon,^ and in California.* It 1 New York, § 167 (483, 484, 1627) ; Wisconsin, ch. 125, §§ 31, 32 ; § 31 is the same as the first paragraph of tlie text ; § 32 is the same as the second, but omit- ting the words " except in actions for the foreclosure of mortgages ; " ch. 145, §§ 11, 12, are substantially the same as the third paragraph : Ohio, §§ 80, 81, are same as the first and second paragraphs of the text, with same omission as in Wisconsin; § 86, — "When the petition contains more than one cause of action, each shall be separately stated and num- bered ; " Missouri, ch. 110, art. 5, § 2, is the same as the first and second para- graphs of the text, except that class 7 is, " Claims by or against a party in some representative or fiduciary capacity, by virtue of a contract, or by operation of law ; " Nebraska, §§ 87, 88, the same as §§ 31, 32, of Wisconsin, and §§ 847, 849 contain same provision as the third para- graph of the text ; Minnesota, § 103, same as §§ 31, 32, of Wisconsin ; Kansas, § 83, the same as the first and second para- graphs of the text, and § 88 is the same as § 86 of Ohio, above quoted ; Florida, § 117, same as the text; North Carolina, § 126,- South Carolina, § 190. - Kentucky, § HI. " Several causes of action may be united in the same petition when each affects all the parties to the action, may be brought in the same coun- ty, be prosecuted in the same kind of proceedings, and all belong to one of the following classes : 1. Actions arising out of contract, express or implied. 2. Claims for the recovery of specific real property, and the rents, profits, and damages for withholding the same. 3. Claims for the recovery of specific personal property, and damages for withholding the sanie. 4. Claims for the partition of real or per- sonal property, or both. 5. Claims arising from injuries to character. 6. Claims arising from injuries to person or prop- erty. 7. Claims against a trustee by vir- tue of a contract, or by operation of law." 3 Oregon, § 91, is substantially the same as in New York, omitting class 1st, and all reference to the union of legal and equitable causes of action. * California, Code of Civil Procedure, 1872, § 427. ". The plaintiff may unite several causes of action in the satne com- plaint when they all arise out of, 1. Con- tracts, express or implied ; 2. Claims to recover specific real property, with or without damages for withholding thereof, or for waste committed tliereon, and the rents and profits of tlie same ; 3. Claims to recover specific personal property, with or without damages for withholding the same ; 4. Claims against a trustee by vir- tue of a contract, or by operation of law ; 5. Injuries to character; 6. Injuries to person ; 7. Injuries to property. But the causes of action so united shall belong to one only of these classes, and sliall affect all the parties to the action, and not re- quire different places of trial, and shall be separately stated ; but an action for malicious arrest and prosecution, or either of them, may be united with an action for either an injury to character or to the person." ■io6 CIVIL REMEDIES. should be remembered that in Kentucky and in Oregon a slight distinction between legal and equitable proceedings is preserved ; and this fact, doubtless, accounts for the form of the provision in the codes of those States. No such distinction remains in Cali- fornia, and, as has been seen in a former chapter, legal and equita- ble causes of action may be united, according to the established procedure in that State, notwithstanding the omission in the clause expressly regulating such joinder. § 440. In other States, the original type set forth in the New- York code has been widely departed from. Thus, in Indiana, an attempt is made to enumerate and arrange the particular classes of equitable as well as legal causes of action which may be joined.^ In Iowa the departure from the common type and the changes of the common law are much wider, and more radical. The code of that State, as those of Kentucky and of Oregon, retains some slight separation between legal and equitable actions, but permits all possible actions that are legal, or all that are equitable, to be united in one petition. The only requirement in reference to their nature is, that all causes of action so united must be in the same kind of proceedings ; that is, all legal, or all equi- table.2 1 Indiana, § 70. " The plaintiff may unite several causes of action in the same complaint when they are included in either one of the following classes : 1. Money demands on contract. 2. In- juries to property. 3. Injuries to person or character. 4. Claims to recover pos- session of personal property, with or without damages for withliolding thereof, and for injuries to tlie property' withheld. 5. Claims to recover possession of real property, witli or without damages for the witiiholding thereof, and rents and profits of the same ; to make partition tliercof, and to determine and quiet the title to real property. 0. Claims to en- force the specific performance of con- tracts, and to avoid contracts for fraud or mistake. 7. Claims to foreclose mort- gages ; to enforce or discharge specific liens ; to subject to sale real property upon demands against decedents' estates, wiien such property has passed to lieirs, devisees, or their assigns ; to marshal as- sets, and to substitute one person to the right of another ; and all other causes of action arising out of a contract or a duty, and not falling within either of tlie fore- going classes. But causes of action so joined must affect all the parties to the action, and not require different places of trial. § 71. When the plaintiff desires to recover possession of title-papers or other instruments in writing, or to correct any mistakes therein, a separate action may be brought therefor, or the posses- sion of such title-papers or other instru- ments in writing may be recovered, or mistakes corrected in any other action, when such recovery or correction would be essential to a complete remedy. § 72. When the action arises out of contract, the plaintiff may join such other matters in his complaint as may be necessary for a complete remedy and a speedy satisfac- tion of his judgment, although such other matters fall within some otiier one or more of the foregoing classes." 2 Iowa, code of 1873, § 2630. Prior code, § 2844. " Causes of action of what- ever kind, where each may be prosecuted by the same kind of proceedings, provided JOINDER OF CAUSES OF ACTION. 487 § 441. These various statutory provisions will be examined, and the judicial interpretation put upon them will be ascertained, in a subsequent portion of the present section. Their general scope and meaning, however, are xevy plain. Excepting in Iowa, a plaintiff may unite different causes of action in the one complaint or petition, under the following restrictions: They must affect all the parties ; they must all be triable in the same county ; and they must all belong to one of the various specified classes. The result is, that all the causes of action so united must be either upon contract, or for injuries to person or property, and the like, unless they all arise out of the same transaction, or transactions connected with the same subject of action. This latter exception does not, as has been seen, prevail in a few of the States ; but, where it does prevail, the most incongruous and dissimilar causes of action may be joined, if they arise out of the same transaction, or transactions connected with the same subject of tlie action, within the meaning of that phrase. It is evident that very little difficulty can arise in interpreting and applying most of the classes. The real doubts and uncertainties grow out of (1) the confounding the reliefs demanded by the plaintiff with the cause of action upon which such demand is based ; and this confusion is more apt to exist in equity causes, and especially in those where legal relief is prayed for as well as equitable ; (2) the clause per- mitting the joinder of causes of action arising out of the same transaction, &c. " Transaction " has had no technical legal meaning, and is a word of very vague import at best ; but this vagueness is largely increased by the additional clause which per- mits causes of action arising out of transactions connected with the same subject of action to be united. These are the tw» chief, and almost only, sources of doubt in the practical construc- tion of the passage in question. The first one — the liability of confounding the reliefs demanded with the causes of action — may, of course, be avoided by the exercise of care and discrimi- nation : the second is much more embarrassing, and it is hardly possible that all doubt should ever be removed from the legal meaning of the language. that they be by the same parties and prevent confusion therein, may direct all against the same party in the same right, or any portion of the issues so joined and if suit on all as to venue may be therein to be tried separately, and may brought in the same county, may be joined determine the order thereof" in the same petition. But the court, to 488 CIVIL REMEDIES. II. The Forms and Modes in which a Misjoinder may occur^ and the Manner in which it must he objected to and corrected. § 442. All of the codes require that the different causes of action should be separately stated. In other words, each must be set forth in a separate and distinct division of the complaint or petition, in such a manner that each of these divisions might, if taken alone, be the substance of an independent action. In fact, the whole proceeding is the combining of several actions into one. At the common law, these separate divisions of the declara- tion were termed " counts ; " and that word is still used by text- writers and judges, although, with one or two exceptions, it is not authorized by the codes ; and it tends to produce confusion and misapprehension, since the common-law " count " was sub- stantialh' a very different thing from the "cause of action" of the new procedure. In one or two States, the term " paragraph " is used to designate these primary divisions. The difficulty in the use of this term is that it is now very generally used in England, and in most of the States where the reformed system prevails, to designate the short sub-divisions, or allegations, of facts into which each cause of action is separated, according to a mode of plead- ing which has become very common. The term " cause of action " is perhaps as proper as any which can be used for the purpose. That such a separation should be made, and that each distinct cause of action should be stated in a single and independent divi- sion, so that the defendant may answer or demur to it without any confusion with others, is plainly indispensable to an orderly system of pleading, and is expressly required l)y all the codes ; and in some of the States the courts have strictly enforced the requirement, and have thereby done much to prevent the formal presentations of the issues to be tried from falling into that con- fused and bungling condition which exists to so great an extent in certain of the States. § 448. The special provisions respecting the manner of raising an objection to a misjoinder of causes of action, and the effect thereof, are as follows : In all the codes but two, it is prescribed that the defendant may demur to the complaint, or petition, if it shall appear on the face thereof that several causes of action have been improperly united ; that, if the error does not so appear, the JOINDER OF CAUSES OF ACTIOX. 489 objection may be taken by the answer ; and that, if not taken in either of these modes, it is waived.^ The sustaining of a de- murrer upon this ground is not fatal to the action in all the States. Several codes contain the very just provision, that, when such a demurrer is sustained, the court may simply order the action to be divided into as many as may be necessary for the proper hearing and determination of the causes of action set forth in the original pleading.'^ The plaintiff is thus not thrown out of court in respect of any of the causes of action alleged by him ; he is merely required to separate the single cause into the num- ber of independent suits which he should have originally brought. § 444. In one or two States a misjoinder is attended with even less serious consequences than this, the sole object of the statu- tory provision on the subject being to secure a trial of each cause of action before the proper tribunal. In Iowa there can be no misjoinder, properly so called, except by uniting a legal and an equitable cause of action. Still, if two legal causes are so utterly incongruous as to prevent a trial of them together, the court may order them to be tried separately. The clauses of the Iowa code are found in the foot-note.^ The provisions of the Kentucky 1 See these provisions, collected in the any time before the final submission of text or notes, supra, § 433. Tliese rules the case to the jury, or to the court when are identical with tliose which regulate the trial is by the court." " § 2632. The the method of objecting to a defect of court, at any time before the defence, parties; and the decisions already cited shall, on motion of the defendant, strike (§§ 206, 207, 287), of course, apply to the out of the petition any cause of action or present subject-matter. If tlie objection causes of action improperly joined with appears on the face of the pleading, it must others." The " defence " here spoken of be raised by demurrer, and not by an- is undoubtedly the entering upon his de- swer ; and this is substantially the same fence at the trial by the defendant, and as saying that it must always be raised not the putting in his answer. The lan- by demurrer, because the misjoinder will guage of the preceding section plainly always appear on the face of the pleading, points to this construction. " § 2633. See James v. Wilder, 25 Minn. 30-5 ; Mead All objections to the misjoinder of causes V. Brown, 6-5 Mo. 552 ; Finley v. Hayes, of action shall be deemed to be waived, 81 N. C. 368 ; Boon i'. Carter, 19 Kans. unless made as provided for in the last 1-35 ; Keller v. Boatman, 49 Ind. 104 ; section," — that is, by motion ; a mis- Rankin v. Collins, 50 Id. 158 ; Hardy v. joinder is not a ground of demurrer. Miller, 11 Neb. 395. " § 2634. When a motion is sustained on 2 New York, § 172 (542, 543, 497) ; the ground of misjoinder of causes of ac- Ohio, § 90 ; Wisconsin, ch. 125, § 38 (last tion, the court, on motion of the plaintiff, clause) ; Nebraska, § 97 ; Kansas, § 92 ; shall allow him, with or without costs, in Florida, § 122 (last clause) ; North Caro- its discretion, to file several petitions, Una, § 131 ; South Carolina, § 195. each including such of said causes of ac- 3 Iowa, code of 1873, § 2631. "The tion as might have been joined; and an plaintiff may strike from his petition any action shall be docketed for each of said cause of action, or any part thereof, at petitions ; and the same shall be pro- 490 CIVIL KEMEDIES, code, in reference to the remedy for a misjoinder, are similar to those of lowa.i The practice in Indiana differs from that which prevails in the States generally, and also from that established in Iowa. A demurrer for misjoinder is permitted ; but its effect can never be fatal to the action. In fact, the matter seems to be practically left in the discretion of the lower or trial court, and any disposition of the objection to a misjoinder made by it can- not be assigned as error so as to reverse a judgment on review. The sections of the Indiana code are quoted in the note.^ § 445. There is another section found in all the codes, which has an important bearing upon the subject under consideration in some of its aspects, — that which permits the correction of plead- ings at the instance of the adverse party on his motion by strik- ing out irrelevant and redundant matter, and by requiring the pleading to be made more definite and certain by amendment where its allegations are so indefinite and uncertain that the pre- cise nature of the charge or defence is not apparent.^ ceeded with without further service ; and the court sliall determine, by order, the time of pleading therein." Tiiis mode of procedure is simple, and eminently just, and sweeps away a mass of tech- nical defences which still disfigure the pure ideal of the American system in many States. For a construction of these provisions, see Hinkle r. Daven- port, 38 Iowa, 355, 358; Cobb v. 111. Cent. R. R., 38 Iowa, 601, 616; Grant V. McCarty, 38 Iowa, 4G8. 1 Kentucky code, §§ 113, 114 ; Sale v. Critchfield, 8 Bush, 636, 646. The de- fendant must move before answer that plaintiff elect between the causes of ac- tion, and strike out the others ; if no such motion is made, the objection is waived. The same rule prevails as to the mis- joinder of parties, which is never ground of demurrer ; defendant must move to strike out the improper parties, or else waive all objection. Dean v. English, 18 B.Mon. 132; Ycates r. Walker, 1 Duv. 84. 2 Indiana code, § 50. " The defendant may demur to the complaint when it ap- pears upon the face thereof, . . . 5th, that several causes of action have been im- properly joined. § 51. When a demur- rer is sustained on the ground of .several causes of action being improperly united in the same complaint, the court shall order the misjoinder to be noted on the order-book, and cause as many separate actions to be docketed between the par- ties as there are causes of action decided by the court to be improperly joined ; and each shall stand as a separate action ; and the plaintiff shall thereupon file a separate complaint in each of the above cases, to which the defendant shall enter his appearance, and plead and go to trial, or suffer a default, in the same manner as in the original action. § 52. No judg- ment shall ever be reversed for any error conmiitted in sustaining or overruling a demurrer for misjoinder of causes of ac- tion." " § 54. When any of the matters mentioned in § 50 do not appear on the face of the complaint, the objection (ex- cept for misjoinder of causes of action) may be taken by answer." It is plain from the foregoing tliat the practical ef- fect of a successful demurrer is trivial. It compels the separation of the action, and the trial of two or more suits instead of one. No discretion is left to tiie court, as in New York, Iowa, and other States^ the court shall cause the separate actions to be docketed. See Clark v. Lineberger, 44 Ind. 223, 227, that no objection can be raised on appeal. 2 See supra, § 434. JOINDER OF CAUSES OF ACTION. 491 § 446. Three forms or modes of alleged misjoinder are possi- ble, and they must be examined separatel}^ in respect to the man- ner in which the objection thereto should be taken. They are, (1) When different causes of action which may properly be united are alleged in the one complaint or petition not distinctly and separately as required by the statute, but combined and mingled together in a single statement. (2) When different causes of action which cannot properly be united are alleged in the one complaint or petition, and are separately and distinctly stated. (3) When different causes of action which cannot properly be united are alleged in the one complaint or petition not distinctly and separately, but combined and mingled together in a single statement ; These three cases will be examined in order. § 447. (1) Although the sections of the codes, defining what causes of action may be united, all require in positive terms that when so joined each must be separately stated, it is settled by the weight of authority, and seems to be the general rule, that a vio- lation of this particular requirement is not a ground of demurrer. This conclusion is based upon the language of the codes author- izing a demurrer for the reason that causes of action "are im- properly united in the complaint or petition." It is said that this expression only points to the case in which causes of action have been embraced in one pleading which could not properly be joined ; while in the special case under consideration it is assumed that all the causes of action may be united, and the only error consists in the external form or manner of their joinder. The remedy is, therefore, not by a demurrer, but by a motion to make the pleading more definite and certain by separating and dis- tinctly stating the different causes of action. ^ The plaintiff can thus be compelled to amend his complaint or petition, and to 1 Bass V. Comstock, 38 N. Y. 21 ; 36 Han. & St. Jo. R. R., 30 Mo. 202 ; Hoag- How. Pr. 382, and cases cited ; Wood r. land v. Ilan. & St. Jo. H. R., 3'J Mo. 451; Anthony, 9 How. Pr. 78 ; Hendry v. Farmers' Bank v. Bayliss, 41 Mo. 274, Hendry, 32 Ind. 349 ; Mulholland i-. Rapp, 284, per Holmes J. These prior cases, 50 Mo. 42 ; Pickering v. Miss. Valley ISat. however, are e-xpressly overruled by the Tel. Co., 47 Mo. 457,460; Houses. Lowell, more recent decisions of the same court 45 Mo. 381. See Wiles y Suydam, 6 N. Y. cited above. See also Freer c. Denton, Sup. Ct. 292. A different rule formerly 61 N. Y. 492 ; Sentinel Co. r. Thompson, prevailed in Missouri, and it was held that -38 Wis. 489 ; Riemer v. Johnke, 37 Id. the error was not only groimd for a de- 258; Hardy v. Miller, 11 Neb. 395; but murrer, but even for a mutlon in nnrst of see Watson v. San Francisco, &c. R. R., judfjment afier verdict! McCoy y. Yager, 60 Cal. 523. 34 Mo. 134 : Clark's Administrator v. 492 CIVIL REMEDIES. state each cause of action by itself, so that the defendant may deal with it by answer or demurrer as the nature of the case demands. It seems to be the settled rule in California, how- ever, that the defect may properly be taken advantage of by demurrer.^ § 448. (2) When causes of action separately stated are im- properly united in the same complaint or petition, the rule which prevails in all the States, except in the few whose special legis- lation has already been described, is the same as that which ap- plies to the case of a defect of parties. If the error appears on the face of the pleading, the defendant must demur, and cannot raise the objection by answer. The statute adds, that, if the error do not thus appear on the face of the pleading, the defence may be presented by the answer. If the defendant omits to use either of these methods properly, he is deemed to have waived the ob- jection. The practical result is, that a demurrer must always be resorted to, or all objection to such misjoinder will be waived.^ The demurrer may be by any of the defendants ;^ and it must be to the entire complaint or petition, and not to any cause or causes of action supposed to have been improperly joined.* To sustain a demurrer for this reason, however, the complaint must contain two or more good grounds of suit which cannot properly be joined in the same action. When a complaint, therefore, consists of two or more counts, and one sets forth a good cause of action, and another does not, although it attempts to do so, the pleading is not demurrable on the ground of a misjoinder, even though the causes of action could not have been united had they been suffi- ciently and properly alleged.^ 1 Nevada, &c. Canal Co. v. Kidd, 43 2 Blossom r. Barrett, 37 N. Y. 434, 436 ; Cal. 180, 37 Cal. 282 ; Watson v. San Smith v. Orser, 43 Barb. 187, 193 ; Mead Francisco, &c. R. R., 41 Cal. 17, 19 ; Buck- v. Bagnall, 15 AVis. 150 ; Jamison v. ingham v. Waters, 14 Cal. 140 ; White v. Cophcr, 35 Mo. 483, 487 ; Ashhy v. Win- Cox, 46 Cal. 169. In Wright t- . Conner, ston, 20 Mo. 210 ; Hibernia Savings Soc. •34 Iowa, 240, 242, it was said :" If through v. Ordway, 38 Cal. 679; Lawrence v. bad pleading two or more distinct causes Montgomery, 37 Cal. 183. See also Field of action or defences are contained in one v. Hurst, 9 S. C. 277. division of a petition or answer, which is * Asliby v. Winston, 26 Mo. 210. called a count, a demurrer may be di- * Bouglier f. Scobcy, 10 Ind. 161, 154 ; rected at one of tliem if insufficient at and must be on the specific ground of law." In strictness, tiie objecting party tlie misjoinder, — a demurrer for want of ought first to re(iuire, by motion, that the sufficient facts does not raise the objec- petition or answer be properly divided, tion. Cox v. West. Pac. R. R., 47 Cal. 87, or an election made between tlie causes 89, 00. of action or tlie defences; but, omitting ^ Truesdell v. Rhodes, 26 Wis. 215, this, he may demur. 219 ; Bassett v. Warner, 23 Wis. 673, 689, JC^INDER OF CAUSES OF ACTION'. 493 § 440. In a very few States, however, tlie practice is different, and a demurrer is not permitted as the remedy for a misjoinder. It is so in Kentucky. Tiie defendant must move to strike out, or to compel the plaintiff to elect which cause of action he will proceed upon, and to dismiss the others ; and a failure to make such motion is a complete waiver of the objection. The plaintiff may also at any time before trial withdraw any cause of action.^ The sections of the Iowa code quoted in § 444 show that a simi- lar practice exists in that State. § 450. (3.) The third case presents some difiSculties. When the complaint or petition contains causes of action which cannot properly be united, and they are mingled and combined in the same allegations, — in other words, the pleading inform sets forth but one cause of action, while in reality it embraces two or more which cannot be joined in any form, — is the defendant's remedy by demurrer, or by motion in the first instance that the pleading be made more definite and certain by separating the causes of action, and by demurrer when such separation has been accom- plished ? In Missouri it is definitely settled that the remedy is by demurrer.^ That this is a proper practice is implied with more or less distinctness by decisions in several other States.^ § 451. There are grave difficulties attendant upon the adoption of such a rule, although it seems to be generally supported by the decided cases. When, upon sustaining a demurrer interposed upon the ground of a misjoinder of causes of action, the action itself is not defeated, but the causes of action improperly united 690 ; Willard v. Reas, 26 Wis. 540, 544 ; ministrator v. Wells, 33 Mo. 106, 109. Lee V. Simpson, 29 Wis. 333 ; Cox v. And see Pickering v. Miss. Valley Co., 47 West. Pac. R. R., 47 Cal. 87, 89, 90. Mo. 457 ; House v. Lowell, 45 Mo. 381. 1 Forkner v. Hart, Stanton's code, p. ^ Gary v. Wheeler, 14 Wis. 281 ; Bur- 60 ; Wilson v. Thompson, ib. p. 60 ; Hart rows v. Holderman, 31 Ind. 412 ; Lane v. V. Cundiff, ib. p. 61; Hord v. Chandler, State, 27 Ind. 108, 112: Fritz v. Fritz, 13 B. Mon. 403 ; McKee v. Pope, 18 B. 23 Ind. 388, 390 ; Hibernia Savings Soc. Mon. 548, 555 ; Bonney v. Reardin, 6 i-. Ordway, 38 Cal. 679 ; Anderson v. Hill, Bush, 34; Dragoo v. Levi, 2 Duv. 620; 53 Barb. 2.38. See, however, Rogers v. Chiles V. Drake, 2 Mete. (Ky.) 146 ; Han- Smith, 17 Ind. 323, per Perkins J., which cock ('. Johnson, 1 Mete. 242 ; Sale v. seems to hold that the remedy should be Crutchfieid, 8 Bush, 636, 646 ; Hinkle v. by motion. That a demurrer is the pro- Davenport, 38 Iowa, 355, 358 ; Cobb v. per remedy is distinctly held by these 111. Cent. R. R., 38 Iowa, 601, 616 ; Grant later cases, Goldberg v. Utley, 60 N. Y. V. McCarty, 38 Iowa, 468. 427, 429 ; Wiles v. Suydam, 64 id. 173; 2 Mulholland v. Rapp, 50 Mo. 42; Liedersdorf v. Second Ward Bank, 60 Ederlin v. Judge, 36 Mo. 350 ; Young v. Wis. 406. Coleman, 43 Mo. 179, 184 ; Cheely's Ad- 494 CIVIL REMEDIES. are merely separated, and new actions corresponding with such division are proceeded with, it would seem to be a necessary prerequisite that the causes of action should have been separately and distinctly stated in the original pleading. To allow the demurrer to a complaint or petition in which several causes of action are mingled up, and to divide this mass of confused alle- gations into as many complaints as there are causes of action, would seem to be a work of great difficulty, if not of absolute impossibility. Again: it is always difficult if not impossible to determine with exactness whether a complaint or petition does contain two or more different causes of action when the allega- tions are thus combined into one statement. If the averments are found sufficient to express one cause of action, it may gener- ally be said that the other averments are mere surplusage, which should be rejected on a motion made for that purpose, and not the material allegations which set forth a second cause of action. For these reasons, which are based chiefly upon notions of con- venience, a demurrer does not seem to be an appropriate remedy until the causes of action have been separated, and it is known with certainty what and how many they are. In this case, there- fore, the more convenient practice would seem to be a motion in the first instance to make the pleading more certain and definite by arranging it into distinct causes of action, or a motion to strike out the redundant matter and surplusage and thus reduce it to a single definite cause of action. The latter order would tal^e the place of a demurrer ; the former would be followed by a demurrer after the causes of action had been separated. III. Meaning of the term " Cause of Action ; " Where one Cause of Action only is stated, although several different kinds of relief are demanded. § 452. The cause of action is very often confounded with the remedy. This mistake or misconception is peculiarly apt to occur in cases where, under the code, the plaintiff seeks to obtain legal and equitable relief combined, the right to such reliefs springing from the same state of facts. To avoid this tendency to confusion, it is absolutely necessary to ascertaui and fix with certainty the true meaning of the terra " cause of action." The American courts of the present day seem to avoid the JOINDER OF CAUSES OF ACTION. 495 announcement of any general principle, or the giving of any general definitions. While, therefore, they have repeatedly held that but one cause of action was stated in a case before them, and have carefully distinguished it in that instance from the reliefs demanded, they have not attempted to define the term " cause of action " in any general and abstract manner, so that this definition might be used as a test in all other cases. We shall obtain no direct help, therefore, from their decisions ; but they will furnish examples and tests to determine whether any definition which may be framed is accurate. I shall, however, attempt a definition or description, basing it upon an analysis of the essential elements which enter into every judicial proceeding for the protection of a private right on the one side, and the enforcement of a private duty on the other. There are such elements or features which necessarily combine in every action ; they are independent of any judicial recognition ; they exist in the very nature of things ; and, if we can by an accurate analysis discover these elements, we shall at once have obtained a correct notion of the term "' cause of action." § 453. Every action is brought in order to obtain some partic- ular result which we term the remedy^ which the code calls the " relief," and which, when granted, is summed up or embodied in the judgment of the court. This result is not the "cause of action " as that term is used in the codes. It is true this final result, or rather the desire of obtaining it, is the primary motive which acts upon the will of the plaintiff and impels him to com- mence the proceeding, and in the metaphysical sense it can properly be called the cause of this action, but it is certainly not 80 in the legal sense of the phrase. This final result is the "ob- ject of the action" as that term is frequently used in the codes and in modern legal terminology. It was shown in the open- ing paragraphs of the introductory chapter that every remedial right arises out of an antecedent primary right and correspond- ing duty and a delict or breach of such primary right and duty by the person on whom the duty rests. Every judicial action must therefore involve the following elements : a primary right possessed by the plaintiff, and a corresponding primary duty devolving upon the defendant ; a delict or wrong done by the defendant which consisted in a breach of such primary right and duty ; a remedial right in favor of the plaintiff, and a remedial 496 CIVIL REMEDIES. duty resting ou the defendant springing from this delict, and finally the remedy or relief itself. Every action, however com- plicated, or however simple, must contain these essential ele- ments. Of these elements, the primary right aud duty and the delict or wrong combined constitute the cause of action in the le- gal sense of the term, and as it is used in the codes of the several States. They are the legal cause or foundation whence the right of action springs, this right of action being identical with the "remedial right" as designated in my analysis. In accordance with the principles of pleading adopted in the new American system, the existence of a legal right in an abstract form is never alleged by the plaintiff; but, instead thereof, the facts from which that right arises are set forth, and the right itself is inferred therefrom. The cause of action, as it appears in the complaint when properly pleaded, will therefore always be the facts from which the plaintiff's primary right and the defend- ant's corresponding primary duty have arisen, together with the facts which constitute the defendant's delict or act of wrong. § 454. The cause of action thus defined is plainly different from the remedial right, and from the remedy or relief itself. The remedial right is the consequence, the secondary right which springs into being from the breach of the plaintiff's primary right by the defendant's wrong, while the remedy is the consum- mation or satisfaction of this remedial right. From one cause of action, that is, from one primary right and one delict being a breach thereof, it is possible, and not at all uncommon, that two or more remedial rights may arise, and therefore two or more different kinds of relief answering to these separate remedial rights. This is especially so when one remedial right and cor- responding relief are legal, and the other equitable ; but it is not confined to such cases. One or two very familiar examples will sufficiently illustrate this statement, and will show the neces- sity as well as the ease of discriminating between the " cause of action " and the remedy. Let the facts which constitute the plaintiff's primary right be a contract duly entered into b}' which the defendant agreed to convey to the plaintiff a parcel of land, and full payment by the plaintiff of the stipulated price and per- formance of all other stipulations on his part. Let the delict be a refusal by the defendant to perform on his part. This is the cause of action, and it is plainly single. From it there arise two JOINDER OF CAUSES OF ACTION. 497 remedial rights and two coiTesponding kinds of relief; namely the remedial right to a compensation in damages, with the relief of actual pecuniary damages ; and the remedial right to an actual j)erformance of the agreement, and the relief of an execution and delivery of the deed of conveyance. If the plaintiff in one action should state the foregoing facts constituting his cause of action, and should demand judgment in the alternative either for damages or for a specific perforjnance, he would, as the analysis above given conclusively shows, have alleged but one cause of action, although the reliefs prayed for would be distinct, and would have belonged under the old system to different forums, — the common law and the equity courts. Again: let the plain- tiff's primary right be the ownership and right to possession of a certain tract of land, and let the facts from which it arises be properly alleged ; let the delict consist in the defendant's wrong- ful taking and retaining possession and user of such land for a specified period of time, and let the facts showing this wrong be properly averred in the same pleading. Evidently the plaintiff will have stated one single and very simple cause of action. The remedial rights arising therefrom, and the remedies themselves corresponding thereto, will be threefold, and all of them legal : namely, (1) the right to be restored to possession, with the actual relief of restored possession; (2) the right to obtain com- pensation in damages for the wrongful withholding of the land, with the relief of actual pecuniary damages ; and (3) the right to recover the rents and profits received by the defendant during the period of his possession, with the i-elief of an actual pecu- niary sum in satisfaction therefor. Here, also, the single nature of the one cause of action plainly appears, and its evident dis- tinction from the various remedial rights and actual remedies which do or may arise from it.^ § 455. The result of this analysis of the necessary elements which enter into every action is simple, easily to be understood, and yet exceedingly important ; and the principle I have thus deduced will serve as an unerring test in determining whether dif- ferent causes of action have been joined in a pleading, or whether 1 The fact that the codes generally reliefs or remedies based upon the same seem to treat these different claims for facts which constitute a single cause of relief as distinct causes of action does not action. See Larned i'. Hudson, 57 N. Y. afEect the correctness of my analysis; 151, which is based entirely upon tlie they are plainly no more than separate language of the statute. 82 498 CIVIL REMEDIES. one alone has been stated. Tf the facts alleged show one primary right of tlie plaintiff, and one wrong done by the defendant which involves that right, the plaintiff has stated but a single cause of action, no matter how many forms and kinds of relief he may claim that he is entitled to, and may ask to recover ; the relief is no part of the cause of action. In applying this test, however, it must be observed that the single primary right, and the single' wrong, which, taken together, constitute the one cause of action, may each be very complicated. For example, the primary right of ownership includes not only the particular subordinate rights to use the thing owned in any manner permitted by the law, but also similar rights to the forbearance on the part of all mankind to molest the proprietor in such use. The facts which constitute the delict complained of may embrace not only the wrongful jb- taining, and keeping possession, in such a case as the one last supposed, but also the procuring and holding deeds of conveyance, or other muniments of title, by which such possession is made pos- sible, and to appear rightful. These suggestions are necessary to guard against the mistake of supposing that a distinct cause of action will arise from each special subordinale right included in the general primary right held by the plaintiff, or from each par- ticular act of wrong, which, in connection with others, may make up the composite but single delict complained of. § 456. On the other hand, if the facts alleged in the pleading show that the plaintiff is possessed of two or more distinct and separate primary rights, each of which has been invaded, or that the defendant has committed two or more distinct and separate wrongs, it follows inevitably, from the foregoing principle, that the plaintiff has united two or more causes of action, although the remedial rights arising from each, and the corresponding reliefs, may be exactly of the same kind and nature. If two separate and distinct primary rights could be invaded by one and the same wrong, or if the single primarj- right should be invaded by two distinct and separate legal wrongs, in either case two causes of action would result ; a fortiori must this be so when the two primary rights are each broken by a separate and dis- tinct wrong. § 457. The general principle which I have thus drawn from an analj'Sis of the essential elements which make up a judicial action can be applied to all possible cases, and will furnish a sure and JOINDER OF CAUSES OF ACTION. 499 simple test by which to determine whether one or more causes of action have been embodied in any complaint or petition. The demand for relief must be entirel}" disregarded ; whether single or complex, it forms no part of, and has no effect upon, the " cause of action." Rejecting, therefore, all those portions of the pleading which describe the remedy or relief demanded, the inquiry should be directed exclusively to the allegations of fact which set forth the primary right of the plaintiff and the wrong done by the defendant. If one such right alone, however com- prehensive, is asserted, and if one such wrong alone, however complex, is complained of, but one cause of action is alleged. If the examination discloses more than one distinct and independent primary right held by the plaintiff, and all of them invaded by the defendant, or more than one distinct and independent wrong done by the defendant to the plaintiff's primary right or rights, then the complaint or petition has united different causes of ac- tion, and the rules which control their joinder are brought into operation.^ § 458. Although the decisions do not attempt to furnish any general test by which one may determine the nature of a " cause of action," and whether a pleading contains one or more, they fully recognize the fact that the cause of action is not to be con- founded with the relief, and that the demand for, or the granting of, many forms of remedy, may be based upon a single cause of action. The following cases not only exhibit the proneness to confound the remedy with the cause of action, and the necessity of understanding the essential distinction between them, but they also illustrate, and fully sustain, the foregoing principles, which I have proposed as the test by which such distinction may be at once recognized : A complaint alleged that the plaintiff, being indebted to the defendant upon several promissory notes held by ^ See Davenport v. Mxirray, 68 Mo. tal Ins. Co., 5 id. 343 ; Young v. Drake, 198 ; Donovan v. Dunning, 69 id. 436 ; 8 id. 61 ; Prentice v. Jansen, 7 id. 80 ; Young I'. Young, 81 N. C. 91. As exara- Van Wagener v. Kemp, 7 id. 328 ; Wil- ples of only one cause of action, although Haras v. Peabod}', 8 id. 271; Board of several distinct reliefs are asked and ob- Supervisors v. Walbridge, 38 Wis. 179; tained, see the following cases: People Liedersdorf f . Flint, 50 id. 401 ; Collins t>. V. Tweed, 63 N. Y. 194; 5 Hun, 353; Cowen, 52 id. 634 ; Kahn r. Kahn, 15 Fla. Haines v. Hollister, 64 id. 1; Boardman 400; Donovan v. Dunning, 09 Mo. 4.30; V. Lake Shore, &c. R. E., 84 id. 157; Stewart v. Carter, 4 Neb. 564; Young r Tisdale v. Moore, 8 Hun, 19; Skidmore Young, 81 N. C. 91 ; Barrett v. Watts, 13 V. Collier, 8 id. 50 ; Walters v. Continen- S. C. 441. 500 CIVIL REMEDIES. the latter, had assigned to it a hoiid and mortgage as collateral secnrity ; that the defendant liad collected the amount due on the bond and mortgage, which was more than sufficient to pay all the notes in full ; that a surplus was left remaining in its hands, and upon these facts demanded payment by the defendant of such balance, and surrender and cancellation of the notes so given hy the jilaintiff. To this complaint the defendant demurred, on the ground that causes of action had been improperly joined. The New York Court of Appeals held that there was no uniting at all of different causes of action, and that only a single one was stated, although two distinct reliefs were demanded.^ § 459. Actions brought to reform instruments in writing, such as policies of insurance and other contracts, mortgages, deeds of conveyance, and the like, and to enforce the same as reformed by judgments for the recovery of the money due on the contracts, or for the foreclosure of the mortgages, or for the recovery of pos- session of the land conveyed by the deeds, fall within the same general principle. One cause of action only is stated in such cases, however various may be the reliefs demanded and granted.^ 1 Calioon >•. Rank of Utica, 7 N. Y. pledged, and payment of tlie surplus. 486. The defendant insisted tliat a cause That a claim so simple in its character, so of action for the recovery of money was well recognized, and even familiar, under united witli one equitable in its nature, the old practice in chancery, should be The court said, per Johnson J. (p. 488) : seriously regarded as two distinct causes " The ground on which this case ought to of action, requiring distinct modes of trial, be put is, that the coniplaintdocs not con- and incapable of being joined in a single tain two causes of action. The claim is suit, is quite as surprising as the doctrine single. . . . The plaintiff now seeks an itself, if held to be well founded, would account of the proceeds of the mortgage be inconvenient." See also Connor v. and of their disposition, and to have the Board of Education, 10 Minn. 4-39, 444; balance paid over, and the notes which Sortore v. Scott, 6 Lans. 271, 275, 276; are satisfied delivered up. It is no an- Reedy v. Smith, 42 Cal. 245, 250. swer to say that the balance of moneys ^ Bidwell v. Astor Mut. Ins. Co., 16 could have been recovered in an action N. Y. 203 ; N. Y. Ice Co. v. N. W. Ins. for money had and received. It would Co., 23 N. Y. 357 ; Guernsey v. Am. Ins. none the less have been the proper foun- Co., 17 Min. 104, 108, actions to reform dation for a bill in equity. ... It is only a policy of insurance, and to recover the because there is no dispute about the amount due on it as reformed ; Gooding amount due tha^ there seems to bo any v. McAllister, 9 How. Vr. 123, action to room f(jr mistake as to the character of reform a written contract, and to recover the claim. If that remained to be ascer- a money judgment upon it for the sum tained, it would be the clearest possible due when corrected ; McCown v. Sims, case for an account ; and yet this case is 60 N. C. 159 ; Rigsbee v. Trees, 21 Ind. not clearer than the one before us. . . . 227, actions to reform a promissory note, It is, in short, a complaint by a debtor to and to recover the amount thus shown to have his obligation delivered up and can- be due. The decision in the latter case is celled, and an account of the securities referred, however, to the special provision JOINDER OF CAUSES OF ACTION. 501 The principle also applies to actions brought against a fraudulent grantor or assignor and liis grantees or assignees to set aside the transfers, although made at different times and to different per- sons, and to subject the property to the plaintiff's liens, as in creditors' suits ; or to compel a reconve3'ance and restoration of possession of the property, as in the case of suits by defrauded heirs or cestuis que trustent, and the like. There is but one cause of action against the various defendants in these and similar suits. ^ In like manner, the principle applies to actions brought by persons holding the equitable title to lands against those in whom the legal title is vested, for the purpose of setting aside the deeds under which the latter claim, on the ground of fraud or other illegality, and of recovering or confirming posses- sion and quieting title. The different reliefs which the plaintiff seeks to obtain do not constitute different causes of action .^ It also applies to actions for the foreclosure of mortgages, where the plaintiff seeks to obtain not only a sale of the mortgaged prem- ises, but also a judgment for a deficiency against the mortgagor of the Indiana code, § 72, quoted supra in § 440 ; Hunter v. McCoy, 14 Ind. 528 ; McClurg V. Phillips, 49 Mo. 315, 316, actions to reform a mortgage, to foreclose as thus corrected, or to reform a deed and quiet the title thereunder ; Walkup v. Zehring, 13 Iowa, 306, action to correct mistakes in a series of title-deeds, to set aside another deed of the same land, and to quiet the plaintiff's title and possession. See, however, per contra, Harrison v. Juneau Bank, 17 Wis. 340, which was a suit to reform a contract, and to recover the money due upon it when corrected. Dixon C. J. said (p. .350) : " The com- plaint contains two distinct causes of ac- tion, — the one equitable, the other legal, — whicli in strictness should have been separately stated. Tliat for the reforma- tion was equitable, and was for the court ; the other, for the recovery of money, was legal, and was for the jury." The learned court has here fallen into the evident error of confounding the cause of action with the relief ; and its decision is in direct conflict with the doctrine established by the numerous authorities quoted above and below, which involve similar facts and the same principle. The doctrine of this case has become established in Wis- consin ; a union of equitable and legal causes of action is hardly permitted in that State. 1 Bassett v. Warner, 23 "Wis. 673, 685; Blake v. Van Tilborg, 21 Wis. 672; Bovvers o. Keesecher, 9 Iowa, 422 ; Howse V. Moody, 14 Fla. 69, 63, 64. These were actions by heirs, or other persons in the position of beneficiaries, against ad- ministrators, or other individuals holding a fiduciary relation to them, and their grantees or assignees, to set aside fraudu- lent transfers, to compel an accounting and a restoration, and other like reliefs. The doctrine of the te.xt was freely ap- plied in them all ; Winslow v. Donsman, 18 Wis. 456 ; Gates v. Boomer, 17 Wis. 455; North v. Bradway, 9 Minn. 183; Chautauqua Co. Bank v. White, 6 N. Y. 236. These actions were all ordinary creditors' suits. 2 Phillips V. Gorham, 17 N. Y. 270; Laub V. Buckmiller, 17 N. Y. 620 ; Lattin V. McCarty, 41 N. Y. 107. For the facts and extracts from the opinions in these important cases, see supra, ch. 1, §§ 68, 78, and notes. 502 CIVIL REMEDIES. and other persons who ai-e personally liable for the debt. In several States the codes expressly authorize such actions.^ The weight of authority, however, in those States whose codes do not contain such express provisions, seems to be the other way ; and the rule therein seems to be generally established, that, in an action of foreclosure, a judgment for a deficiency cannot be ob- tained against any persons liable for the debt other than the mortgagor himself ; it is said that the making such third person a party, and the praying a decree for deficiency against liim, is a misjoinder of causes of action.^ A suit by the vendor of land to recover the purchase price, and to enforce his lien therefor upon the premises sold or conveyed, includes but one cause of action, the double relief plainly arising from the single state of facts.^ § 460. The following are some additional instances in which the doctrine has been approved and enforced by the courts, and the cause of action held to be a single one : An action against a husband and wife, brought upon an alleged indebtedness of both, and an agreement of both to secure the same by a mortgage upon the wife's lands, although at the trial the debt was shown to be against the husband alone, and no such agreement as the one alleged was proven ; * an action by the vendee in a land contract for a specific performance and for damages, where judgment was given for damages alone ;^ an action by the heirs and adminis- trator of a deceased cestui que trust against the trustee who held both real and personal estate in trust, for an accounting, a con- veyance of the land, and a transfer of the personal property ;^ an 1 Conn. Mut. Life Ins. Co. c. Cross, 18 foreclosure and sale on the mortgapo, any Wis. 109; Sauer v. Steinbauer, 14 Wis. issue of fact affecting tlie former demand 70 ; \Veil v. Howard, 4 Nev. 384 ; Greither for relief must be tried by a jury if either I'. Ale.xander, 15 Iowa, 470, 473, per party require it. See also McCarthy v. Wright C. J. ; Eastman v. Turman, 24 Garraghty, 10 Ohio St. 438. Cal. 379, 382, per Sawyer J. ; Rollins v. 3 Stephens v. Magor, 25 WHs. 533 ; Forbes, 10 Cal. 299 ; Farwell u. Jackson, Turner v. Pierce, 34 Wis. 658; Walker 28 Cal. 105. V. Sedgwick. 8 Cal. 398. In the latter - Faesi v. Goetz, 15 Wis. 231 ; Cary case, the action was on notes given for I'. Wheeler, 14 Wis. 281 ; Jessup v. City tiie price. Bank, 14 Wis. 331 ; Stilwell v. Kellogg, < Marquat r. Marqunt. 12 N. Y. 3.36. 14 Wis. 461 ; Borden v. Gilbert, 13 Wis. ^ Barlow r. Scott. 24 N. Y. 40 ; Stern- 670; Doan I'. Holly. 26 Mo. 18G ; 25 Mo. berger v. McGovern. 56 N. Y. 12. 21. 357. In Lad.l v. .James, 10 Ohio St. 437, it And see Duvall v. Tinsley, 54 Mo. 93, was said that when a mortgage is given to 95. secure a note, and an action is brought ^ Richtmyer v. Richtmyer, 50 Barb. Betting out both, and demanding judg- 55. ment for money on the note, and for a JOINDER OF CAUSES OF ACTION. 503 action to remove a nuisance, fur damages, and for an injunction ; ^ for admeasurement of dower, possession and recovery of rents and profits ; 2 by one tenant in common against the other, to compel a specific performance of the hitter's agreement to convey his share, or for a partition ; ^ an action by a stockholder against a bank, its officers, and their assignee, to set aside an assignment, to remove the officers, for an accounting, and for a winding-up of the corporation, — all based upon the fraudulent practices of the officers;* where a debtor who had executed a deed to A. in trust for his creditor B. alleged that the two had fraudulently sold the land which had been bought in by B., and sought to set aside the sale and to redeem ; ^ an accounting against the executor of a father and the administrator of his son, where the estates were so mingled and confused that a separate accounting was impossible ; ^ an action against the executor of a lessee who had continued to occupy the premises, to recover the rent accruing before the death, as well as that accruing after ; ' an action to recover damages for negligently driving against and injuring the plaintiff and his horse and carriage ; ^ an action to recover damages for fraudulent representations in the sale of some sheep, the plaintiff claiming special damages for the destruction of his entire flock, caused by the communication of disease from those which he had purchased ; ^ an action for malicious prosecution, in which special acts of wrong and damage were alleged ; ^^ and, it has been said, an action to recover damages for several distinct and separate breaches of one contract.^^ 1 Davis !'. Lambertson, 66 Barb. 480. more than doubtful. Mason J. makes the - Brown r. Brown, 4 Robt. 688. cause of action to consist of the delict 3 Hall V. Hall, 38 How. Pr. 07. This alone. Certainly the plaintiff's right to decision is certainly opposed to the prin- his own person and to his property were ciple stated in the text, and to the weight different rights, and the injury to them of authority. Two different primary created two causes of action, rights are clearly stated ; one based upon ^ Wilcox v. McCoy, 21 Ohio St. 055, the contract, and the other upon the citing Packard v. Slack, 32 Vt. 9. ownership in common. ^^ Schenck v. Butsch,32 Ind. 338. * Mitchell V. Bank of St. Paul, 7 Minn. " Fisk v. Tank, 12 Wis. 276, 208, per 252, 255. Dixon C. J. The acts and defaults com- ^ McGlothlin )•. Hemery, 44 Mo. 350. plained of in this case can hardly be The opinion in this case is an elaborate called distinct and separate breaches, discussion of the entire doctrine. See Roehring v. Iluebschmann, 34 Wis. ^ McLachlan v. Staples, 13 Wis. 448, 185 ; Kansas City Hotel Co. v. Sigement, 451. 53 Mo. 176, that different items of an 7 Pugsley V. Aikin, 11 N. Y. 494. account or claim constitute but one cause * Howe V. Peckham, 10 Barb. 656 (S. of action. T.). Tlie correctness of tiiis decision ia 504 CIVIL REMEDIES. § 461. To the principle which I have thus stated, and the doc- trine approved by such an overwhelming weight of judicial authority, there was opposed a series of decisions in Missouri, which, while they remained unquestioned, rendered the law of that State widely different in this respect from that which was established in other commonwealths. The Supreme Court held in numerous cases, and a great variety of circumstances, that where upon the facts the plaintiff would ultimately be entitled to different kinds of relief, — such as, for example, the setting aside deeds of conveyance to the defendant, and the recovery of the possession of the land, — if, after alleging all the facts, he should demand the separate reliefs, his complaint would contain different causes of action, and would be held bad on demurrer, or even judgment arrested after verdict, or reversed on appeal because of the error. In other words, the court completely identified the relief, and even the prayer for it, with the cause of action. 1 The court has, however, recently receded from this most untenable position, and seems to have overruled this long series of decisions.^ The Missouri court seems to have finally brought the law of that State in reference to the subject-matter under consideration into harmony with the plain intent of the code and the well-settled doctrines of equity jurisprudence, as well as into a conformity wath the rule settled by the unanimous consent of other courts. § 462. I have thus described the cases in which but one cause of action is alleged, altliough the many and sometimes conflicting demands for relief may make it appear that several causes of action have been united and mingled together in the pleading. I have stated a general principle which will furnish a certain test for determining all such cases, by ascertaining what allegations contain the " cause of action," and what contain the demands for relief, and by showing the essential nature of each, and the necessary distinctions between them. I shall now proceed to consider the classes of cases in which different causcb of action are united either properly or improperly. 1 Curd V. Lackland, 43 Mo. 139 ; See also other cases of tlie same import, Wynn v. Cory, 43 Mo. 301 ; Gray r. cited supra, §§ 92, 79. Payne, 43 Mo. 203; Peyton i;. Rose, 41 - Henderson v. Dickey, 50 Mo. 161, Mo. 2.:i7; Gott v. Powell, 41 Mo. 41G; 10.'), per Wagner J.; Duvall v. Timley, Moreau v. Detchemendy, 41 Mo. 431. 04 Mo. 93. JOINDER OF CAUSES OF ACTION. 505 IV. The Joinder of Causes of Action arising out of the same Trans- action or Transactions connected with the same Subject of Ac- tion ; Legal meaning of the terms '■'• Transaction " and " Subject of Action.'^ § 463. The class which is described by tlie language of the codes quoted in the above heading is broad, comprehensive, vague, and uncertain. The principal design was undoubtedly to embrace the vast mass of equitable actions and causes of action which could not be classified and arranged in any more definite manner ; and the language was properly left vague, so that it might not in any manner interfere with the settled doctrines of equitable procedure and pleading, parties and remedies. Al- though this general design is very apparent, yet it is no less evident that the author of the clause failed to distinguish between the " cause of action " and the remedy or relief which is sought to be obtained by means of the action. The most fre- quent application of this class in the actual administration of justice has been and will be to equitable actions : but the lan- guage is not confined to them ; it includes legal controversies as well. If all the other requisites of the statue are complied with, legal causes of action of the most dissimilar character — for example, contract and tort — may be united in one proceeding, provided they all arise out of the same transaction, or out of transactions connected with the same subject of action. With respect to equitable cases, there cannot be much difficulty ; it is always easy to say, and perhaps to see, that the facts constituting the causes of action arise at least in some vague manner from the same transaction, or from transactions connected with the same subject of action. With respect to legal cases the difiiculty is much greater, and is sometimes impossible to be overcome by any logical reasoning. The question will be sometimes presented, not only whether the facts constituting two or more causes of action have arisen from the same transaction, but whether it is possible, in the nature of things, that they could arise in such a manner. § 464. A full interpretation of the language used in the codes would result in a general rule applicable to all actions ; a rule which should determine when causes of action may and do arise 506 CIVIL KEMEDIES. out of the same transaction, or out of transactions connected with the same subject of action. This rule would be obtained, not from an analysis of all possible causes of action, but from a construction of the language used by the legislature ; and it would require a legal definition, in an accurate but universal manner, of the terms " transaction," " connected with," and " subject of action." These three terms are the controlling words upon which the whole clause turns ; and until the courts shall have defined them in a general and positive manner, all attempts at interpreting the language and deducing any com- prehensive and practical rule from it must be futile. Until such a definition is made, each case must be decided upon its own circumstances, in a mere empirical method, so that the confusion and uncertainty will continue, and even increase, in the place of the uniformit}' and certainty in the practice which the profession and suitors have the right to demand. In short, the courts must break away from the judicial habit which has of late years grown upon them, and must be willing to attempt the discussion and settlement of definitions, principles, and doctrines connected with the reformed procedure, in a general and comprehensive form. Although little aid can be derived from judicial decisions I shall attempt the extremely difficult task of defining these terms, or, to be more accurate, shall attempt to describe their legal significance and effect, and thus to aid in reaching a gen- eral rule or principle by which to determine whether any given cases are embraced within the class designated by the legis- lature. § 465. In corroboration of the statement made above in regard to the general purport and object of the class in question, I quote the language used by an eminent judge of the New York Court of Appeals, which, while it contains some unjust remarks upon the authors of the New York code, is a very pointed and accu- rate description of the clause and of its immediate design : " In respect to the joinder of causes of action, the provision of the law, so far as is material to the question, now is, that * the plain- tiff may unite in the same comjjlaint several causes of action, whether they be such as have heretofore been denominated legal or e(}uitable, or both, where they all arise out of the same trans- action or transactions connected witli the same subject of action.' The authors of the code, in framing this and most of its other JOINDER OF CAUSES OF ACTION, 507 provisions, appear to have had some remote knowledge of what the previous law had been. This provision as it now stands was introduced in the amendment of 1852, because the successive codes of 1848, 1849, and 1851, with characteristic perspicacity, had in effect abrogated equity jurisdiction in many important cases by failing to provide for a union of subjects and parties in one suit indispensable to its exercise. This amendment, there- fore was not designed to introduce any novelty in pleading and practice. Its language is, I think, well chosen for the purpose intended, because it is so obscure and so general as to justify the interj)retation which shall be found most convenient and best calculated to promote the ends of justice. It is certainly impos- sible to extract from a provision so loose, and yet so comprehen- sive, any rules less liberal than those which have long prevailed in courts of equity." ^ Mr. Justice Comstock plainly regards it unnecessary, if not impossible, to attempt a definition of the terms employed in the passage which he quotes, and would leave each case to be decided upon its own circumstances. This is un- doubtedly the easier method for the courts to pursue ; but suit- ors, as well as the profession, have a right to ask from them some rules by which a reasonable degree of certainty as to the correct manner of bringing and conducting causes shall be secured. Re- garded as a statutory enactment of the equity doctrine touching the joinder of causes of action in one suit, the clause perhaps requires no special interpretation, since it may be assumed to permit the previous equitable principles and rules of procedure to exist unchanged. In this light alone it is treated by Mr. Justice Comstock in the extract taken from his opinion. But as it ap- plies also to legal actions, and as there were no prior doctrines and rules of practice in courts of law which it reproduces or suffers to remain operative, it does as to them "introduce a nov- elty in pleading and practice." In order to fix its application in such cases, the meaning of its controlling terms must be deter- mined. There was no prior rule of the common-law procedure which permitted the union of a claim upon contract with another arising from violence to property or person under any circum- stances, and yet it is possible that such a combination may be made by virtue of this particular provision. § 466. I shall first collect some general observations which 1 N. Y. & N. H. R. R. V. Schuyler, 17 N. Y. 592, 604, per Comstock J. 508 CIVIL REMEDIES. have been made by the courts upon the legal import of these terms, and shall, with whatever aid is derived from the judicial interpretation, attempt an independent analysis. A complaint united a cause of action for an assault and battery with one for slander, alleging that the defamatory words were uttered while the beating was in actual progress. To a demurrer for a mis- joinder, it was answered that both causes of action arose out of the same transaction. The court disposed of this position in the following manner : " It by no means follows that, because the two causes of action originated or happened at the same time, each cause arose out of the same transaction. It is certainly neither physically nor morally impossible tliat there should be two transactions occurring simultaneously, each differing from the other in essential attitudes and qualities. As here, the trans- action out of which the cause of action for the assault springs is the beating, the phj'^sical force used ; while the transaction out of which the cause of action for the slander springs is not the beat- ing or the force used, but the defamatory Avords uttered. The maker of a promissory note might, at the very instant of its deliver}' and inception, falsely call the payee a thief ; and yet who would say that the two causes of action arose out of the same transaction? It has been held that a contract of warranty and a fraud practised in the sale of a horse at the same trade did not arise out of the same transaction, so as to be connected each with the same subject of action, and that a complaint containing both causes of action was demurrable.^ Assault and battery and slan- der are as separate and distinct causes of action as any two actions whatever that can be named. The subjects of the two actions are not connected with each other. Each subject is as distinct and different from the other as the character of an indi- vidual is from his bodily structure. The question is not whether both causes of action sprang into existence at the same moment of time. Time has very little to do with solving the real ques- tion. The question is. Did each cause of action accrue or arise out of the same transaction, the same thing done ? It is apparent that each cause of action arose, and indeed must necessarily have arisen, out of the doing of quite different things by the defend- ant, — different in their nature, in all their qualities and charac- teristics, and inflicting injuries altogether different and dissimilar. 1 Sweet V. Ingerson, 12 IIow. Pr. 331. JOINDER OF CAUSES OF ACTION. 509 The same evidence would not sustain each cause of action, and they may require different answers."^ It has been held, how- ever, that the two causes of action under exactly the same cir- cumstances do arise out of the same transaction, and may be united in the same complaint.^ § 467. A complaint contained one cause of action for the breach of a warranty given on the sale of a horse, and a second cause of action for fraudulent representations respecting the qual- ity and condition of the horse made at the same sale, the plaintiff claiming that both causes of action arose out of the same transac- tion. The court said : " It is somewhat difficult to determine the precise extent and boundaries of the first subdivision of § 167 of the code, which provides for the joinder of causes of action where they arise out of the same transaction or transactions con- nected with the same subject of action. In this case the plaintiff first counts in assumpsit on an alleged warranty of the horse, and in the second count for fraud and deceit in wrongfully concealing the defects of the same horse. It may be true that these causes of action arise out of the same transaction, to wit, the bargain for the purchase of the horse ; but are they connected with the same subject of action ? The subject of the action is either the con- 1 Anderson v. Hill, 63 Barb. 238, 245, these facts constitute only one transac- per T. A. Jolinson J. ; and see Dragoo v. tion. . . . Our code lias abolished all cora- Levi, 2 Duvall (Ivy.), 520, which reaches mon-law forms of action, and has estab- the same conclusion. It should be noticed lished a system for the joinder of actions tiiat Judge Johnson oifers no aflBrmative more philosophical and complete in itself, definition of "transaction," except in It follows the rules of equity more closely making " the same transaction " equiva- than it does those of the common law, lent to " the same thing done." See also one object seeming to be to avoid the Wiles V. Suydam, 64 N. Y. 173, per multiplicity of actions, and to settle in Church C. J.; Hay v. Hay, 13 Hun, 315; one suit as equity did, as far as practi- Frencii v. Salter, 17 id. 546; Board of cable, the whole subject-matter of a con- Supervisors, 38 Wis. 179; Odgensburgh, troversy. It is probably true that the &c. R. R. V. Vermont, &c. R. R., 63 N. Y. two causes of action for assault and bat- 176 (meaning of " subject-matter of the tery and for slander cannot, under our action " ). code, be united, unless both arise out of 2 Brewer v. Temple, 15 How. Pr. 286 ; the same transaction ; but we do not Harris v. Avery, 5 Kans. 146. The first know any reason why they should not be of these was a special term decision, and united when both do arise out of the same is expressly overruled in Anderson v. transaction." The court here simply Hill. I quote from the opinion in the assumes that both causes of action did other as an example of the argument on arise out of the same transaction, but the other side of the question. The de- does not venture upon any reasons for fendanthad wrongfully arrested the plain- that opinion. Tiie decision is a mere tiff, and at the same time called him a begging of the question, thief The court say: "We think that 510 CIVIL REMEDIES. tract of warranty, or it is the fraudulent concealment of the de- fects complained of. These causes of action cannot consist with each other. I am inclined to think that the object of the section was to allow the plaintiff to include in his complaint two or more causes of action actually existing, arising out of the same transac- tion, and when a recovery might be had for both in the same action ; and that the joinder must be of those causes of action which are consistent with, not those which are contradictory to, each other." ^ The judge here fell into at least one palpable error and misreading of the statute. If the causes of action arise out of the same transaction, it is not necessary that they should also be connected with the same subject of ac-tion. There are two alternatives : first, the causes of action must arise out of the same transaction, that is, one transaction ; or, secondly, they must arise out of transactions which are themselves connected with the same subject of action. When it was conceded by the learned judge that the two causes of action in this case arose out of the same transaction, namely, the bargain for the sale of the horse, he had no room for further argument ; the case was practically decided. The real question was, whether they did in fact arise out of the same transaction ; whether the negotiation preceding the sale was the " transaction " within the legal meaning of the provision. The rule laid down at the end of the citation affords no help in solving the difficulty, if indeed it has any meaning whatever. § 468. In a case where the defendants — common carriers — had carried a quantity of wheat of the plaintiffs on their boats from Buffalo to New York, the complaint separately stated two causes of action. The first alleged a wrongful conversion of 340 bushels of wheat, and demanded judgment for their value, as damages; the second alleged an overpayment of freight on the shipment to the amount of $170, and demanded judgment for that sum. In passing upon the question vaisrd by the defend- ants' demurrer, the court said: "It must be admitted that the first cause of action is for a tort, and that the second is on an im- plied contract to recover back money paid by plaintiffs under a 1 Sweet V. InRerson, 12 How. Pr. 3.31, stood that a vendor cannot enter into a per Bacon J. Wliat inconsistency exists contract of warranty, and also make false between these two causes of action ? representations at the same sale, and in Does the learned judge mean to be under- the same lamjwige ? JOINDER OF CAUSES OF ACTION. 511 mistake of facts. But the counsel for the plaintiffs insists that both causes of action arise out of the same subject of action, viz., the transportation of wheat from Buffalo to New York, or arise out of transactions connected with that subject of the action, and are therefore joined under the first subdivision of § 167 of the code. Cases throw but little light on the unmeaning generality of the first subdivision of this section. Now, I do not think the transportation of the wheat to New York is the subject of the plaintiffs' action. The plaintiffs have two causes of action. The subject of the first would be the loss, waste, or wrongful conver- sion of the 340 bushels of wheat by the defendants, and their wrongful neglect or act by which the plaintiffs lost their prop- erty. The subject of the second cause of action would a[)pear to be the $il70 of the plaintiffs' money, which the plaintiffs overpaid to the defendants on account of freight, and which the defend- ants ought to have paid back to the plaintifi"s. Bnt have both these causes of action, or subjects of action, arisen out of the same transaction, within the meaning of this provision of the code? I do not want to nullify the code, and I have no right to nullify it ; and this provision has, or was intended to have, some meaning. Why, then, should I not say that the transaction in this case, out of which have arisen the plaintiffs' two causes of action, and subjects of action, commenced with the shipment of wheat at Buffalo, and has not ended yet, even by the commence- ment of this action ; the plaintiffs' two causes of action being links in the chain of facts containing the transaction, and thus arising out of, or connected with, the same transaction ? By the 'subject of action' in this section of the' code must be intended, not the subjects of the different counts, or of the several causes of action, but of the action as a unit. To say that by the 'sub- ject of action ' is meant the several causes of action nullifies this provision of the code. To give force and effect to it, it aj)pears to me you must say that it means that the plaintiffs can unite several causes of action against the same party, arising out of the same transaction, and nothing more ; and you must treat the concluding words, 'or transactions connected with the same subject of action,' as useless and unmeaning surplusage. Upon the whole, I have come to the conclusion that the plain- tiffs had a right to unite the two causes of action in this com- plaint ; but I have done so. knowing that no reasoning on this 512 CIVIL REMEDIES. point can have much logical precision, or lead to a satisfactory result."! § 469. This opinion, which I have quoted in full, is one of the most elaborate attempts to be found in the reports at an analysis and definition of these terms. Some observations upon it are appropriate here, before passing to the other citations. It is plain that the learned judge labored under a hopeless confusion, both in respect to his notions of the meaning of the important terms, and in respect to his reading of the clause itself. He is com- pletel}' afloat as to the legal import of "subject of action," constantly treating it interchangeably with " transaction," and, notwithstanding his disclaimer, confounding it witli " cause of action." Why, in the one case, is the "subject of action " de- clared to be the conversion of the wheat, the wrongful act or neglect by which the wheat was lost to the plaintiffs, — that is, the very delict committed by the defendant, and in the other case declared to be the money ^ — the very physical thing which the plaintiffs had mistakenly paid to the defendants, and which the defendants were under an implied contract to repay ? It is self- evident that, if by the term " subject of action " is meant the delict or wrong by which the plaintiffs' primary right of property in their wheat was invaded, it must also mean the wrong in the other case, — that is, the breach of the implied contract to repay the money ; and if it denotes, in the one instance, the money which is the subject of the plaintiffs' claim, it must denote the same in the otlier. But the great error of the learned judge con- sists in his mistaken reading of the statute. The view of the plaintiffs' counsel, which he repudiates, was certainly simple and intelligible. That view regarded both causes of action as arising out of one and the same transaction, — the transport of the grain, with all of its incidents. After rejecting it, the judge, in fact, returns to this theory at last, and rests his decision upon it. In his discussion, however, he reverses the order of the statute ; he treats it as though it required the " subjects of action " to be con- nected with one " transaction," instead of prescribing that the " transactions " should be connected with the same " subject of action ;" and, finding that this construction leads him into diffi- culties from which there is no escape, lie finally pronounces the important clause of the section useless surplusage, to be entirely ^ Adams v. Bissell, 28 Barb. 382, 385, per Sutherland J. JOINDER OF CAUSES OF ACTION. 513 rejected. I need hardly say that courts have no authority to reject any portion of a statute, unless it be absolutely mean- ingless. This clause is certainly not thus without meaning. Causes of action may arise from the same transaction, and they ma}' arise from transactions which are connected with the same subject of action, — that is, which have a common point of con- nection with which they are all united, and which common point is the subject of the action. This, I say, is far from meaningless ; on the contrary, it is a simple and plain expression, as far as the language is concerned, when that language is used in its ordinary and popular signification. The difficulty, and the only difficulty, springs from the question, whether the words are thus used in their proper sense, or whether thej^ must receive a special and technical legal interpretation in order to arrive at the legislative intent, and to frame from them a definite rule which shall be ap- plicable to all possible cases. It is an abuse of judicial power to reject an express provision of a statute on the sole ground of a difficulty in understanding and enforcing it. § 470. In an action by a judgment creditor against his debtor and an assignee of such debtor to set aside transfers, to recover property, and for other relief, it was said by the court : " What is the subject of the action in this case? It is the restitution of the property of the judgment debtor, whom the plaintiff represents. To entitle himself to this relief, the plaintiff avers in his complaint different transactions out of which his right to a restitution flows." ^ There is here a plain confusion of ideas. The restitution of the debtors property, which is the relief demanded, is the object of the action. If there is anything connected with this matter clear, it is that the authors of the code used the terms " subject of action " and " object of the action " to describe different and distinct facts. § 471. The general theory of pleading and of actions embodied in the new system was stated with some fulness by the Supreme Court of California, in an action brought against a steamboat company by a passenger to recover damages. The plaintiff had purchased a ticket from San Francisco to San Juan, being led to believe, by public advertisements of the defendants, that the vessel landed at the latter place. She was carried on to Panama, the boat not stopping at San Juan, and was subjected to many personal 1 Palen v. Buahnell, 46 Barb. 24. 33 514 CIVIL REMEDIES. discomforts and injuries, and also suffered consequential pecuniary losses and damage. The complaint was in the form of an action for deceit, rather than on the contract, and contained allegations of false and fraudulent representations. In respect to this com- plaint, the court pronounced the following opinion : " Our system of pleading is formed upon the model of the civil law, and one of its principal objects is to discourage protracted and vexatious liti- gation. It is the duty of the courts to assist as far as possible in the accomplishment of this object, and it should not be frittered away by the application of rules which have no legitimate con- nection with the S3'stem. The provisions for avoiding a multi- plicity of suits are to be liberally and beneficially construed ; and we see no reason why all matters arising from, and constituting part of, the same transaction, should not be litigated and deter- mined in the same action. Causes of complaint differing in their nature, and having no connection with each other, cannot be united ; but the object of this rule is to prevent the confusion and embarrassment which would necessarily result from the union of diverse and incongruous matters, and it has no application to a case embracing a variety of circumstances, so connected as to constitute but one transaction. . . . Every action under our practice may be properly termed an action on the case ; and it would seem that every ground of relief which can be regarded as a part of the case may with propriety be included in the action. . . . The plaintiffs have brought their suit upon the whole case to recover damages, not only for the breach of the contract, but for the wrongs and injuries committed by the owners and agents of the defendants in that connection. The defendants are liable for all the damages resulting from these causes ; and there is certainly no impropriety in adjusting the whole matter in one controversy." ^ The section found in all the codes defining a " counterclaim " contains the expressions " transaction " and " connected with the subject of action," used in the same sense as in the passage now under consideration. In a few of the de- cisions which have been based upon that section, there is some approach towards a general interpretation of these phrases. The cases are collected in tlie succeeding chapter, in the section which treats of the counter-claim, and may be consulted for whatever light they throw upon the present discussion.^ 1 Jones V. Steamboat Cortes, 17 Cal. 487, 497, per Cole J. ^ gge Chap. IV. sect. 6. JOINDER OF CAUSES OF ACTION. 515 § 472. It is plain that little real help can be obtained from the foregoing judicial explanations, and we must return to the very language of the statute itself. This language must be care- fully studied, and the proper force and effect given to all its words. In order that different causes of action may be united, they must arise out of a transaction, or out of transactions. Nothing is said about their being connected with or arising out of the same "subject of action." There are two alternatives only: First, these different causes of action may arise out of the same transaction, — that is, out of one ; or, secondly, they may arise out of different transactions ; but in that case these transac- tions must be connected with the same " subject of action." The words " arise out of " are important and emphatic. They indicate a sequence of cause and effect, so that the causes of action must result as consequences from, or be produced by, the transactions. It is plain that there must be a close connection between the transaction, as the origin, and the causes of action, as the pro- ducts. § 473. " Transaction " is defined by Worcester as " the act of transacting or conducting any business ; negotiation ; manage- ment ; a proceeding." We must recur to the definition of cause of action already given. It includes the plaintiff's primary right which has been invaded, and the wrongful act or default — the delict — of the defendant by which the right is broken. In order that causes of action may arise out of a transaction, there must therefore be a negotiation, or a proceeding, or a conduct of busi- ness, between the parties, of such a nature that it produces, as necessary results, two or more different primary rights in favor of the plaintiff, and wrongs done by the defendant which are viola- tions of such rights. The proceeding, or negotiation, or conduct of business, must, of course, be a unit, one affair, or else it would not be a single transaction ; and yet it must be in its nature com- plex, for it must be the origin of two or more separate primary rights, and of the wrongs which violate them. In order that this may be so, the facts from which the different primary rights flow muiit he parts of, or steps in, the transaction ; and, for the same reason, the wrongful acts or omissions of the defendant must be parts of the same transaction. If a single transaction — that is, a single, continuous, and complex proceeding, or negotiation, be- tween the parties — is analyzed and reduced into its series of acts 516 CIVIL REMEDIES. and defaults, and some of these acts are the facts from which spring one primary right in favor of the plaintiff, and other acts are the facts from which spring a different primary right in his favor, and others still are the violations or breaches of these rights, these two causes of action do truly arise out of the same tiansaction. § 474. It is clear that every event affecting two persons is not necessarily a " transaction " within the meaning of the statute ; indeed, the word as used in common speech has no such signifi- cation. " Transaction " implies mutuality, something done by both in concert, in which each takes some part. Much less can it be said that, because two events occur to the same persons at the same time, they are necessarily so connected as to become one transaction. The case cited above, in which a cause of action for an assault and battery and one for a slander were united, illustrates this statement. Two events happened simultaneousl}'-, the beating and the defamation, but neither was a " transaction '' in any proper sense of the word. The wrong which formed a part of one cause of action was the beating ; that which formed a part of the other was the malicious speaking. The plaintiff's primary rights which previously existed were broken by two independent and different wrongs. The only common point be- tween the causes of action was one of time ; but this unity of time was certainly not a "transaction," Mucli of the difficulty in construing this language has resulted, I think, from a failure to apprehend the true nature of a " cause of action," from a for- getfulness that it includes two factors, — the primary right and the wrong which invades it. A "cause of action"' cannot be said to "arise out of "an event, when the event produces or con- tains but one of these factors, — the delict or wrongful act. § 475. The same analysis applies also to the remaining portion of the clause, the sole difference being that the causes of action arise out of different transactions instead of one. The common tie between the causes of action in that case is, that the transac- tions themselves are connected with the same " subject of action." What is meant by this term ? It cannot be synonymous with "cause of action." This appears from making the substitution, since the result would be, " causes of action may be united when they arise out of transactions connected with the same cause of action ; " which is an absurdity, a mere statement in a circle. JOINDER OF CAUSES OF ACTION. 517 "Subject of action" must, therefore, be something different from "cause of action." It is also different from "object of the ac- tion." The object of the action is the thing sought to be attained by the action, the remedy demanded and finally awarded to the plaintiff. Causes of action cannot arise out of transactions con- nected with the " object of the action," because that object is something in the future, and could have had no being when the transactions took place out of which the causes of action arose. As the causes of action arise out of certain transactions, and as these transactions are connected with a " subject of action," it is plain that this subject must be in existence simultaneously with the transactions themselves, and prior to the time when the causes of action commence. This fact also shows that the "subject" must be something other than the cause of action. The phrase was not used in legal terminology prior to the code, but another one very similar to it was in constant use, and had acquired a well- defined meaning ; namely, " subject-matter of the action.'' Thus the rule is familiar, that courts must have jurisdiction of " the sub- ject-matter of the action," as well as over the parties. Courts might have the power in a proper case to grant any kind of relief, legal or equitable, and to entertain any form of pi'oceeding, and yet not have jurisdiction over some particular " subject-matter." The term " subject of action," found in the code in this and one or two other sections, was doubtless employed by its authors and the legislature as synonymous with, or rather in the place of, " subject-matter of the action." I can conceive of no other inter- pretation which will apply to the phrase and meet all the require- ments of the context. " Subject-matter of the action " is not the " cause of action," nor the " object of the action." It rather de- scribes the physical facts, the things real or personal, the money, lands, chattels, and the like, in relation to which the suit is prose- cuted. It is possible, therefore, that several different " transac- tions " should have a connection with this " subject-matter," or, what seems to me to be the same thing, with this " subject of action." The whole passage is, at best, a diificult one to construe in such a manner that any explicit and definite rule can be ex- tracted from it. I remark, in bringing this analysis of the lan- guage to a close, that the latter clause of the subdivision — "or transactions connected with the same subject of action" — can probably have no application to legal causes of action, and can 518 CIVIL REMEDIES. only be resorted to in practice as describing some equitable suits which involve extremely complicated matters. In fact, Mr. Justice Comstock's position is doubtless correct, that the entire subdivision finds its primary and by far most important applica- tion to equitable rather than to legal proceedings. § 476. Although the courts have generally refrained from any discussion of this clause, they have had frequent occasion to in- voke its aid ; and the following cases will furnish some examples of judicial decisions based upon it. The causes of action united in the same complaint or petition were held to have arisen out of the same transaction, where one was for the recovery of the pos- session of land, and the other was for the value of its occupation by the defendant ; ^ for an accounting and payment of the balance found due, and for the surrender up of securities ; ^ for injuries to the person and for those to the property of a passenger, com- mitted by the wrongful acts and frauds of a steamboat company on the same voyage ; ^ where the owner of stereotype plates of a book alleged a breach of defendant's contract to furnish paper and print a book therefrom, and also injuries negligentl}' done to the plates themselves while in the defendant's possession ; ^ de- taining the plaintiff's chattels, and wrongfully and negligently injuring them while thus detained;^ an action by a judgment creditor against his debtor and another to recover back money wrongfully paid as usury to such person by the debtor, to compel this assignee to account for actual securities placed in his hands by the debtor, and to set aside certain transfers of personal prop- erty made by the debtor ;^ an action in which the plaintiff sought to recover the agreed price in a contract for building a house, damages caused by the defendant's delay to have the premises ready in time for the work to go on, and the price of extra work and materials, and finally to set aside, on the ground of fraud, an award made in reference to certain of the matters in dispute ;'' an action to recover damages for the conversion of goods by the defendant, a common carrier, and to recover back money mis- ^ Armstrong; v. Hinds, 8 Minn. 254. * Badger i'. Benedict, 4 Abb. Pr. 176. See Larned v. Hudson, 57 N. Y. 151. 5 gmiti, j.. Orser, 4-3 Barb. 187. ■^ Montgomery v. McEwcn, 7 Minn. '' Palen v. Bushnell, 46 Barb. 24. It 351. migbt, perliaps, liave been better to say ^ Jones V. Steamboat Cortes, 17 Cal. tbat tbere was but one cause of action. 487, 407. See, bowever, Grant i;. Mc- 7 gee v. Partridge, 2 Duer, 463. Carty, 38 Iowa, 4G8. JOINDER OF CAUSES OF ACTION. 619 takenly paid as freight for the same goods ; ^ where lands incum- bered by an outstanding mortgage had been conveyed by a warranty deed, and the grantee therein brought an action against the grantor and the holder of the mortgage, and prayed a judg- ment fixing the amount due upon the mortgage, if any, and directing the same to be delivered up and cancelled upon payment by the plaintiff of the amount so ascertained, and ordering the grantor thereupon to repay that sum to the plaintiff;^ action against a constable and the sureties upon his official bond, alleg- ing the issue of an execution to such officer and a levy by him upon property of the judgment debtor sufficient to have made the amount due, a neglect to return the execution, the receipt and collection of the money, and refusal or neglect to pay over the same to the plaintiff; ^ where the plaintiff alleged that he had placed ilOO in the defendant's hands for the purpose of entering an eighty-acre lot in the plaintiff's name, at the expected price of $1.25 per acre ; that the defendant thereupon entered the lot in his own name, but paid therefor only 810, and converted the residue of the mone^ to his own use ; and demanded judgment for the $90 and interest, and also for a conve3'ance of the land to himself ; * an action to recover a specified sum due upon a written contract, and damages for the breach of certain covenants in the same instrument, and also to compel the specific performance of a covenant to convey land contained therein ;^ where one cause of action was for the defendant's deceit practised in the sale of oil leases to the plaintiff, and the other was for money had and received, being the price paid by the plaintiff in the same sales.^ The owner in fee of land having been induced by the defendant's fraud to convey the same by a deed in which the wife joined, the 1 Adams v. Bissell, 28 Barb. 382, 385. had and received by tbe defendant " as 2 Wandle v. Turney, 5 Duer, 661. Al- above stated." This, it was held, incor- thou^li Bosworth J. says the causes of porated into the latter counts the aver- action all arose out of the same transac- nients of the former, and showed that all tion, yet, upon the principles already arose out of the same transaction. See stated in the text, there was actually but also Gertler v. Linscott, '26 Minn. 82 (if a one cause of action. cause of action on contract and one for a ' Moore v. Smith, 10 How. Pr. 361. tort arise out of the same transaction, or ♦ Callaghan i-. McMahan, 33 Mo. 111. out of a series of connected transactions, 6 Gray v. Dougherty, 25 Cal. 266. they may be joined) ; Barr r. Shaw, 10 6 Woodbury v. Delap, 1 N. Y. S. C. Ilun, 580 (causes of action for different 20; 8. c. 65 Barb. 501. The first count torts may arise out of tlie same transac- set out the sale and the deceit and the tion, and be joined); Young v. Young, damages ; the others, for money had and 81 N. C. 91. received, alleged that the money had been 520 CIVIL KEMEDIES. grantor and his wife brought a joint action to recover damages for the deceit. The New York Court of Appeals held that the husband had a cause of action for the loss of the land which he owned in fee ; tliat the wife had a cause of action for the loss of her inchoate dower right; that they could recover one joint judg- ment as a satisfaction for both claims ; and, finally, that the two causes of action were properly united, since they arose out of the same transaction, — namely, the bargaining and sale of the prem- ises and the fraudulent representations made therein by the defendant. 1 Several of the cases cited in the last preceding sub- division of this section might perhaps be regarded as instances of causes of action arising out of the same transaction ; they cer- tainly would be so if they were to be considered as embracing more than one cause of action.^ § 477. The following are examples of causes of action con- tained in the same complaint or petition which have been held not to arise out of the same transaction : for an assault and bat- tery and for a slander, although committed simultaneously;^ for a breach of a warranty of soundness given on the sale of a horse, and for fraudulent representations as to the soundness made at the same sale : ^ a claim by the plaintiffs as next of kin and lega- tees of A., two of the defendants being A.'s executors, and a claim by them as legatees of B., one of the defendants being B.'s executor, the action being for an account and settlement of both estates.^ 1 Siniar v. Canaday, 53 N. Y. 298, 305, Phillips v. Gorham, 17 N. Y. 270; Laub per Folgcr J. The complaint was not v. Buckmiller, 17 N. Y. 620 • N. Y. Ice framed at all upon the theory which the Co. v. N. W. Ins. Co., 23 N. Y. 357 • court adopted in making this decision. It Lattin v. McCarty, 41 N. Y. 107 • Howe did not purport to set forth two separate v. Peckliam, 10 Barb. 656; Blake v. Van causes of action ; it was a joint complaint, Tilhorg, 21 Wis. 672; Fish v. Berkey and alleged a joint cause of action in favor 10 Minn. 199. of the plaintiffs, and demanded a single » Anderson v. Hill, 53 Barb. 2-38, 245 joint judgment. The peculiar feature of Dragoo v. Levi, 2 Duv. (Ky.) 520. But the decision is that which sustains a single per contra, see Harris v. Avery, 5 Kans judgment for one sum as damages in sat- 146 ; Brewer v. Temple, 15 How. Pr. 286. isfaction of both demands, although the ■• Sweet v. Ingerson, 12 How. Pr. 331 case is expressly based upon the doctrine In accordance with the principles main that there were separate and distinct tained in the te.xt, the two causes of action causes of action. Assuming that the in this case clearly arose out of the same court was correct in this position, they transaction ; indeed, a more illustrative plainly both arose out of the same trans- example could hardly be found among action. purely ler/al actions. 2 See supra, §§ 459, 400, and especially 6 Viall v. Mott, 37 Barb. 208. The Bidwell V. Astor Ins. Co., 10 N. Y. 263; Supreme Court of North Carolina, in a JOINDER OF CAUSES OF ACTION. 521 § 478. When the plaintiff unites two causes of action which can only be joined because they arise out of the same transac- tion, or out of transactions connected with the same subject of action, the facts showing such common origin or connection must be averred, so that the court may see whether the joinder is proper. A mere general allegation that the causes of action all arose out of the same transaction is of no avail, and would be surplusage. 1 V. Instances in which the proper Joinder of Causes of Action is connected with the proper Joinder of Defendants ; Discussion of the provision that all the Causes of Action must affect all of the parties. § 479. Questions relating to the uniting of causes of action may be presented in two forms: In whatever one of the enumer- ated classes the}' fall they may (1) be against the single defend- ant, or the several defendants all equally liable, — perhaps jointly liable, — in which case the inquiry has to do solely with the joinder of the causes of action themselves, and is not concerned with the joinder of the defendants ; or (2) they may be against several defendants unequally and differently liable, one cause of action affecting a portion of the defendants more directly and substantially than it does others. In such case the inquiry has to do with the joinder of the defendants as well as with the union of the causes of action. I shall, in the present subdivision, ex- amine the latter of these cases. It is required by all the codes as a prerequisite to the uniting of different causes of action, that, notwithstanding they may all belong to the same class, they must affect all the parties to the action. The only exception men- tioned in any statute is the action to foreclose a mortgage.^ § 480. While the causes of action thus united must affect all very recent case, seems to deny any opera- the section. See N. C. Land Co. v, tive force whatsoever to tlie first clause Beatty, 69 N. C. 329, 334. of the section under consideration, which, ^ Flynn v. Bailey, 50 Barb. 73. See as it occurs in the code of tiiat State, is Woodbury v. Delap, 1 N. Y. S. C. 20 ; 66 identical with the one given in the text. Barb. 501. Although the language used by the court ^ 'f ],is exception, in fact, confounds is only a dictum, it is a strong expression " relief" with " cause of action." It sim- of opinion that no causes of action can be ply permits defendants to be joined against united by reason of that particular pro- whom some special relief is demanded, and vision unless they are embraced within is therefore entirely unnecessary. In every some of the other classes mentioned by such suit there is only one cause of action, 522 CIVIL REMEDIES. of the parties, it is not necessary that they should affect them all equally or in the same manner.^ If equality and uniformity were required, a large part of the equity jurisdiction would be swept away at one blow ; for it is the distinguishing feature of that sys- tem that all persons having any interest in the subject-matter of the controversy or in the relief granted should be made parties, however various and unequal their interests may be. Indeed, equality of right or of liability was not essential in all common- law actions. It was only when the proceeding was in form joint that this equalit}^ was indispensable according to legal concep- tions. The provision of the codes has not changed any of these former doctrines ; it simply enacts in one statutory and compre- hensive form the principle which controlled the courts, both of law and equit}^ under the former practice. It leaves an equita- ble action to be governed by the same rules as to parties which controlled it when equity was a distinct department, and it ex- tends the theory at least to legal actions as well. The practical effect of this clause in the statute will be best learned from an examination of the cases in which it has been applied, and from the judicial construction which has been thereby put upon it. Those which are quoted first in order pronounce against the pro- priet}^ of the union made by the plaintiff, because the causes of action did not affect all the parties. § 481. The owner of a tract of land had made O. his agent for the purpose of selling it, and O. had sold the land to S., who also stood in a fiduciary relation to the owner, and S. had conveyed portions of the land to different purchasers. The original owner thereupon brought an action against O. and S., charging fraud and a violation of their fiduciary duty against both. The com- plaint demanded a judgment of damages against O. for his deceit and against S. an account and payment of all the proceeds and profits that he had or might have made from his own sales, and a reconveyance of the portion yet remaining unsold. The New unless a common-law action on the note Cohle, 76 N. C. 391 ; Mendenhall v. Wil- or bond is combined with the foreclosure, son, 54 Iowa, 589 ; Tliorpe v. Dickey, 51 1 Vermeule v. Beck, 15 IIow. Pr. 333. id. 076; Cogswell v. Murphy, 46 id. 44; The following cases furnish illustrations Addicker i-. Schrubhe, 45 id. 315; Ilack- of the questions discussed in this and ett v. Carter, 38 Wis. 394 ; Heath v. the succeeding paragraphs. Sclmilzer y. Silverthorn Min. Co., 39 id. 146; Green Cohen, 7 Hun, 665; Burton i;. Speis, 5 t;. Nunneniacker, 36 id. 50; Lull v. Fox, Hun, GO; Nichols v. Drew, 19 id. 490; &c. Co., 19 id. 101; Arimond v. Greeu Cook V. Horwitz, 10 id. 580 ; Brown v. Bay, &c. Co., 31 id. 316. JOINDER OF CAUSES OF ACTION, 523 York Court of Appeals held that the causes of action were im- properly united ; and, as its opinion is instructive, I quote from it at some length. " The plaintiff has elected to regard S. as his trustee, and the complaint as to him and the decree proceed on this basis. The plaintiff therefore elects to affirm the sale as to S. He cannot una fiatu affirm it as to him, and disaffirm it as to the defendant O. It is difficult to see how under the provision of § 167 of the code these causes of action may be united in the same comijlaint. Although it may be said that botli causes of action arise out of the same transaction, namely, the sale of the plaintiff's land to the defendant S., yet the cause of action against O. is for an injury to the plaintiff's property, while that against S. is a claim against him as a trustee by operation of law. The causes of action joined in the complaint do not affect both of the parties defendant. O. is not affected b}^ nor in any way reponsi- ble for S.'s acts as plaintiff's trustee, and the complaint does not profess to make him liable therefor. So S. is not sought to be made responsible for the fraudulent acts of O. On the plaintiff's own showing, he has separate and distinct causes of action against each of the defendants which cannot be joined under the code." ^ § 482. 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 ; ^ 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 enfoice the demand against the wife's separate estate ; * where the plaintiff's agent, with whom certain securities had been de- posited, 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 1 Gardner v. Ogden, 22 N. Y. 327, 340, And see Dailey v. Houston, 58 Mo. 361, per Davies J. 366. 2 Barnes v. Smith, 16 Abb. Pr. 420. * Palen v. Lent, 5 Bosw. 713. 8 Malone v. StilweU, 15 Abb. Pr. 421. » Lexington, &c. R. R. v. Goodman, 15 524 CIVIL REMEDIES. tenant for life and the occupant to recover damages for injuries done by them to the land, the complaint containing 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 alreadj' 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 con- structed 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;^ 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 loanJ § 483. The causes of action must not only affect all the defend- ants, but all the plaintiffs as well, the provision of the codes ap- plying equally to both parties.^ Thus an action by three persons How. Pr. 85. This was a special term against tlie sureties on an administrator's decision, and is therefore not entitled to bond for a breach thereof, and af^ainst the much autiiority. The case is clearly administratorhimself for a violation of his in principle identical with the ordinary trust. Ilowse v. Moody, 14 Fla. 59, 64, creditor's suit. 65. 1 Rodgers i'. Rodgers, 11 Barb. 595. "^ Farmers' Bank v. Bayliss, 41 Mo. 2 Wells V. Jewett, 11 How. Pr. 242. 274. And see Lane ;■. State, 27 Ind. 108. 8 Trowbridge v. Forepaugh, 14 Minn. 8 Where a husband and wife sued for 133. an assault and battery upon the wife, and * Lull V. Fox & Wis. Imp. Co., 19 the petition set forth a claim for the in- Wis. 100, 102. juries sustained by the wife, for which 6 Sanders ?;. Clason, 13 Minn. 379. See both must sue, and also a claim for the also cases in regard to guarantors, supra, loss of her services, for which he alone § 306. must sue, two causes of action were held *" State I'. Kruttscbnitt, 4 Nev. 178; to be improperly united. Dailey i;. IIous- Ghirardelli v. Bourland, 32 Cal. 585. And ton, 58 Mo. 351, 306. JOINDER OF CAUSES OF ACTION. 525 having entirely distinct and separate claims against the defend- ant 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.^ In an action to recover possession of land brought by two plaintiffs, the complaint contained 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 eject- ment, and afterwards of uniting different plaintiffs who claim under distinct and hostile titles, has been abolished by tlie 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." ^ § 484. Causes of action to recover possession of different chat- tels from different defendants cannot be joined in the same suit.* Nor can a cause of action against a trustee to compel the convey- ance of the trust property be united witli 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 1 Harsh v. Morgan, 1 Kans. 293, 299. recover possession of one parcel of land 2 Schultz y. Winter, 7 Kev. 130. For with damages for withholding the same, contrary cases, see supra, § 269 (n.) 1. it has been held, cannot be joined with a 3 Hubbell V. Lerch, 62 Barb. 295, 297, similar cause of action in respect to an- per T. A. Johnson J. ; St. John v. Pierce, otlier parcel, sed qu. Holmes v. Williams, 22 Barb. 362 ; Hubbell v. Lerch, 58 N. Y. 16 Minn. 164, 169 ; nor can a claim for a 237, 241. specific performance against A. be joined * Robinson i'. Rice, 20 Mo. 229. with a claim to recover possession of land 5 McLauglilin v. McLaughlin, 16 Mo. against B., Fagan v. Barnes, 14 Fla. 53, 242. Tiie following cases are additional 56 ; nor can a cause of action for fraud illustrations of the rule that the causes of against one defendant be united with a action must affect all the parties. Chee- cause of action upon contract against an- ly's Administrator v. Wells, 33 Mo. 106 ; other, Van Liew v. Johnson, 6N. Y. S. C. Liney v. Martin, 29 Mo. 28; Stalcup v. 648; N. C. Land Co. v. Beatty, 69 N. C. Garner, 26 Mo. 72. A cause of action to 329. 526 CIVIL REMEDIES. 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 claim is against the executor or administrator personally, and not against the estate, and the judgment must be de bonis projyriis. 3. That these different causes of action cannot be united in the same complaint," ^ § 485. 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 ; ^ 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,^ § 486. The questions under consideration, in their application to equitable actions were thoroughl}"- 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 1 Ferrin v. M3'rick, 41 N. Y. .315, 319- company for the same demand, botli being 322, per Hunt C.J. ; Austin v. Munro, 47 based upon a statute. Wiles v. Suydam, N. Y. 300, 304, 3G5, per Allen J. ; Austin N. Y. S. C. 292, citing DuranL y.'Oard- v. Munro, 4 Lans. 67. See, per contra, ner, 10 Abb. Pr. 445; 19 How. Pr. 94 ; Tradesman's IJank v. McFeely, 61 Barb. Sipperly v. Troy & B. K. R., 9 How. Pr. 522, decided in the face of Ferrin v. My- 83 ; Dickens v. N. Y. Cent. R. R., 13 How. rick. But a claim against the defendant Pr. 228. as a stockholder, to recover a demand due ^ Lindley v. Cross, 31 Ind. 106. from the corporation, may be joined with 3 J'rank f. Kessler, 30 Ind. 8. a claim against him as a trustee of the * Wilson v. Castro, 31 Cal. 420. JOINDER OF CAUSES OF ACTION. 527 is said to be * multifarious ' when distinct and independent mat- ters are joined therein, — as, for example, the uniting of several matters, perfectly distinct and unconnected, against one defend- ant, or the demand of several matters of a distinct and independ- ent nature, against several defendants. But the case of each particular defendant must be entirely distinct and independent from that of the other defendants, or the objection cannot pre- vail ; for, as said by Judge Stor}^ ' The case of one 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 por- tion only of the case stated. In the latter case the objection of multifariousness could not be allowed to prevail. So it is not indispensable that all the parties should have an interest in all the matters contained in the suit ; it will be sufficient if each party has an interest in some matter in the suit, and they are connected with the others.' ^ The same author lays it down that ' To support the objection of multifariousness because the bill con- tains different causes of suit against the same person, two things must concur : first, the different grounds of suit must be wholly distinct ; secondly, each ground must be sufficient as stated to sustain a bill ; if the grounds be not entirely distinct and uncon- nected, if they arise out of one and the 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, the ob- jection does not apply.' ^ When the point in issue is a matter of common interest among all the parties to the suit, though the interests of the several defendants are otherwise unconnected, still they may be joined. In Salvidge v. Hyde,^ Sir John Leach V. C. said : ' If the objects of the suit are single, but it happens that different persons have separate interests in distinct questions which arise out of the single object, it necessarily happens that such different persons must be brought before the court in order that the suit may conclude the whole subject.' In Boyd v. Ho}' t,^ Mr. Chancellor Walworth laid down the same doctrine in sub- stantially the language used by Sir John Leach in Salvidge v. Hyde ; and Mr. Daniel, in his excellent work,^ saj's, in reference to the doctrine held in Salvidge v. Hyde, there is no doubt that 1 Story's Eq. PI. §§ 271, 271 a. * Boyd v. Hoyt, 5 Paige, 78. 2 Ibid. § 271 6. 6 1 Daniell's Ch. PI. p. 386. 8 Salvidge U.Hyde, 6 Madd.Ch.R. 138. 528 CIVIL KEMEDIES. the learned judge stated the principle correctly, though in the application of it he went, in the opinion of Lord Eldon, too far.^ In Whaley v. Dawson,^ Lord Redesdale observed that in the English cases, when demurrers, because the plaintiff demanded in his bill matters of distinct natures against several defendants not connected in interest, have been overruled, there has been a general right in the plaintiff covering the whole case, although the rights of the defendants may have been distinct. In such cases the court proceeds on the ground of preventing multiplicity of suits, when one general right is claimed by the plaintiff against all the defendants ; and so in Dimmock v. Bixby,^ the court held that when one general right is claimed by the plaintiff, although the defendants may have separate and distinct rights, the bill of complaint is not multifarious. In the elaborate case of Campbell V. Mackay,^ Lord Cottenham held that when the plaintiffs have a common interest against all the defendants in a suit, as to one or more of the questions raised by it, so as to make them all neces- sary parties for the purpose of enforcing that common interest, the circumstance of the defendants being subject to distinct lia- bilities in respect to different branches of the subject-matter Avill not render the bill multifarious. In the same case his lordship observed that it was utterly impossible upon the authorities to lay down any rule or abstract proposition as to what constitutes multifariousness which can be made universally applicable. The only way, he said, of reconciling the authorities upon the subject, is by adverting to the fact, that although the books speak gen- erally of demurrers for multifariousness, yet in truth such de- murrers may be divided into two kinds, one of which, properly speaking, is on account of a misjoinder of causes of action ; that is to say, uniting claims of so different a character that the court will not permit them to be litigated in one record, even though the plaintiff and defendants may be parties to the whole transac- tions which form the subject of the suit. The otiier of which, as applied to a bill, is that a party is brought as a defendant upon a record, with a large portion of which, and with the case made by it, he has no connection whatever. A demurrer for such a cause is an objection that the complaint sets forth matters which 1 1 Jac. R. 151. 8 Dimmock v. Bixby, 20 Pick. 368. 2 Whaley v. Dawson, Z Sch. & Lef. * Campbell v. Mackay, 1 Myl. & Cr 370. 603. JOINDER OF CAUSES OF ACTION. 529 are multifarious ; and the real cause of objection is, as illustrated by the old form of demurrer, that it puts the parties to great and useless expense, — an objection which has no application in a case of mere misjoinder of parties. Upon this subject Judge Story says : ' In the former class of cases, where there is a joinder of distinct claims between the same parties, it has never been held as a distinct proposition that they cannot be united, and that the bill is of course demurrable for that cause alone, not- withstanding the claims are of a similar nature, involving similar principles and results, and may therefore without inconvenience be heard and adjudged together. If that proposition were to be established and carried to its full extent, it would go to prevent the uniting of several demands in one bill, although the parties were liable in respect to each, and the same parties were inter- ested in the property which may be the subject of each. Such a rule, if established in equity, would be very mischievous and op- pressive in practice, and no possible advantage could be gained by it.' ^ He states in conclusion the result of the principles of the cases to be,^ ' That where there is a common liability in the de- fendants, and a common interest in the plaintiffs, different claims to property, as least if the subjects are such as may without in- convenience be joined, may be united in one and the same suit ; and further, that where the interests of the plaintiffs are the same, although the defendants may not have a co-extensive com- mon interest, but their interests may be derived under different instruments, if the general objects of the bill will be promoted by their being united in a single suit, the court will not hesitate to sustain the bill against all of them.' "^ § 487. The observations of Mr. Calvert upon- the distinction between "subject" and "object" of the action, and upon the sense in which the former term is used in the common method of stating the general rules of 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 dis- cussed as to the particular language of the codes under con- sideration in the present section. After laying down the equity rule as to parties in the customary form adopted by several emi- nent judges, in which the necessity or propriety of their being i Story's Eq. PI. §§ 631, 532. » Wilson v. Castro, 31 Cal. 420, 426- 2 Ibid. §§ 533, 534. 431, per Currey J. 84 530 CIYIL REMEDIES. joined is made to depend upon their interest in the " subject " of the suit,^ he proceeds : ^ " The expression ' subject of suit ' may mean one of two things, — either the fund or estate respecting wl)ich the question at issue has arisen, or else that question itself. For instance, in a foreclosure 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 judg- ments that in the cases quoted below. Lord Eldon and Sir Wil- liam Grant used the phrase in the first sense, and adds : " If the words 'subject of suit' were taken in that very extensive mean- ing 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 state- ment 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 neces- sary nor proper parties.^ § 488. 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 inter- ested in the question must be parties to a suit instituted in a court of equity."^ He thus sums up the matter: "Not all con- 1 See Lord Redesdale, Plead. 164, 170; - Calvert on Parties, p. 5. Lord Hardwicke in Poorr. Clarke, 2 Atk. ^ Ibid. pp. 6, 7, 8. 515; Lord Thurlow in Anon., 1 Ves. 29; * Small v. Atwood, Younge, 458. The Sir William Grant in Palk v. Clinton, 12 other dicta cited by Mr. Calvert are Lord Ves. 58; Wiikins f. Fry, 1 Meriv. 262; Loughborough in King ?'. Martin, 2 Ves. Lord Eldon in Cockburn i\ Thompson, 10 043; Lord Eldon in Fenton v. Hughes, 7 Ves. 325 ; Calvert on Parties, pp. 3, 4. Ves. 288; Sir T. Plumer in Whitworthu. JOINDER OF CAUSES OF ACTION-. 531 cerned in the subject-matter respecting which a thing is demanded, but all concerned in the very thing ivhich is demanded^ the matter petitioned for in the prayer of the hill, in other words, the object of suit, should be made parties in equity. Upon a combination of all these authorities, it is proposed 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." ^ § 489. This theory is open to a very plain criticism. Assuming that " subject of the suit " may be used in the two senses men- tioned 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 " sub- ject of the suit " used in its secondary meaning. Taking his illustration of the foreclosure suit, the " subject " may be the mortgage 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 ver}^ large num- ber 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 Davis, 1 Ves. & B. 550 ; Sir John Leach in in Poore v. Clarke, 2 Atk. 515 ; Com. Dig. Smith V. Snow, 3 Madd. R. 10 ; Lloyd v. Tit. Chan., E. 2. Lander, 5 Madd. R. 289 ; Lord Hardwicke ^ Calvert, pp. 10, 11. 532 CIVIL REMEDIES. 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. § 490. Let us apply Mr. Calvert's analysis of the term to the language found in the codes. In equitable actions there is gen- erally, 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 re- lation 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 onlj' be conceived of in the second sense which has been attributed to it, and denotes the totality of questions at issue between the par- ties, 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 capa- ble 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. § 491. 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 JOINDER OF CAUSES OF ACTION. 533 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. § 492. All causes of action arising out of contract may be united, and this includes, of course, implied as well as express con- tracts. 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 per- sonal, 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 an- nuity. 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.^ § 493. 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. When this is permit- ted, a cause of action of such a nature in which the tort has been waived and the claim placed upon the footing of an implied prom- ise may be joined with causes of action arising out of an 3^ other form of contract, express or implied ; as, for example, where the first cause of action was for goods sold and delivered, and the second averred that the defendant had wrongfully taken the goods of the plaintiff, had sold them and received their price, and de- manded judgment for this sum so retained by him.^ It has been recently held by the Supreme Court in New York, that where the plaintiff seeks to unite a cause of action merely upon contract with another cause of action originally for a tort, but in which the tort may be waived and the liability treated as springing from an im- plied promise, the pleading must show in some direct manner that 1 Gridley v. Gridley, 24 N. Y. l.SO. 2 Hawk i'. Thorne, 54 Barb. 164; See also Quellen v. Arnold, 12 Nev. 234 ; Leach v. Leach, 2 N. Y. S. C. 657. See Sullivan t-. The Sullivan Co., 14 S. C. also Freer r. Denton, 61 N. Y. 492 ; Logan 494 ; South Side Ass'n v. Cutler, &c. Co., v. Wallis, 76 N. C. 416. 64 Ind. 560. 534 CIVIL REMEDIES. the tort is waived, and that the claim is upon a promise ; and to this end the pkintiff must not only allege the facts as they occurred, but must aver a promise to have been made by the defendant, in the same manner as an action of assumpsit was distinguished under the former system.^ A complaint contained three counts. The first alleged a sale by the defendants of cer- tain county warrants drawn in their favor as payees, and facts constituting an implied promise or guaranty that these instru- ments were legal and genuine, but that they were not genuine, and had been adjudged invalid as against the county in an action brought upon them ; the second sought to charge the defendants as indorscrs, treating the instruments as negotiable notes ; the third was for money had and received. These causes of action were held to be properly united, since they all arose out of contract.^ § 494. A claim to recover possession of land, a claim to recover damages for its detention or wrongful taking, and a claim for the rents and profits thereof during the defendant's occupancy, may all or any of them be united in one action : ^ but the plaintiff is not compelled to do so; he may sue separately on each.* An action to compel the specific performance of a contract to convey land is, within the meaning of the statute, an action to recover possession of lands, and may be united with a cause of action for damages on account of defendant's delay in performing the contract.^ In like manner, a claim to recover possession of chattels may be united with a claim for damages for their taking or detention.^ 1 Booth V. Farmers' and Mech. Bank, son, 57 N. Y. 151. It lias been held that 1 N. Y. S. C. 45. a claim to recover possession of one par- 2 Keller v. Hicks, 22 Cal. 457. eel of land cannot be joined with a similar 3 Vandevoort v. Gould, 36 N. Y. 639, claim in respect to another and distinct 645 ; Livingston v. Tanner, 12 Barb. 481 ; parcel. Holmes v. Williams, 1(5 Minn. Holmes >: Davis, 21 Barb. 265 ; 19 N. Y. 164, 169. See also Merrill v. Dcering, 22 488 ; Tompkins v. White, 8 How. Pr. 520 ; Minn. 376 ; Lord v. Peering, 24 id. 110 ; Armstrong v. Hinds, 8 Minn. 254, 256 ; Hackett v. Carter, 38 Wis. 394 ; Spalir v. Walker i;. Mitchell, 18 B. Mon. 541 ; Burr Nicklaus, 51 Ind. 221; Boltorf v. Wise, V. Woodrow, 1 Bush (Ky.), 602 ; Sullivan 53 id. 32. r. Davis, 4 Cal. 291. A claim to recover •* Ibid. land, with damages for withholding the 5 Worrall v. Mnnn, 38 N. Y. 137. A same, and a claim of the rents and profits demand for a specific performance against for its use, are distinct causes of action, A. cannot be united with a demand to and evidence to prove the latter is iiiad- recover possession against B. Fagan v. missil)le under a complaint which does Barnes, 14 Fla. 58, 56. not contain such cause of action, butsini- ^ Pharis v. Carver, 13 B. Mon. 236. ply alleges the former. Larued v. Hud- JOINDER OF CAUSES OF ACTION. 535 § 495. Causes of action for injuries to property form a distinct class, and the generality of this language permits the union of claims arising from injuries of all kinds, whether with or without force, whether direct or consequential, and whether to real or to personal property. Singularly enough, injuries to the person are placed in the same group in most of the States, rather than in a class by themselves, or with injuries to character. The following are examples of causes of action arising from injuries to property which have been held properly united in a single suit : in an ac- tion against a railroad company (1) for damages resulting from the unlawful throwing down the fences on plaintiff's farm, whereby cattle entered and destroyed the growing crops ; (2) for damages caused by water thrown on to the farm by means of an embank- ment ; (3) for damages from earth piled upon the farm, obstructing the passage of teams and the free use of the land ; (4) for damages occasioned by the killing of cattle by means of passing engines ;i an action by a mine-owner, alleging (1) injuries caused by the bursting of defendant's dam, negligently constructed, whereby gold-bearing earth was washed away and (2) damages resulting from the delay and hindrance in working the mine ; ^ where the complaint contained two counts, the first being for trespasses done to the land prior to its conveyance to the plaintiff, the claim having been assigned to him, and the second alleged that the plaintiff was owner and in possession of the land, that the defend- ants were about to enter upon the same and quarry and carry away minerals therefrom, and prayed an injunction restraining the trespasses, the two causes of action were held to be properly joined, although one was legal and the other equitable.^ On the same principle, in a suit to recover possession of land, a separate cause of action may be added to restrain a threatened trespass and commission of waste.* A cause of action for deceit practised in the sale of chattels may be joined with one for the unlawful taking and conversion of other goods ; the claim of damages for the fraud in such a case arises from an "injury to property within the meaning of the codes.^ 1 Clark's Adm'rr. Han. & St. Jo. E. R., per Shapter J. The opinion in tliis case 36 Mo. 202 ; and see Tendesen v. Mar- is instructive. shall, 3 Cal. 440. * Natoma Water Co. v. Clarkin, 14 2 Fraler v. Sears Union Water Co., 12 Cal. 544. Cal. 555. * Cleveland v. Barrows, 59 Barb. 364, 3 More V. Massini, 32 Cal. 590, 595, 374, 375, per T. A. Johnson J. 536 CIVIL REMEDIES. § 496. Within the class of " injuries to character " fall not only- actions for libel and for slander, but those for malicious prosecu- tion ; the gist of the latter, according to the old authorities, being the wrong done to the plaintiff's reputation, A cause of action for malicious prosecution may therefore be joined with one for libel or slander, or both.^ § 497. The following are some special cases. In Wisconsin a complaint was sustained in an action by a creditor, one count of which set up a cause of action against a bank to recover certain propert}' or its value, and another count alleged a cause of action against delinquent stockholders of the corporation.^ Where a complaint contained two causes of action, the first to enforce an implied trust alleged to have arisen in favor of the plaintiff on the conveyance of lands from himself to the defendant, and the second to enforce a vendor's lien on the same lands, they were held to be properly united, since both arose out of trusts, the one by virtue of a contract, and the other by operation of law.^ In another equitable suit the joinder of four causes of action was sustained, where the first was to reform a certain trust deed by inserting the name of a trustee, and to foreclose it when reformed, the second was to foreclose a mortgage upon the same land, while the third and fourth were to enforce certain charges which were liens on the land, and which the plauitiff had been compelled to pay in order to protect his security.^ § 498. All of the foregoing cases were decided under State codes which contain substantially the same provisions and the same division into classes. In Indiana and Iowa, it will be remem- bered, the corresponding sections of the statute are peculiar, and more latitude is permitted, especially in the latter State, in the joinder of unlike causes of action. As in Iowa, all legal or equitable causes of action may be united, a claim arising upon contract may be included in the same petition with one for dam- ages resulting from any kind of tort.^ And where twenty-two 1 Martin v. Mattison, 8 Abb. Pr. 3; a form of security used in several of the Hull V. Vreelantl, 18 Abb. Pr. 182; Wat- States instead of a mortgage. See also son V. IIazz;nd, 3 Code Rep. 218; Shore Williams r. Peabody, 8 Hun, 271 ; Hay V. Smith, 15 Ohio St. 173. v. Hay, 13 Id. 315. 2 Seaman v. Goodnow, 20 Wis. 27, ^ Turner i'. First National Bank, 26 sed qri. Iowa, 5()2. See also Mendenhall i'. Wil- 8 Burt r. Wilson, 28 Cal. 6.32. son, 54 Iowa, 589 (trespass and contract) ; * Burnside v. Wayman, 49 Mo. 356. Thorpe v. Dickey, 51 id. 670 ; Stevens v. The " trust deed " lueulioued was, in fact, Chance, 47 id. 602. JOINDER OF CAUSES OF ACTION. 537 different parcels of land belonging to the same owners had been conveyed to the plaintiff by as many separate tax deeds, he was permitted to foreclose all these deeds, and thus cut off the owner's right of redemption in one action.^ In construing the sections of the Iowa code which give the trial court a discretion in reference to the joinder of unlike causes of action, and which authorize it to compel an election, or to strike out on the defendant's motion, it is held that the provision for compelling the plaintiff to elect ap- plies only to a case where the various causes of action set forth in the petition are merely different modes of stating one and the same demand, and the defendant must file an affidavit showing this fact as the basis of his motion ; but the court may, on defend- ant's motion, strike out a cause of action which it deems impos- sible or inconvenient to try with the others, but in no case is a demurrer the proper remedy .^ § 499. In Indiana, a cause of action by a wife for an absolute divorce was held properly joined with a cause of action to compel the specific performance of an agreement to convey certain lands to her made by the husband at the time of their separation.^ In California, by virtue of the provisions of a special statute, a cause of action against a sheriff to recover damages for his neglect to execute and return process may be joined with a claim to re- cover a statutory penalty for the failure in his official duty.^ § 500. I shall conclude this section with a classified series of decisions which will illustrate the improper union of different causes of action. Except in Iowa, the rule is universal that a cause of action upon contract cannot be joined with one to recover damages for a tort, unless both should arise out of the same transaction, and thus fall within the inclusive terras of the first class. The following are examples merely of this ele- mentary rule : A count against the defendant for his wrongful acts ^ Byington v. Woods, 13 Iowa, 17, 19. having been made to strike out, the ir- See, per contra, Turner v. Duchman, 17 regularity was thereby waived. Grant v. Wis. 500. McCarty, 38 Iowa, 468 ; an action by two 2 Reed v. Howe, 28 Iowa, 250, 252 ; persons not partners for a slander of each, Iowa, &c. R. R. V. Perkins, 28 Iowa, 281. but on the trial the case was severed, and In the following cases, the causes of the trial proceeded on behalf of one alone, action were held to have been improperly and this was held proper. Hinkle v. joined : an action by two plaintiffs for the Davenport, 88 Iowa, 355. destruction of chattels owned by them ^ Fritz v. Fritz, 23 Ind. 388. jointly , and also for an assault and battery * Pearkes v. Freer, 9 Cal. 642. committed upon each ; but, no motion 538 CrV'IL REMEDIES, as president of a bank, and one against him as a stockholder in such bank to recover on its notes, were improperly embraced in the same complaint ; ^ also a claim against certain part owners of a vessel to recover her hire, which they had received, and one to restrain them from a threatened wrongful sale of the ship.^ It has been held that a demand arising from the breach of a war- ranty given upon the sale of chattels cannot be joined with one based upon the vendor's deceit practised in the same sale.^ Not- withstanding these decisions, it is impossible to conceive of two legal causes of action which more completely and accurately cor- respond to the language of the codes, as " arising out of the same transaction." The bargain between the parties is certainly a transaction ; certain language used by the seller may amount to a contract of warranty ; certain other language may be the false representations ; indeed, it is possible, and not at all unlikely, that the selfsame words spoken by the vendor might be at once the fraudulent representations and the promise, for language otherwise sufficient is none the less a promise because the person using it knowingly lied when he uttered it. To say that these two demands do not arise out of the same transaction is virtually to say that no two different legal claims ever can so arise. I can not regard these decisions, therefore, otherwise than mistaken. § 501. In an action against a railroad company, the complaint contained three counts ; the first for wrongfully carrying away and converting cattle ; the second for the same injury done to hogs ; and the third set up an agreement to transport cattle from a spe- cified place to another, and averred a breach thereof by means of a negligent omission whereby the plaintiff lost his cattle. On demurrer, it was said that the first two causes of action, being for torts, could be joined ; but the third was upon contract, and its union with the others was error.* The joinder of a count for the conversion of chattels with one for money had and received would be clearly wrong ; ^ and the same is true of any tort and 1 Butt V. Cameron, 53 Barb. 642 ; but v. Atlantic R. R., 78 id. 22 ; Keller v. see Wiles v. Suydam, G N. Y. S. C. 2'J2. Boatman, 49 Ind. 104. 2 Coster V. N. Y. & E. R. R., 3 Abb. < Colwell v. N. Y. & E. R. R., 9 How. Pr. 332. Pr.311 ; Iloagland v. Han. & St. Jo. R. R., ^ SprinRSteed v. Lawson, 14 Abb. Pr. 39 Mo. 451. 328 ; Ssveot v. Ingerson, 12 How. Pr. 331. 5 Cobb v. Dows, 9 Barb. 230, and cases See Gertler v. Linscott, 26 Minn. K2 ; in last note. Logan V. Wallis, 76 N. C. 41G; Doughty JOINDER OF CAUSES OF ACTIOX. 539 implied contract.^ It is doubtful whether a cause of action on contract and one for a tort to the person can be conceived of as arising out of the same transaction, so that they may be embraced in the same pleading. The attempt, however, has been made to unite a claim for the breach of a written contract to convey land with a cause of action for assault and battery committed by the defendant in forcibly taking the instrument from the plaintiff's possession, but it was unsuccessful.^ In like manner a cause of action against a lessee arising upon the lease cannot be joined with a claim for damages on account of injuries done to the property, unless, of course, the latter is embraced within some stipulation or covenant of the lease, so that it would in fact be a demand on the contract." It can make no difference with the rule that the tort is a fraud consisting in false statements or con- cealments. Thus, a complaint by an indorsee against his imme- diate indorser was held bad on demurrer, one count of which alleged the ordinary liability of defendant as indorser, and the other set up certain false representations as to the solvency of the maker, by which the plaintiff was induced to purchase the paper.* The rule, in short, applies to all cases of demands based upon a promise, express or implied, and claims based upon fraud, unless the tort may be waived, and the complaint be framed so as to present both causes of action as arising from contract.^ § 502. Another particular rule, which is but an application of the same doctrine, requires that the several causes of action against or for a given person should all affect him in the same capacity. In other words a demand for or against a party in his personal character cannot be united with another demand for or against him in a representative character as trustee, executor, administrator, receiver, and the like. The reason usually given for this rule when applied to defendants is, that the judgment upon one cause of action would be against the defendant per- sonally, to be made de bonis propriis, while the judgment upon 1 Hunter v. Powell, 15 How. Pr. 221. property thereon, cannot be joined. Keep 2 Ehle V. Haller, 6 Bosw. 661. v. Kaufman, 56 N. Y. 332. 8 Ederlin v. Judge, 36 Mo. 350. Con- * Jamison v. Coplier, 35 Mo. 483. versely, a claim of damages for the breach ^ j>„rkner v. Hart, Stanton's Code of the lessor's covenant of quiet enjoy- (Ky.) 60; Wilson v. Thompson, Ibid. 60; ment, and a claim of damages for a tres- Hubbell v. Meigs, 50 N. Y. 480, 487 ; pass in his wrongful entering upon the Booth i'. Farmers' and Mechanics' Bank, demised premises and injuring the lessee's 1 N. Y. S. C 45. 540 CIVIL REMEDIES. the other cause of action would be against him in his representa- tive or official capacity, and not perhaps to be made out of his own property ; as, for example, it might be made de bonis testatoris. This reasoning, borrowed from the old law, is a mere formula of words, for there is nothing in the nature of things which prevents such a double judgment. It is just as easy for such a judgment to be rendered in one action as it is for two distinct judgments to be granted in separate suits. The argument, however, like so much of so-called legal reasoning, still has convincing force with most of the courts, even while administering the reformed system. The following cases are given as illustrations of this doctrine, and in all of them the joinder was pronounced improper: A com- plaint on a partnership debt against the defendant as surviving partner, and against him in a separate count as executor of his deceased partner ; ^ against the defendant personally, and also as an executor or administrator ; ^ in a suit against an executor or administrator, a demand which existed against the deceased in his lifetime, and a different demand which arose from a promise made by the executor or administrator after the death, for as to the latter claim the defendant is personally liable.^ On the same principle a demand upon a contract between the plaintiff and the defendant, and a claim by the plaintiff as a shareholder in an unincorporated company against the defendant as president thereof, in respect of matters connected with the management of its affairs, were held to be improperly joined, since the defend- ant's liability, if any, in the latter cause of action existed against him as a trustee.* The plaintiff must also sue in the same capa- city in respect of all the causes of action. He cannot in one count sue as an executor or administrator, and in another sue in his personal character.^ In an action for malicious prosecution the complaint contained three counts : the first for the malicious prosecution of the plaintiff himself; the second for the same wrong done to his wife, she having been imprisoned ; and the 1 Landau v. Levy, 1 Abb. Pr. 376. See, however, Logan i-. Wallis, 76 N. C. 2 McMahon v. Allen, 8 Abb. Pr. 89. 416. 8 Ferrin v. Myrick. 41 N. Y. .315, 322 ; 5 Lucas v. N. Y. Cent. R. R., 21 Barb. Austin V. Munro, 47 N. Y. 360, 364 ; s. c. 246. But see Armstrong v. Hall, 17 How. 4 Lans. 67. See, however, Tradesman's Pr. 76, per C. L. Allen J., at Special Bank r. MoFeely, 61 Barb. 522, which Term, — a decision in direct opposition cannot be regarded as correct in the light to tiie rule stated in tlie text. Sec also of these other decisions. Quellen v. Arnold, 12 Nev. 234 ; Cincin- * Warth I'. Kadde, 18 Abb. Pr. 396. nati, &c. R. R. v. Chester, 57 Ind. 297. JOINDER OF CAUSES OF ACTION. 541 third for a like tort to his minor children. The only legal ground for recovery on the second and third of these counts was declared to be the loss of the wife's society in tlie one case, and of the children's services in the other ; as these injuries were personal to the plaintiff, they could be joined with the cause of action alleged in the first count for the tort directly to himself.^ § 503. The cases which follow do not admit of any classifica- tion, and several of them are of doubtful authority, even if not palpably erroneous. A cause of action for a limited divorce on the ground of cruelty, desertion, and the like, cannot be united with one for an absolute divorce on account of adultery, or of any other matter prescribed by statute. The two demands are simply incompatible." It was decided by one judge in New York that a demand to recover possession of a chattel cannot be united with a claim of damages for the taking, detaining, and converting the same. But as the codes expressly authorize the joinder of claims for the possession of chattels, and of damages for the withholding the same, this decision can hardly be sustained. " Withholding " clearly includes "detaining," and as it is not a technical term, it was doubtless intended to embrace " taking " and " conversion " as well.^ A cause of action to recover the possession of a certain parcel of land cannot, it has been said, be united with a demand of damages caused by the defendant's trespasses upon other lands of the plaintiff.* It has also been held that a claim to lecover possession of land, and a demand of damages for the defendant's tortious entry upon the same land, cannot be joined, because they are entirely inconsistent.^ 1 Rogers r. Smith, 17 Ind. 323. 5 Budd v. Bingham, 18 Barb. 494, per 2 Henry v. Henry, 17 Abb. Pr. 411 ; Brown J. It is difficult to perceive this Mcintosh r. Mclntosli, 12 How. Pr. 289. inconsistency. This and some similar de- It would be difficult to determine in what cisions are cited, not because they have class the action for either kind of divorce any authority or any value, but to corn- falls. One judge in the last case sug- plete the statement of the judicial inter- gested that limited divorce was a claim pretation put upon this provision of the for injury to the person. It seems to be statute. For further illustrations see cams omissus. See also Haskell v. Has- Buckmaster v. Kelley, 15 Fla. 180 ; Mat- kell, 54 Cal. 262 ; Uhl v. Uhl, 52 id. 250. tair v. Payne, 15 id. 682; Williams ?•. 3 Maxwell v. Farnani, 7 How. Pr. 236, Lowe, 4 Neb. 382; Paxton v. Wood, 77 per Harris J., at Special Term. N. C. 11 ; Seeber v. Allen, 13 S C. 317; * Hulce V. Thompson, 9 How. Pr. 113 ; Stevens v. Chance, 47 Iowa, 602 ; Sclimil- But cannot both causes of action be re- zer v. Cohen, 7 Hun, 665 ; French >: ferred to the single class of "injuries to Salter, 17 id. 546; Dyer y. Barstow, 5 property " 1 The recovery of possession Cal. 652 ; Brown v. llice, 51 id. 89. is merely the relief, and not the cause of action. 542 CIVIL REMEDIES. § 504. In one or two of the States, actions for injuries to the person constitute a separate class, and are not grouped together with those for injuries to property. Thus in California, an " ac- tion to recover damages for alleged injuries to the person and property of the plaintiff, and for his false imprisonment, and for forcibly ejecting him from a house and lot in his possession, and detaining the possession thereof from him," was held to be an improper union, as it embraced causes belonging to two if not three of the classes specified in the code ; ^ and in another case, the joining of a claim to recover possession of land, damages for its detention, damages for the forcible expulsion of the plaintiff from the premises, and the value of the improvements made by him, was pronounced equally an error for the same reason.^ § 505. An action to quiet the title to three different tracts of land which had belonged originally to different owners, and which the plaintiff held under three distinct tax deeds executed at separate times, was held in Wisconsin to violate the require- ments of the code. The proceeding was likened by the court to the foreclosure in one action of three dififerent mortgages given by three different owners upon three separate parcels of land.^ SECTION THIRD. THE GENERAL PRINCIPLES OF PLEADING. § 506. In order that the system of pleading introduced by the reformed procedure may be accurately understood, I shall briefly describe the essential principles and doctrines of those which pre- vailed in different courts at the time of its adoption, and the comparison which can thus be made will be of great assistance in arriving at correct results. The three types of pleading then known either in England or in this country were the common law, the equity, and that which in the absence of a distinctive name I shall call " pleading by allegation." The last-mentioned method was used in the courts of admiralty, of probate and divorce, the ecclesiastical courts, and wherever the law as ad- ministered was based directly upon the doctrines and modes of 1 McCarty v. Fremont, 23 Cal. 19G, Bowles v. Sacramento Turnp. Co., 5 Cal. 197. 224 ; Bigelow v. Gove, 7 Cal. 1.3.3. 2 Mayo V. Maflden, 4 Cal. 27. And see » Turner v. Duchman, 23 Wis. 600. PRINCIPLES OF EQUITY PLEADING. 543 the Roman Civil Law. Its peculiar features consisted (1) in breaking up an entire pleading into a number of separate para- graphs, — technically "allegations," — each of which should prop- erly contain a single important circumstance or principal fact going to make out the cause of action ; and (2) the statement in each allegation of all the minute and subordinate facts which taken together compose, and are evidence of, the main circum- stance or fact relied upon by the litigant party to sustain his con- tention. The pleading as a whole, therefore, comprised not only averments of the substantial facts, the important conclusions of fact which must be established by the proofs, — those facts which in the common-law system are called " issuable " or " material," — but also a narrative of all the probative facts, of all the evi- dence from which the existence of the " issuable " facts must be inferred. A libel constructed upon this theory disclosed the whole case of the complaining party ; if properly framed, it set forth in a continuous and narrative form a complete account of the transaction, describing the situation of the parties at its com- mencement, all the various incidents which happened in its pro- gress, its final conclusion, and the results produced upon each, and prayed for such relief as the law affords in the given case. The codes of several States have plainly intended to borrow one feature of this system ; that is, the separation of the pleading into a number of distinct paragraphs continuously numbered, and each comprising the statement of a single material or issu- able fact. The second feature, namely, the narrative of proba- tive facts and circumstances in the manner above described, violates the fundamental and essential principle of the reformed procedure. § 507. The equity method of pleading, when freed from all the superfluous additions which had become incorporated with it in practice, and when thus reduced to its mere essential elements, consisted in a statement of all the facts indicating the relief to which the complainant is entitled, and in this original aspect it did not differ in principle from that prescribed by the codes. I purposely make use of the expression " facts indicating the relief to which the complainant is entitled," rather than the ordinary phrase " facts constituting the complainant's cause of action," for a reason which will be fully explained in the sequel. I now call attention to the form of expression, for it is important, and will 544 CmL REMEDIES. assist in removing certain difficulties which have been suggested by some of the judges in their exposition of the codes. Prac- tically, a bill in equity, prior to any modern reforms, had been changed from the original simplicity as above described, and had come to consist of three distinct parts or divisions, the narrative, the charging, and the interrogative. The first of these contained a statement of the complainant's case for relief ; the second antici- pated and rebutted the defendant's supposed positions ; while the last was used to probe the defendant's conscience, and to extract from him admissions under oath in his answer concerning matters within his own knowledge which the existing rules of evidence did not permit to be proved by the parties themselves as ordinary witnesses. The result of these modifications was an almost entire departure from the simple conception of equity pleading. The bill and answer were generally made to include the evidence by which either party maintained his own contention, or defeated that of his adversary, and also legal conclusions and arguments which more appropriately belonged to the briefs of counsel and the discussions at the hearing. All this, I say, although very common and perhaps universal in the actual practice before any reforms through legislation or rules of court, was really unneces- sary, and formed no essential part of the theory of equity plead- ing. The only indispensable portion of a bill was the narrative. Except for the purpose of eliciting evidence from the defendant, there was no more reason why this should contain mere evidence of the facts that were the foundation of the complainant's demand for relief, as contradistinguished from those facts themselves, than there was for the same kind of probative matter to be inserted in a declaration at law. The bill in equity, as has been already said, should comprise a statement of all the facts which show the relief to which the complainant is entitled, which indicate the nature and extent of that relief whether total or partial, and the modifications or exceptions to be made in it ; while the an- swer should perform the same office for the defendant. By the application of this doctrine, a bill in equity was generally quite different in its contents from a declaration at law ; it was ordi- narily more minute in its averments, and contained statements of matter which in a legal action would more naturally and properly belong to the evidence rather than to the allegations of issuable facts. The reason fur this distinction lay entirely in the differ- PRINCIPLES OF EQUITY PLEADING. 545 ence between equitable and legal primary rights and between equitable and legal remedies, especially in the latter. A judg- ment at law was always a single award of relief; the recovery either of a specific tract of land, or of a specific chattel, or of a definite sum of money, and such judgment, whatever might be its amount, was either wholly rendered for the plaintiff, or wholly denied. Furthermore, the right to recover a legal judgment always depended upon the existence of a comparatively few im- portant facts, — " issuable " or " material " facts, — and the very definition of an issuable fact is, one which, if denied and not proved, would prevent the plaintiff from recovering. In equity, the primary rights and remedies of the complainant were often very different from those which existed at law. His remedy was not necessarily a single recovery of some specific form of relief ; it might vary in its nature and extent through a wide range ; it might be total or partial, it might be absolute or conditional. The defence, on the other hand, might be total or partial ; and it might even consist of modifications made in the form of relief demanded b}^ the complainant, or in supplemental provisions added thereto in order to meet some future contingency. In short, it was impossible to say that the complainant's right to recover always depended upon the existence of certain " issuable " facts, the failure to establish either one or even all of which would necessarily defeat his contention. It is true that in some cases the equitable remedy sought by the complainant might be of such a nature that it would follow from the proof of such issu- able facts as completely and directly as the plaintiff's right to a common-law judgment does in a legal action. While this was possible in some instances, in the great majority of equitable actions the relief was more complicated ; the primary rights were more comprehensive ; and the decree as a whole was shaped, modified, and adapted to various circumstances and minor facts upon which individually the cause of action or the defence did not entirely rest, but all of which in combination entered into the resulting remedial right belonging to the litigant parties. Now, on the theory of equity pleading, all these facts should be averred by the complainant or the defendant as the case might be ; and while it can be properly said that they all indicate and affect the relief to be awarded by the court, they cannot all be said " to constitute the cause of action" or the defence in the 35 546 CIVIL REMEDIES. same sense in which the " issuable " or " material " facts consti- tute the cause of action or the defence in a suit at law. I repeat the statement already made, for it is an important one, that this description does not necessarily apply to every case of equitable relief. Under certain circumstances, and in some particular in- stances, the remedy and the right to its recovery are single and depend upon the existence of a few well-defined and controlling facts ; such facts are then " material " or " issuable " in the stiictest sense of those terms, and they are all that it is requisite to allege in the pleading. In most instances, however, an equity pleading necessarily contained allegations of facts which were not " issuable " in the technical meaning of that word, but which were nevertheless the basis of the relief demanded and obtained. I have dwelt thus carefully upon the foregoing analysis, because it is the element which enters into and decides a most important question to be considered in the sequel ; namely, whether the proper modes of pleading in legal and in equitable actions under the refoimed procedure can be referred to and derived from the single fundamental principle announced by all the codes. An- other essential feature belonged to the equity method of pleading, and distinguished it from that which prevailed in courts of law. The facts upon which the contentions of the litigant parties wholly or partially depended were averred as they actually happened or existed, and not the legal effect or asj^ect of those facts. This distinction was a vital one, as will be fully pointed out in the succeeding paragraphs, and its relations with the reformed theory of pleading are direct and intimate. § 508. I come finally to the common-law system of plead- ing. It has frequently been said, even by able judges, that under this method the material, issuable /ac^s constituting the cause of action, and they alone, were to be alleged ; and that, as exactly the same principle lies at the basis of the new system, the latter has made no substantial change, but has only removed the un- necessary and troublesome incidents which had been gathered around the original simple common-law conception. In support of this view, the general language of Chitty and other text-writers is quoted as conclusive. There is just enough truth in this de- scription of the common-law pleading to make it plausible ; but enough of error to render it, when adopted as a means of inter- preting the codes, extremely misleading. In fact, it is irapos- PRINCIPLES OF COMMON-LAW PLEADING. 547 sible to describe the common-law pleading as a unit : it was gov- erned by no universal principles ; the modes which prevailed in certain actions were radically unlike those that were employed in others. I shall attempt in a very brief manner to point out all its essential features, and to explain its general character. § 509. In the first place, certain elements were firmly incorpo- rated into the system which were not really fundamental and es- sential, although often regarded and spoken of as its peculiarly characteristic requisites. I refer to the extreme nicety, precision, and accuracy which were demanded by the courts in the framing of allegations, in averring either the facts from which the primary rights of the parties arose, or those which constituted the breach of such rights, in the use of technical phrases and formulas, in the certainty of statement produced by negativing almost all pos- sible conclusions different from that affirmed by the pleader, in the numerous repetitions of the same averment, and finally in the invention and employment of a language and mode of expres- sion utterly unlike the ordinary spoken or written English, and meaningless to any person but a trained expert. This require- ment of accuracy and precision was in former times pushed to an absurd and most unjust extreme ; as for example, the use of the past tense "had," instead of the present "have," in a material allegation, would be fatal to the plaintiff's recovery. If it be said that these extreme niceties and absurd technicalities were things of the past, abandoned b}' the law courts in modern times, a perusal of some standard reports — for instance, those of Meeson and Welsby — will show on what grounds of the merest form the rights of litigant parties have been determined, even within the present generation. Still, I do not regard this precision, accuracy, and general teclmicality, which actually distinguished the common-law system of pleading, as something essential to its existence, as its al)solutely necessary elements. It might have retained all its fundamental principles in respect to the nature of the allegations used and the kinds of facts averred, and at the same time have employed the familiar language of common narra- tive in making all these averments. The essential elements of the system would then be presented in their naked simplicity. The actual technicalities which have been thus mentioned, and which were the boast of the skilful special pleader, were only a disgrace to the administration of justice. However pleasant 548 CIVIL REMEDIES. they might have been as exercises in logic, they were productive of untold injustice to suitors. It is simply amazing that they could have been retained so long and adhered to so tenaciously, and even lauded with extravagant eulogiura, among peoples like the English and the American. That they were entirely abro- gated b}' all the codes of procedure is plain ; and after a series of improvements, commencing in 1834, when the celebrated " Rules of Hilary Term " were adopted, the British Parliament has swept them out of the English law, and has introduced the substance of the American system. § 510. Passing from these technical incidents, I proceed to in- quire what were the real and essential principles and elements of the common-law pleading. How far was it true that the material facts constituting the cause of action, and these alone, were to be alleged ? This statement was partly correct, — that is, correct under most important limitations and reservations, in certain of the forms of action ; while in the other of these forms of action it was not true in the slightest extent ; in fact, it was diametrically opposed to the truth. I will recapitulate the important actions, and refer them to their proper classes. In ejectment there can be no pretence that any attempt was made to allege the actual facts constituting the cause of action ; the declaration and accom- panying proceedings were a mass of fictions which had become ridiculous, whatever may have been their original usefulness, and the answer was the general issue ; the record thus threw no light upon the real issues to be tried by the jury. In trover, the aver- ments of the declaration were that the plaintiff was possessed, as his own property, of certain specified chattels ; that he lost them ; and that the defendant found them, and converted them to his own use. Throwing out of view the abused fictions of a loss and a finding, there was here the statement of two facts, namely, the description of the chattels so as to identify them, and the plain- tiff's property in them ; but the most important allegation of all, the one upon which in the vast majority of cases the whole con- troversy would turn, was a pure conclusion of law. The state- ment that defendant had converted the same to his own use did not indicate any fact to be considered and decided by the jury in reaching their verdict. In the action of debt, also, the important allegation was a mere conclusion of law, namely, that the defend- ant was indebted to the plaintiff in a certain sum whereupon an PRINCIPLES OF COMMON-LAW PLEADING. 549 action had accrued; and altliough the declaration contained a further statement of the consideration or cause of the indebted- ness, yet as a whole it did not pretend to set forth the material facts constituting the cause of action. In assumpsit, the plead- ings were of two very different species, in all cases of implied promises, and especially when the common counts were resorted to, the averments were purely fictitious, as much so as in eject- ment ; there was not the slightest approach towards a statement of the facts constituting a cause of action as they actually ex- isted. When the suit was brought upon an express contract, and the declaration was in the form of a special assumpsit, there was a greater appearance of alleging facts ; but even here the facts were stated in their supposed legal aspect and effect, as legal con- clusions, and not simply as they occurred. There are left to be considered the actions of covenant, detinue, trespass, and case. In each one of these, according to the nature of the action, the facts constituting the grounds for a recovery were more nearly stated, although in some of them the averments were required to be made in an exceedingly precise and technical manner. The declaration in a special action on the case necessarily comprised a narrative of the actual facts constituting the cause of action ; but as has been said, this narrative was thrown into a very arbitrary, technical, and unnatural shape. It therefore bore some resem- blance in substance to a complaint or a petition, when properly framed according to the reformed theory ; and some judges have even said that every such complaint or petition is a declaration in a special action on the case. The assertion so often made by the older text-writers, and repeated by modern judges, that the com- mon-law system of pleading demanded allegations of the facts constituting the cause of action or the defence, is thus, as a general proposition, manifestly incorrect, for in many forms of action there was no pretence of any such averments. § 511. But we must go a step farther in order to obtain an ac- curate notion of the common-law theory. In all the instances where fictions were discarded, and where the important allega- tions were not mere naked conclusions of law, but where, on the contrary, the plaintiff assumed to state the "issuable " facts con- stituting his cause of action, he did not narrate the exact transac- tion between himself and the defendant from which the rights and duties of the respective parties arose ; he stated only what he con- 550 CIVIL REMEDIES. ceived to he the legal effect of these facts. The " issuable " facts, in the contemplation of the common-law system, were not the ac- tual controlling facts as they really occurred, and as they would be proved by the evidence, from which the law derived the right of recovery : they were the legal aspect of those facts^ — not strictly the bare conclusions of law themselves derived from the circumstances of the case, but rather combinations of fact and law, or the facts with a legal coloring, and clothed with a legal character. The result was, that the ^ issuable " facts as averred in the pleading were often purely fictitious ; that is, no such events or occurrences as alleged ever took place, but they were represented as having taken place in the manner conceived of by the law. The pleader of course set forth his own view of this legal effect under the peril of a possible error in his application of the law to his case ; if a mistake was made in properly conceiving of this legal effect, — or, in other words, if the facts established by the evidence did not correspond with his opinion as to their legal aspect stated in the declaration, — the plaintiff's suit would entirely fail.^ 1 In corroboration of these conclusions, I quote a paragrapii from a series of ex- ceedingly able articles upon the English Judicature Bill, which appeared in the " Saturday Review " during the year 1873, and were correctly attributed to one of the foremost English barristers as their autlior. While discussing the plead- ing which ought to be introduced, he de- scribes the common-law methods by way of contrast, and, among others, the fol- lowing as one of its features : " The first striking difference is this, that, on the common-law plan, a plaintiff is required to state, not tiie facts, but what he con- siders to be the legal effect of the facts. If his advisers take a wrong view of a doubtful point, and make him declare, say, for goods sold and delivered when the real facts, as proved, only make a case (jf goods bargained and sold, the un- lucky plaintiff is cast, not because he is not entitled to recover, but because he lias not put his case as wisely as lie might liave done. In practice, dangers of this kind are mitigated, though by no means invariably escaped, by inserting a multi- tude of counts, all giving slightly different versions of the same transaction, in order that on one or other of them the plain- tiff may be found to have stated cor- rectly the legal effect of the facts. The permission to do this was in fact a recog- nition of the plaintiff's inherent right to ask alternative relief; but it was clogged by the absurd condition that he could only do so by resorting to the clumsy fiction of pretending to have a number of independent grounds of action, when he knew that he had only one, but did not know exactly what the court might con- sider the legal effect of his facts to be. This was not only unscientific and irra- tional, but, in some cases, it has led to enormous expense by compelling a plain- tiff to declare on, and a defendant to plead to, scores of fictitiously differing counts, when there was only one matter in dis- pute between them. We do not suppose that the greatest zealot among special pleaders would say that such a queer scheme as this is preferable to one under which the plaintiff states the facts on which he founds his claim, and asks for such relief as their legal effect may entitle him to." " Saturday Keview," April 12, miNCIPLES OF COMMON-LAW PLEADING. 551 § 512. The extent of these fictitious allegations in pleading, and their influence upon the form and growth of legal doctrines at large, are exhibited in a remarkable manner by the history of the action of assumpsit, and its effect in originating and develop- ing the doctrine of implied promises and contracts. At an early day, the action of debt was the only one by which to recover for the breach of an unsealed contract ; but the defendant was per- mitted to "• wage his law," and by that means to greatly embar- rass, if not to defeat, the plaintiff's recovery. To obviate this difficulty, the action of assumpsit was at length invented. The gist of this action was the defendant's promise ; the distinctive averment of the declaration was the promise, of course express in form, and so indispensable was it, that, if the allegation was omitted, judgment would be arrested, or reversed on error, even after verdict in the plaintiff's favor. The promise was stated to have been express, and in fact no form of common-law action provided for a recovery upon an implied promise ; in every case of assumpsit, either general or special, on the common counts or otherwise, the defendant was represented as having expressly promised. For a considerable period of time after the invention of assumpsit, undoubtedly the contracts enforced by its means were all express, so that the averment of the declaration accorded with the actual transaction between the parties, as shown by the evidence. In the course of time, however, cases were brought before the courts, in which the right of action on the one hand, and the liability to pay on the other, depended upon a moral and equitable duty of the defendant, arising, not from any promise made by him, but from the acts, circumstances, and relations ex- isting between him and the plaintiff. The courts were thus placed in a dilemma. The obligation of the defendant and the right of the plaintiff were founded upon the plainest principles of equity and justice, and to den}' their existence was impossible. Still, there was no action directly appropriate for their enforce- ment. None of the actions ex delicto could be used, since there was no tort ; debt was also out of the question, because the amount claimed was unliquidated damages ; even assumpsit was 1873, voL 35, p. 472. In the face of this to be as fictitious as many of its ordi- most accurate description of common-law nary allegations, — one of tlie fictions pleading in its essence, the assertion that which make up so large a part of the it requires a statement of the actual facts system itself, constituting the cause of action is seen 552 CIVIL REMEDIES. not applicable, for there was no promise. In this emergency the English judges were true to their traditions, and to all their modes of thought. Instead of inventing a new action, and applying it to the new class of facts and circumstances, they reversed the order, and applied the facts and circumstances to the already existing actions. They fell back upon their invariable resource, the use of fictions ; but went farther than ever before or since ; and, instead of inventing a fictitious element in the action, they actually added a fictitious feature to the facts and circumstances from which the legal right and duty arose. They selected the existing action of assumpsit as the one to be employed in such classes of cases ; and since that action is based upon a promise, and since the declaration must invariably allege a promise to have been made, the earl}^ judges, instead of relaxing this requirement of pleading, actually added the fictitious feature of a promise which had never been made to the facts which constituted the defendant's liability. In other words, the courts invented the notion of an implied promise, in order that the cases of liability and duty resulting from certain acts, omissions, or relations where there had been no promise, might be brought within the action of assumpsit, and be tried and determined by its means. There is no more singular and instructive incident than this in the whole history of the English law, and it has a most direct and important connection with the practical rules of pleading under the reformed procedure of the codes. We see that the notion of an implied promise as the ground of recovery in these cases of moral and equitable duty did not exist prior to and independent of the action which was selected as the proper instrument for its en- forcement ; on the contrary, the action already existed the dis- tinguishing feature of which was the allegation of a promise made Vjy the defendant, and a fictitious or " implied " promise was in- vented and superadded to the actual facts constituting the de- fendant's liability, for the simple purpose of bringing his case within the operation of that action and its formal averment.^ * It would be both interesting and in- an excursion. I quote, however, the con- structive to trace tliis doctrine of implied elusions reached by Jud^re Metcalf in his promises tliroufrh the whole series of exceedin^dy able work upon Contracts, as cases, from its first sufj^gestion as a fiction an autliority for the })ositi()n taken in the of pleading until it became firmly incor- text. After an analysis of numerous early porated into the general theory of con- cases, he says : "As there will be no occa- tracts ; but my limits will not permit such sion to advert hereafter to the fictions PRINCIPLES OF COMMON-LAW PLEADING. 553 § 513. Having thus described the three types of pleading in existence when the reformed procedure was inaugurated, 1 now proceed to examine the system introduced by that procedure itself. In pursuing this investigation, I shall endeavor, firsts to ascertain the essential and general principles npon which it is founded ; secondly^ to determine the manner in which the plain- tiff should set forth the affirmative subject-matter of the action in his complaint or petition ; and thirdly, to apply the results thus reached to the most important and common instances of action and remedy. Although I shall aim at a close conformity with the true spirit and intent of the statutory legislation, yet this intent will be sought for in the decided cases which have given a judicial interpretation to the codes. It must be conceded at the outset that there is an irreconcilable conflict between two classes of decisions, not only in mere matters of detail, but in adopted in setting forth the plaintiff's claim in declarations in the action of as- sumpsit, it may not be amiss to present a succinct view of those fictions, and of the reasons on which they are founded. The usual action on a simple contract in old times was debt. The declaration in that action averred in substance that the de- fendant owed the plaintiff, and thereupon an action had accrued, &c. No promise was alleged, for no promise was necessary. But the defendant was allowed to wage his law. To avoid this wager of law, a new form of action was devised, to wit, the action of assumpsit, in which a prom- ise of the defendant was alleged, and was indispensable. A declaration which did not aver such promise was insufficient even after verdict ; and the law is the same at this day. The promise declared on is always taken to be express. In pleading, there is no such thing as an im- plied promise. But as no new rule of evi- dence was required in order to support the new action of assumpsit, it being necessary only to prove a debt, as was necessary when the action was debt, the fictitious doctrine of an implied promise was introduced ; and for the sake of legal conformity it was held, when the defend- ant's legal liability was proved, that the law presumed that he had promised to do what the law made him liable to do. . . . A single example will illustrate these two fictions [the author had described the kindred fiction of an (implied) request alleged to have been made]. A husband is bound by law to support his wife; and if he wrongfully discard her, any person may furnish support to her, and recover pay therefor of the husband. In the ac- tion of debt, there would be no necessity to allege a promise in such a case. But the husband might wage his law, and de- fraud the plaintiff. In the action of assumpsit, the furnishing of the supplies must be alleged to have been by the plaintiff at the husband's request, and a promise of the husband to pay must also be alleged. But proof of the actual facts supports both these allegations. The husband, being in law liable to pay, is held to have (impliedly) made botJi the request and the promise." Metcalf on Contracts, pp. 203, 204. This origin of the implied promise, of its invention as a fiction in order to bring the case within the operation of " assumpsit " throws a strong light upon the question, whether, in an action to enforce such a liability under the codes, the plaintiff should, in addition to the actual facts from which the defendant's liability arises, also allege a promise to have been made by him. The promise was simply a formal inci- dent of the particular action in the old system, and is certainly no more than such an incident in the new. 554 CIVIL REMEDIES. their whole course of reasoning, in the premises which they as- sume, and in the conclusions which they draw therefrom. But this conflict was, in by far the greater part of the States, confined to the earlier periods of the reform, and has virtually disappeared. There is a substantial agreement among the courts in respect to the general principles which they have finally adopted : whatever differences now exist arise in the process of applying these funda- mental doctrines to particular cases. The confusion which ac- tually prevails to a very great extent in several of the States results not from any uncertainty either in the general principles or in the more subordinate rules, but from an entire ignorance or disregard of them by pleaders, and from a neglect to enforce them by the judges. § 514. Before entering upon the matter thus outlined a pre- liminary question suggests itself, upon the answer to which much of the succeeding discussion must turn. This question involves the true relations between the doctrines and rules of pleading enacted by the codes and those which existed previously as parts of the common law and the equity jurisprudence, and may be stated as follows : Are the doctrines and rules contained in the statute to be regarded as the sole guides in pleading under the reformed procedure ? or are the ancient methods still controlling, except when inconsistent with some express provisions of the later legislation ? In answering this inquiry, the two schools of interpretation so often mentioned again appear, and the differ- ence between them is the same as that already described under a somewhat altered shape. It is plain that the position taken by the courts, in answering the question here suggested, must to a very great extent influence the whole body of practical rules which they adopt in reference to pleading as well as to all the other features of the civil action. According to one theory, these doctrines and rules of the common law and of equity still remain, although changed in many particulars by the reform legislation : the pleader must first recur to them, and must then examine how far their requirements have been abrogated or altered by the statute ; in a word, the legislation is purely amendatory, and is not reconstructive. According to the other theory, these doc- trines and rules of the common law and of equity do not exist at all as authoritative and controlling, — that is, as controlling he- cause rules of the common law or of equity. The general prin- GENERAL PRINCIPLES OF PLEADING. 555 ciples and fundamental requirements of the codes have been substituted in their place, completely abrogating them, and con- stituted by the legislature as the only sources of authority to the bench and the bar in shaping the details of the reformed proce- dure. If any particular doctrine or rule which formerly prevailed is also found existing to-day, it so exists not because it is a part of the common law or of the equity system, but because it is either expressly or impliedly contained in and enacted by the reformatory statute. When, therefore, in discussing and inter- preting such a doctrine, a resort is had to the former methods for aid, tlie reference is, not to obtain authority, but to find an analogy or explanation. In other words, the system introduced by the codes is regarded as complete in itself, entirely displacing the ancient modes. In several particulars, however, its doctrines and rules are either identical with or closely resemble those which existed before ; and, in their judicial construction, recourse must be had by way of explanation and analogy merely to these original forms, but no such recourse is to be had for the purpose of ob- taining the authority for any proposed measure or practical regu- lation connected with the pleading under the new procedure. § 515. During the earlier periods of the present system, there was an evident disj)osition on the part of some judges and courts to adopt the former of these two views, and to hold that the old methods, rules, and requisites of the common law and of equity, are still applicable in substance when not inconsistent with the provisions of the statute ; or, in other words, that they had been supplanted only so far as such inconsistency extends.^ The second theory has, however, been generally if not universally adopted as the true interpretation to be put upon the language of the codes, and as the starting-point in the work of construct- ing a system of practical rules for pleading. The proposition, as stated in the foregoing paragraph, has been expressl}'^ announced in well-considered judgments ; in the vast majority of instances, however, it has rather been assumed and impliedly contained in the decision of the court, yet none the less passed upon and affirmed. It may now, I think, be regarded as the established 1 See Howards. Tiffany, 3 Sandf. 695; Davis, 6 How. Pr. 401; Houghton v. Fry (-•. Bennett, 5 Sandf. 54; McMaster Townsend, 8 How. Pr. 447; Boyce V. Booth, 4 How. Pr. 427 ; Rochester City v. Brown, 7 Barb. 80 ; Knowles i-. Gee, 8 Banki'.Suydani, 5 How. Pr. 216 ; Wooden Barb. 300; Bank of Genesee u. Patchin V. Waffle, 6 How. Pr. 145 ; Buddington v. Bank, 13 N. Y. 309, 313. 556 CIVIL REMEDIES. clcctrine, that the code in each of the States is the only source of authority from which rules of pleading may be drawn, that its methods have completely supplanted those which preceded it, so that the latter can no longer be appealed to as possessing of them- selves any force and authority .^ § 516. The general and essential principles of pleading. I shall now proceed to gather from the text of the codes, as interpreted by the most authoritative decisions, and to state in order, the comparatively few general and essential principles of pleading introduced by the reformed procedure, which constitute the foundation of its simple, natural, and scientific as well as prac- tical system. These essential principles apply to certain classes of answers in addition to all complaints or petitions, although from the nature of the two pleadings they find their fullest and highest expression in the latter. Whenever the answer is simply in the form of denial, whether general or specific, it is of course governed by rules applicable to it alone. But so far as the an- swer contains defences of new matter, and a fortiori so far as it contains a counter-claim, or set-off, or the basis of any affirmative relief, its allegations and those of the complaint or petition must- conform to the same requirements, must follow the same method. The general and essential principles of the reformed pleading now to be discussed, illustrated, and arranged in an orderly man- ner, apply therefore alike to the plaintiff's statement of his case for relief, and to the defendant's statement of affirmative matter, either by way of defences in confession and avoidance, or by way of cross-demands against any parties to the action. § 517. The fundamental and most important principle of the. reformed pleading, the one from which all the others are deduced as necessary corollaries, is the following : The material facts which constitute the ground of relief, or the defence of new matter (confession and avoidance), should be averred as they actually existed or took place, and not the legal effect or aspect of those facts, and not the mere evidence or probative matter by which their existence is establised.^ I have purposely refrained 1 Trustees v. Odlin. 8 Ohio St. 293 ; son, 1 id. 403, 480 ; Scott v. Robards, 67 Jolly V. Terre Ilante, &c. Co., 9 Ind. 421 ; Mo. 289 ; Dunn v. Remington, 9 Neb. 82 ; White V. Joy, 13 N. Y. 83, 90 ; People v. Ingle c Jones, 43 Iowa, 286. Ryder, 12 N. Y. 4-33, 438, 439 ; Aliern v. ^ People v. Ryder, 12 N. Y. 433, 437 ; Collins, .39 .Mo. 145, 150. See .also Clark Hill v. Barrett, 14 B. Mon. 83 ; Green v. V. Bates, 1 Dakota, 42; Clay Co. v. Simon- Palmer. 15 Cal. 411, 414; Rogers v. Mil- GENEKAL PRINCirLES OF PLEADING. 557 from using the common formula, " facts which constitute the cause of action,'' in order tliat the principle might be expressed waukee, 13 Wis. 610, Oil ; Bird v. Majer, 8 Wis. 362, 367 ; Horn v. Ludington, 28 Wis. 81, 83 ; Groves v. Tallman, 8 Nev. 178; Pier v. Heinrichoffen, 52 Mo. 333, 335 ; Wills v. Wills, 34 Ind. lOS, 107 ; De Graw v. Elmore, 50 N. Y. 1 ; Cowin v. Toole, 31 Iowa, 513, 516 ; Singleton v. Scott, 11 Iowa, 689; Bo wen v. Aubrey, 22 Cal. 566, 569 ; Pfiffner v. Krapfel, 28 Iowa, 27, 34 ; White v. Lyons, 42 Cal. 279, 282 ; Louisville, &c. Co. v. Murphy, 9 Bush, 522, 527 ; Gates v. Salmon, 46 Cal. 361, 379; King v. Enterprise Ins. Co., 45 Ind. 43, 55 ; Lytle v. Lytte, 37 Ind. 281 ; Van Schaick v. Farrow, 25 Ind. 310 ; Chicago, &c. K. R. v. North West. Un. Co., 38 Iowa, 377, 382 ; Bowen v. Emmerson, 3 Oreg. 452 ; Cline v. Cline, 3 Oreg. 355, 358 ; Gates v. Gray, 66 N. C. 442, 443 ; Farron v. Sherwood, 17 N. Y. 227 ; Coryell v. Cain, 16 Cal. 567, 571. I quote from some of these cases in which the general principle is fully stated, in order that the exact views of the courts may be shown, as well as the conclusions drawn from them in the text. The opin- ion of Marvin J. in People v. Ryder is exceedingly instructive, and covers most of the subordinate questions that arise in connection with the general topic. He said (p. 437) : " This rule [§ 142 of the New York code] is substantially as it ex- isted, prior to its enactment, in actions at law. Chitty says : ' In general, whatever circumstances are necessary to constitute the cause of complaint or ground of de- fence must be stated in the pleadings, and all beyond is surplusage ; facts only are to be stated, and not arguments or infer- ences or matter of law, in which respect pleadings at law appear to differ material- ly fnmi those in equity.' (1 Ch. PI. 245.) At page 266 lie says: 'It is a most im- ])ortant principle of the law of pleading, that in alleging the fact it is unnecessary to state such circumstances as tend to prove the truth of it. The dry allegation of the fact, without detailing a variety of minute circumstances which constitute the evidence of it, will suffice. The ob- ject of the pleadings is to arrive at a spe- cific issue upon a given and material fact ; and that is attained although the evidence of such fact to be laid before a jury be not specifically developed in tlie j)leading8.' I have supposed it safe, and a compliance with the code, to state the facts constitut- ing the cause of action substantially in the same manner in which tliey were stated in the old system in a spfcial count. By that system the legal issuable facts were to be stated, and the evidence by which those facts were to be established was to be brought forward upon the trial. This position will not embrace what were known as the common counts. . . . It has been supposed that a wider latitude should be allowed in equity pleading, and that evidence may to some extent be incor- porated in the statement. The rule of the code is broad enough for all cases ; and it permits a statement of facts and circumstances as contradistinguished from the evidence which is to establish those facts. But in all equity cases the facts may be more numerous, more compli- cated, more involved ; and the pleader may state all these facts in a legal and concise form which constitute the cause of action, and entitle him to relief. The rule touching the statement of facts con- stituting the cause of action is the same in all cases ; and the rules by which the sufficiency of pleadings is to be deter- mined are prescribed by the code." How far the positions quoted from Mr. Chitty are correct is shown in the preceding paragraphs of this section. No more ac- curate exposition of the fundamental doc- trine announced by the codes is to be found in the books than the foregoing opinion of Mr. Justice Marvin. In several of the cases to be cited the discussion has been confined to legal actions, and general statements have been made in reference to the "material" or "issuable" facts which are plainly erroneous when applied to suits brought for equitable relief The principle as formulated by Mr. Justice Marvin embraces both species of actions, and brings them both within the purview of the statutory provision. In Hill v. Barrett the same fundamental principle was stated by Marshall J. in a most clear 558 CIVIL REMEDIES. in its most comprehensive manner, and might include equitable as well as legal actions. As will be shown in the sequel, it is ami admirable manner (p. 84): " Altliough the Code of Practice has abolished not only the pre-existing forms of action, but also the pre-existing forms of pleading, and has declared that henceforth the forms of pleadings, and the rules by which their sufficiency is to be determined are those prescribed in the code itself, it adopts wliat has always been a cardinal rule with respect to the allegation of the plaintiff, now called a petition, that it must contain a statement of the facts con- stituting the plaintiff's cause of action. While the code contains a very few ad- ditional rules with respect to the mode or manner of alleging the facts relied upon as constituting a cause of action, it does not, and could not, particularize the facts necessary to be stated, nor give any af- firmative rule more special or more in- structive than that which requires that the petition shall contain the facts con- stituting the plaintiff's cause of action." [Here follows the passage quoted in the text of § 108, supra, to and including the words " that the declaration must state the facts which constitute the plaintiflTs cause of action ; " after which the opinion proceeds as follows :] " In adopting this fundamental rule of pleading, the code must be considered as adopting also the prevailing and authoritative expositions of it as understood at the time, except so far as the code itself either expressly or by necessary implication requires facts to be stated which need not before have been stated, or dispenses with the state- ment of facts formerly deemed necessary. The express dispensations apply rather to the forms of statement than to the facts to be stated. The implied dispensations grow mainly out of tlie reduction of all actions to one form. The requisites of additional facts may be implied from the abolition of that rule which had formerly made it sufficient, and indeed proper, (o stale ficts nrcording to tlicir h'qal effrri, in- stead nfstatlnrj them as they actuaUy occurred, while the code seems to require by the rule that they shall be stated in ordinary language." In Green ;;. Palmer, the Su- preme Court of California laid down the rules in respect to the kinds of facts which should be averred, and defined the nature of " material " or " issuable " facts in a most exhaustive manner. From the elaborate opinion of Field C. J. the fol- lowing extracts are taken (p. 414) ; " First rule. Facts only must be stated. This means tiie facts as contradistin- guished from the law, from argument, from hypothesis, and from evidence of the facts. Tiie facts must be carefully distinguished from the evidence of the facts. The criterion to distinguish the facts from the evidence is, — Second rule. Those facts, and those alone, must be stated which constitute the cause of ac- tion, the defence, or the reply. There- fore (1) each party must allege every fact which he is required to prove, and will be precluded from proving any fact not alleged. The plaintiff, on his part, must allege all that he will have to prove to maintain his action; the defend- ant, on his part, all tliat he must prove to defeat the plaintiffs title after the com- plaint is admitted or proved. (2) He must allege nothing affirmatively which he is not required to prove. This is some- times put in the following form ; viz., 'that those facts, and those only, should be stated which the party would be re- quired to prove.' But this is inaccurate, since negative allegations are frequently necessary, and they are not to be proved. The rule applies, however, to all affirma- tive allegations, and, thus applied, is uni- versal. Every fact essential to the claim or defence should be stated. If this part of the rule is violated, the adverse party may demur. .In the second place, nothing should be stated which is not essential to the claim or defence ; or, in other words, none but ' issuable ' facts should be stated. If this part of the rule be vio- lated, tlie adverse party may move to strike out the unessential parts. An un- essential, or what is the same thing, an immaterial allegation, is one which can be .stricken from the pleading without leav- ing it insufficient, and, of course, need not be proved or disproved. The following question will determine in every case GENERAL PRINCIPLES OF PLEADING. 559 only in legal actions that the material or issuable facts which are to be averred " constitute the cause of action " in the strict sense whether an allegation be material : Can it be made the subject of a material issue 1 In other words, It denied, will tlie failure to prove it decide the case in whole or in part 1 If it will not, then the fact alleged is not material (issuable) ; it is not one of those which constitute the cause of ac- tion, defence, or reply." This opinion was adopted, and the mode of distinguishing " material " or " issuable " allegations was approved by the Supreme Court of Ore- gon in Cline v. Cline, 3 Oreg. 355, 358, 359. The criterion tlius proposed by Mr. Chief Justice Field is perfect in its appli- cation to legal actions, but is hardly broad enough to include all cases where equita- ble relief is demanded, unless it was in- tended to embrace sucii cases in the lan- guage " decide the case in whole or in part." If such was the intention, the manner of stating the rule is somewhat obscure, and it clearly needs amplification and explanation. I return to this question in a subsequent paragraph of the text. Horn V. Ludington, 28 Wis. 81, is an instructive decision in reference to the proper allegations to be made in an action for equitable relief. The action was equi- table. The complaint averred that in 1870, and for a long time prior thereto, the defendant L. held in his own name the legal title to certain property described, for the benefit of, and in trust for, the plaintiflp and three others, defendants, who, with the plaintiff, were the cestuis que trustent, and were entitled thereto in equal shares as tenants in common. It then alleged acts of L. in violation of his duty, and in denial of the trust. It prayed an execu- tion of the trust by a conveyance of the property to the beneficiaries ; or if tliat had been made impossible, then by a division of the proceeds in L.'s hands. The defendant L. moved to make this complaint more definite and certain in its averments in respect to the existence of the trust. This motion having been denied in the court below, L. appealed ; and the opinion of the Supreme Court was pro- nounced by Lyon J., who, after quoting the provisions of the code concerning the complaint, proceeds (p. 83) ■ " Here the cause of action is the alleged trust, the same as in a money demand on con- tract the debt is the cause of action. If there be no debt, there can be no recov- ery ; and in this action, if there is no trust, the plaintiff cannot recover. The cause of action — tliat is, the trust — is stated in the complaint; but the facts constituting such cause of action — namelj', the facts which make L. a trustee of the plaintiff and others in respect to the property in controversy — are not therein stated. We think, there- fore, that the plaintiff should have been required to make his complaint more definite and certain in this particular by stating facts which will show that L. holds the title to the property as such trustee." Some observations upon this opinion seem to be necessary. If its reasoning be correct, it leads to most important consequences. If the cause of action is stated, but not the " facts constituting the cause of action," then the complaint would have been demurrable, since the requirement is positive that such facts must be alleged, and their absence from the pleading is the principal ground of demurrer. But it cannot for a moment be claimed that this complaint would be bad on demurrer. The fundamental er- ror of the opinion is the assumption that the iriist is the cause of action. The trust is simply one fact going to constitute the cause of action. Th.e allegation of the trust in this case was tlie averment of a material fact in its broadest manner and form and in its legal sense or aspect, as was done in the common-law pleadings. But the suit being equitable, and the code demanding a statement of the material facts as they occurred, and not merely an allegation of their legal view or effect, this complaint was clearly defective in this respect. While the decision was, therefore, right, the reasoning is quite misleading ; at all events, it is opposed to the course of argument pursued in the great niajority of reported cases. It in- volves, however, the doctrine, that in equitable suits the material facts neces- sary to be averred may be quite different 560 CIVIL REMEDIES. of the term ; while in equitable actions facts may be material, and must be alleged, which, while they form the basis of or modify in tlicir nature from those which must be alieperl in le.ijal actions. In Pier v. Hein- riciioffen, 52 Mo. 333, whicti was an ac- tion against tlie indorsers of a note, tlie petition alleged a demand of payment at maturity, and notice of non-payment given to the defendants. At the trial the plaintiff proposed to prove facts ex- cusing such demand and notice ; and, the evidence being rejected, a verdict was ren- dered against him. This ruling was sus- tained by the Supreme Court. Ewing J., after saying that the plaintiff's mode of pleading would have been proper under tlie common-law system, proceeds (p. 335) : " As the vice of the old system of pleading was its prolixity, its general averments and general issues, and the delay and expense inseparable from it, the new sj'stem which we have adopted has little claim to be considered a reform, unless it avoids such defects, and furnishes rules by which the great object of all pleadings is attained ; viz., to arrive at a material, certain, and single issue. Hence the great improvement of our code consists in requiring the pleadings to con- tain a plain and concise statement of the firts constituting the cause of action, or matter of defence. Facts and not evi- dence nor conclusions of law, must be stated. Every fact which the plaintiff must prove to maintain his suit is consti- tutive in the sense of the code." The jietition in this case, it was held, should liave averred the matters of excuse sought to be proved. The description here given of issuable or "constitutive" facts is ap- propriate to legal actions only, and must be modified in its terms in order to meet the characteristic features of many equi- table suits. Wills V. Wills, 34 Ind. 106, is also very instructive, and contains a principle of wide ay)i)lication which dis- tinguishes the present from the former theory of pleading. The action was brought to recover for the use and oc- cupation of certain land, and the com- plaint was claimed to be radically de- fective. Downey J. said (p. 107) : "The objection to the complaint is that it contains no allegation tliat the defend- ant ever promised to pay, or ever agreed to pay, or that he was indebted to the plaintiff. To this the appellee answers that it is not necessary to use any word that shows an undertaking, agreement, or promise on the part of the defendant to pay rent, for none ever existed ; that the complaint states facts, and, technically speaking, the law raises the implied prom- ise to pay ; that the right of action, in fact, does not stand upon any contract or agreement, but arises from principles of equity and good conscience. . . . This is not a question relating to the right to re- cover rent on the one hand, or the liability to pay it on the other ; but it is a question of })leading. The question is this : Is it allowable, and is it sufficient, for the party to set forth the facts from which a prom- ise or indebtedness may be implied ? or must he allege the promise or indebted- ness, and then support it at the trial by proof of the circumstances ? " The judge here cites Gould on Pleading, p. 48, § 19, to the effect that a promise must always be averred in pleading in assumpsit, and in debt the declaration alleges that the de- fendant is indebted, and proceeds : " The complaint in this case is sui generis. We cannot classify it. It is not in assumpsit, for it alleges no promise ; it is not in debt, for it alleges no indebtedness. But, after gome examination of cases decided under codes similar to our own, we have come to the conclusion that, tested by the code, the complaint may be suflBcient. It would seem that, contrary to the rule at the com- mon law, a party in a suit for a money de- mand on a contract like this, where the contract is implied, may allege the facts from which the law implies the promise; and it will be suflBcient without alleging the promise or an indebtedness." lie adds that it is better, however, in all cases to allege a promise. " It is always good pleading to state the legal effect of the contract, whether it be written or oral." This opinion is a striking illustration of the pertinacity with which courts have clung to the ancient notions of actions and pleading that have been entirely ab- rogated by the reform legislation. Al- GENERAL PRINCIPLES OF PLEADING. 561 the remedy demanded, do not properly constitute the cause of action. This distinction will be fully developed in subsequent though reaching a correct decision, this held that he could recover that amount conclusion was evidently' forced upon tiie judges, and was accepted by them, as it were, under protest. It actually appeared strange to them that a complaint, drawn in exact conformity witli tlie requirements of the new procedure, should not be a dec- laration in assumpsit or in debt, as though the code was not enacted to produce tliis very result. The remark with whicli the quotation ends was undoubtedly true while the common-law methods prevailed; but it is exactly contrary to the whole spirit and intent of the present system : it means that a party, instead of stating the actual facts as they really occurred from which the liability called an implied contract arises, should state ti:e legal effect of those facts, and should thus aver a fiction, as was required by the former rules of plead- ing. In De Graw v. Elmore, 50 N. Y. 1, which was an action to recover hack the price paid to defendant for certain stocks alleged to have been fraudulently sold to the plaintiff, the complaint averred the fraud, the plaintiff's election to rescind, a tender of the stocks, and a demand of the price. In stating the original sale, it alleged that the purchase-price had been paid in money. On the trial, however, it appeared that the plaintiff did not pay any mniiey, but that defendant owed him S16,000 on a prior account growing out of contract, and that the price of the stocks, 5^9,000, was paid by giving the defendant credit for so much on this existing indebt- edness. Upon this evidence a motion for a nonsuit was denied, and the plaintiff had a verdict, which was set aside by the Court of Appeals. The opinion of the court, by Grover J., first states the settled rules of law as to the remedy of a party who has been induced b}' fraud to enter into a contract : he may affirm the contract, and bring an action for his damages ; or he may rescind, — restore to the other party all he has received, and recover all he has parted with. In this case the plaintiff elected to rescind, and to recover back the money paid. " It turns out that there was no money paid, but onl}' a credit given on a former debt; and the court below if the other facts were proved. This was error. The contract being rescinded, the plaintiff was restored to his original position and right. That right was to re- cover the account in an action upon con- tract. Upon the judgment so recovered the defendant could neither be arrested nor imprisoned. The credit could not be regarded as so much money paid for the purposes of this action, and, in that way, a judgment recovered which could be enforced by imprisonment. It is insisted that, under the code, forms of action are abolished, and that the facts showing the right of action need only be stated. This is correct; but it does not aid the plain- tiff. The facts are not stated. The plaintiff had a cause of action against the defendant upon an account for money ad- vanced for him. Instead of stating this cause of action, the allegation is in sub- stance that he paid him money as the price of stocks fraudulently sold by the defendant to the plaintiff, which contract has been rescinded by the plaintiff, and a return of the money demanded, which has been refused by the defendant. These causes of action differ in substance. The former is upon contract, the latter for tort ; and the law will not permit a re- covery upon the latter by showing a right to recover upon the former." In Pfiffner V. Krapfel, 28 Iowa, 27, 34, Cole J. very truly said : " Our system of pleading is essentially a fact system, intended to re- quire the parties injudicial proceedings to slate the facts of their claims, and advise the opposite party of the true nature and object of the suit. It is against the spirit and plain intent of our code to allow par- ties to claim as fruits of their litigation that which was not by the fair and obvious import of the pleadings put in issue and litigated between them." In the very re- cent case of Louisville, &c. Canal Co. '•. Murphy, 9 Bush, 522. 527, the Kentucky Court of Appeals stated the general doc- trine in the following manner : " While the ancient forms of pleading are abol- ished, still every fact necessary to enable the plaintiff in the action to recover must^ 36 562 CIVIL REMEDIES. paragraphs which discuss the mode of pleading in equitable ac- tions. This single and simple principle lies at the foundation of the entire reformed method introduced by the codes. When fully comprehended, it will be found to involve all the otlier requisites of the system. It distinguishes the new pleading from each of the three types which formerly prevailed, and which have already been described ; from the modes used in the equity and the civil- law courts, by wholly dispensing with any statements of proba- tive matter, and by limiting the averments to the fundamental facts which constitute the cause of action or the grounds of relief; and from the mode used in the common-law courts, by discarding all fictions, all technicalities, all prescribed formulas, and by re- quiring the material facts to be alleged as they actually existed, and not their legal effect, and still less the legal conclusions in- ferred from them. In discussing this fundamental principle, and developing from it the subordinate doctrines and practical rules which are involved in its general terms, its component elements must be separately examined, and the full import of each must be carefully ascertained. This analysis will lead me (1) to define the legal meaning of the term "cause of action " as used in the codes, and to point out the somewhat different senses which must be given to the phrase when it is applied to legal and to equi- table actions ; (2) to determine the nature of the facts which be alleged, and every essential averment required to make a declaration good at ilie common law upon general demurrer must be made in the petition. Tlie facts must be alleged so as to enahle the opposite party to know what is meant to be proved, and also that an issue may be framed in regard to the subject-matter of dispute, and to enable the court to pronounce the law upon the facts stated. Tiie dry al- legation of the facts in the petition, with- out setting forth tlie evidence of the truth of tiie statements made, is all that is re- quired." The Supreme Court of Oregon, in Bowen v. Emmerson, 3 Oreg. 452, ap- plied the general principle to the com- plaint in an action for money due upon simple contract, and stated the essential averments of such a pleading. The facts should be alleged showing that a contract existed l)etween the parties which had been broken ; the consideration should be mentioned, and the promise, if express; or if there was no express promise, then the facts from which a promise upon a sufficient consideration would be implied by the law ; and also the facts showing that the time for payment had expired, or that the contract had been broken in some other manner. In giving this con- struction to the code, the court declared that the common counts in assumpsit, as used in the old procedure, were not in accordance with these principles, and could not be resorted to. Similar quota- tions might be almost indefinitely mul- tiplied ; but these are sufficient to show the positions assumed by the courts in an- nouncing the most important doctrine of the reformed pleading. See, as further examples, Clark v. Bates, 1 Dakota, 42; Clay Co. V. Simonson, 1 id. 403, 430; Scott V. Robards, 67 Mo. 289 ; Dunn v. Eemington, 9 Neb. 82 ; Ingle v. Jones, 43 Iowa, 28G. GENERAL PRINCIPLES OF PLEADING. 563 " constitute the cause of action " in each of its two significations, and in this connection to point out the difference between the "issuable facts" averred in legal actions and the facts material to the remedy but not strictly "issuable" sometimes necessary to be alleged in equitable actions, and to explain the distinction in this respect which inheres in the modes of pleading employed in these two classes of suits ; and (3) to discuss the requirement that these material facts should be stated as they actually occurred or existed, and not their legal effect and meaning, and to display its full force and significance. The result of this analysis will then be applied in developing the various general rules which make up the reformed system of pleading. § 518. The term " cause of action " is employed by the fram- ers of the codes in several different connections ; but it must be assumed that in each of them it was intended to have the same signification, that, wherever used, it was designed to describe the same elements or features of the judicial proceeding called an action. The courts have never, so far as I have been able to discover, attempted any thorough and exhaustive discussion of the phrase, and determined its meaning by any general formula or definition ; and little or no aid will therefore be obtained in this inquiry from judicial interpretation. The few decided cases which venture upon a partial description were quoted in the last preceding section. In another instance, not there referred to, in which the plaintiff alleged that the legal title to certain lands was vested in the defendant, but that these lands were held by him in trust for the plaintiff, and demanded an execution of the trust by conveyance, &c., the cause of action was decided to be " the trust ; " the court declaring that in every money demand on contract " the debt " is the cause of action, and hold- ing that, in the case before them, the cause of action itself — the trust — was stated in the complaint, but that the facts consti- tuting it were not averred.^ § 519. The true signification of the term "cause of action" was carefully examined and determined in the second section of the present chapter ; and I shall not repeat the course of discus- sion there pursued, but shall simply recapitulate the conclusions which were reached. Every action is based upon some primary right held by the plaintiff, and upon a duty resting upon the 1 Horn V. Ludington, 28 Wis. 81, 83. 664 CIVIL REMEDIES. defendant corresponding to such right. By means of a wrong- ful act or omission of the defendant, this primary right and this duty are invaded and brolien ; and there immediately arises from the breach a new remedial right of the plaintiff, and a new remedial duty of the defendant. Finally, such remedial right and duty are consummated and satisfied by the j-emedy which is obtained through means of the action, and which is its object. Now, it is very plain, that, using the words according to their natural import and according to their technical legal import, the " cause of action " is what gives rise to the remedial right, or the right of remedy, which is evidently the same as the term " right of action " frequently used by judges and text-writers. This remedial right, or right of action, does not arise from the wrong- ful act or omission of the defendant — the delict — alone, nor from the plaintiff 's primary right, and the defendant's corre- sponding primary duty alone, but from these two elements taken together. The " cause of action," therefore, must always con- sist of two factors, (1) the plaintiff's primary right and the defendant's corresponding primary duty, whatever be the subject to which they relate, person, character, property, or contract ; and (2) the delict, or wrongful act or omission of the defendant, by which the primary right and duty have been violated. Every action when analyzed will be found to contain these two separate and distinct elements, and in combination they constitute the " cause of action." The primary right and duty by themselves are not the cause of action, because when existing by themselves, unbroken by the defendant's wrong, they do not give rise to any action. For this reason, that definition is clearly erroneous which pronounced the " debt " in an action on contract, or the " trust " in a suit to enforce a trust, to be the " cause of action." Much less can the delict or wrong by itself be the cause of action, because, without the primary right and duty of the parties to act upon, it does not create any right of action or remedial right as I have used the phrase. It is very clear from this analysis that the "cause of action" mentioned in the codes includes and con- sists of these two branches or elements in combination, — the primary right and duty of the respective parties, and the wrong- ful act or omission by which they are violated or broken. § 520. The first of these branches must always, from the nature of the case, be a conclusion of law. The law by its com- GENERAL PRINCIPLES OF PLEADING. 565 mands creates a rule applicable to certain facts and circumstances, by the operation of which, when these facts and circumstances exist, a right arises, and is held by the plaintiff, and a correspond- ing duty arises and devolves upon the defendant. While this first factor of the " cause of action " is therefore always a con- clusion or proposition of law, and results from the command of the supreme power in the State as its cause, it necessarily pre- supposes the existence of certain facts and events as the occasion of its coming into operation. A complete and exhaustive exhi- bition of it would thus require a statement of the legal rule itself applicable to the given condition of facts and circum- stances, and of the primary right and duty arising therefrom ; and also an allegation that the facts and circumstances them- selves to which the rule applies, and on the occasion of which the right and duty arise, do actually exist or have existed. If this principle were adopted in pleading, every cause of action would demand a mingled averment of legal rules, of the facts and events to which they apply, and of the rights and duties result- ing from the operation of the given rule upon the existing facts. In the second branch of the cause of action, there is, on the other hand, no element whatever of the law : it is simply and wholly matter of fact. It consists entirely of affirmative acts wrongfully done, or of negative omissions wrongfully suffered by the defendant ; and its statement in a pleading can be nothing more than a narrative of such acts or omissions. A primary right existed in favor of the plaintiff, and a corresponding duty devolved upon the defendant, of which an integral element is a legal rule : this right and this duty, if positive, called upon the defendant to do some act towards the plaintiff, the nature of which depended upon the nature of the right and duty ; if negative, they called upon the defendant to forbear from doing some act towards the plaintiff, the nature of which was determined in like manner. In the one case, the defendant's delict consists in his not doing the act which his duty obliged him to do ; and in the other case, in doing the act which his duty forbade him to do. In both instances, therefore, the wrong which constitutes the second factor or branch of the cause of action is a fact more or less complex, and not either wholly or partially a legal conclusion or rule. § 521. Such being the general nature and signification of the 566 CIVIL REMEDIES. term " cause of action," its different phases of meaning, when applied either to legal or to equitable actions, will next be pointed out and described. These differences do not extend to its essen- tial elements ; they are wholly formal, and they result entirely from the external differences sometimes subsisting between legal and equitable primary rights and between legal and equitable remedies. In a legal cause of action, the primary right of the plaintiff and duty of the defendant are generally simple in their nature as contradistinguished from complex ; that is, they call for some single, simple, and complete act or forbearance on the part of the defendant ; and when broken by the defendant's delict, the remedial right and duty which arise always demand a single, simple, and complete act to be done by the defendant ; namely, either the pa3anent of a sum of mone}'^ as debt or damages, or the delivery of possession of a specific chattel, or the delivery of pos- session of a specific tract of land, which constitute the only remedies that can be obtained by a legal action. It follows, therefore, from the nature of a legal primary right and duty and of a legal remedy, that the cause of action in a legal suit is always simple, and can be stated, and must necessarily be stated, in such a manner, that the remedial right, if it exists at all, will be shown at once in its completeness and certainty. Further- more, the legal primary right must necessarily depend upon a few facts; and these being all indispensable to its existence, the absence of even a single one will entirely invalidate the whole cause of action, and will show that no remedial right whatsoever has arisen. § 522. The foregoing description does not apply to equitable actions generally, although it undoubtedly does to some. In very many, and indeed in most, equitable causes of action, not merely the facts which are the occasion of the right, but the primary rights and duties themselves of the parties, are complex: it cannot be said of them that they must either wholly exist, or must be entirely denied ; they do not, in other words, demand a single specific act or omission on the part of the defendant, but a series, and often a very complicated series, of acts and omissions. In determining these primary rights and duties of the respective parties to an equitable suit, there must frequently be a settle- ment and adjustment of opposing claims; one must be modified by another ; and, as the result, a collection of rights and duties GENERAL PRINCIPLES OF PLEADING. 567 is established inhering in each of the htigants, and embracing a great variety of particulars. In certain classes of equitable actions it cannot be properly said that any wrong or delict has been committed by the defendant, or any violation of the plain- tiff's primary rights, unless an ignorance of those rights by all the parties, and a consequent hesitation on the part of all to act, can be deemed a technical wrong. These classes of suits are prose- cuted, not because there has been any denial of right or duty, but because in the absence of an accurate knowledge of their rights, or of power to arrange and adjust them by voluntary pro- ceedings, an appeal to the courts becomes necessary in order to solve the problem or to accomplish the adjustment. An action brought to construe a will may be mentioned as an illustration of the first class, and the ordinary suit for partition as an example of the second. Again : the remedies furnished by equity are sel- dom the single, simple, and complete awards of pecuniary sums, or of possession of lands or of chattels, as is the case with all legal judgments. They are complex and involved ; they often consist in an adjustment and award of partial reliefs to each of the parties ; they may provide for future and contingent emer- gencies ; and they are sometimes nothing more than an authorita- tive determination by the court of the primary rights themselves belonging to the plaintiffs and the defendants. This sketch shows very plainly that an equitable cause of action is often very different, in its external form at least, from any legal cause of action ; and although tlie same general principle of pleading applies to each, yet it must undergo some modification in that application. The facts constituting the cause of action are to be stated in an equitable as well as in a legal action ; but facts do not constitute the equitable cause of action in the same sense nor in the same manner that they constitute the legal cause of action. § 523. The result thus reached leads to the second subdivision of the present inquiry ; namel}', the nature of the facts which con- stitute the cause of action when that term is applied both to legal and to equitable suits. As has already been remarked, the first branch or division of the cause of action contains three distinct elements, two of them legal, and the other of fact ; the second branch consists wholly of facts ; while the remedial right which flows from the two is of course a conclusion of law. If the theory 568 CIVIL REMEDIES. of pleading required that all these elements should be expressed, then the phiinliff 's comjjlaint or petition would always comprise the following averments : (1) The rule of law applicable to certain facts from whicli his primary right and the defendant's primary duty arise ; (2) the existence of the facts to which such rule ap- plies, and which are the occasion of the right and duty ; (3) the primary right and duty themselves which spring from the opera- tion of such rule upon the given facts, — these three subdivisions forming the first branch of the " cause of action ; " (4) the facts constituting the violation of the primary right and duty ; that is, the wrongful acts or omissions of tlie defendant, — this statement being the second branch of the " cause of action ; " (5) the reme- dial right held by the plaintiff, and the remedial duty devolving upon the defendant, which result from the " cause of action," and are wholly conclusions of law. In this manner everything which enters into the phiintiff "s case, fact and law, would be spread upon the record. A bill of complaint in chancery, prior to any statu- tory modification, was substantially constructed upon this plan, although the various subdivisions were not so logically separated and arranged. The mode of pleading which prevailed in the superior courts of Scotland seems to have been in complete con- formity with this theory. § 524. The reformed system, following in this respect the com- mon-law method, dispenses with several of these elements which make up the plaintiff's entire ground for relief: it wholl}'^ rejects all the subdivisions which are mere legal rules or conclusions, and admits only those that consist of the facts to which the legal rules appl}', and which are the occasion whence the conclusions arise. It assumes that the courts and the parties are familiar with all the doctrines and requirements of the law applicable to every con- ceivable condition of facts and circumstances, so that, when a certain condition of facts and circumstances is presented to them, tliej' will at once perceive and know what are the primar}' and the remedial rights and duties of both the litigants ; and this knowl- edge being complete and perfect, it is a useless incumbrance of the record to spread out upon it the legal propositions and inferences with which every one is assumed to be acquainted, A complaint or petition, therefore, drawn in accordance with this theory, must omit (1) the legal rule which is the direct cause of the primary right and duty, (2) the primary right and duty themselves which GENERAL PRINCIPLES OF PLEADING. 5G9 are the results of this rule acting upon the given facts, and (3) the remedial right and duty which accrue to the plaintiff; and it must only state (1) the facts which enter into the first branch of the cause of action and are the occasion of the primaiy right and duty, and (2) i\\Q facts which constitute the defendant's wrongfid act or omission, — that is, the delict which is the second branch of the cause of action. As will be seen in the sequel, a statement of the legal rule, or of the primary legal right and duty without the facts to which they apply, and which are the occasion for their existence, is sufficient : it alleges no cause of action, and cannot be made the basis of an issue; while such a statement in addition to those facts is surplusage, and, if the rules of pleading are strictly enforced, will be struck out on motion, and will, at all events, be wholly disregarded. We thus arrived at the fii'st gen- eral doctrine in relation to the facts constituting the cause of action ; namely, the facts which are among the elements of the cause of action, that is, those which are the occasion for the primary right and duty to arise, and those which form the breach of such right and duty must be alleged, to the entire exclusion of the other elements that enter into the cause of action, — the legal rules, and the legal rights and duties of the parties. § 525. Before proceeding to the second general doctrine, I shall notice an apparent modification of or departure from the one just announced, which occurs in a certain class of actions. In a very great majority of instances, the complaint or petition must narrate in an express manner those facts, which, as I have shown, form an element of the first branch or division of the cause of action, — those facts to which the general rule of law applies in order to create the primary right and duty of the parties. In these cases, therefore, the pleading does actually contain, in direct and positive terms, the allegations of two dis- tinct groups of facts : first, those which are the occasion of the primary right and duty ; and secondly^ those which are the breach of such right and duty, — the wrong or delict. There is nothing of fact left to be understood or assumed. In another class of cases, however, the first group of facts is not expressly averred ; it is omitted ; it is assumed to exist in the same manner that the legal rules are assumed; and the complaint or petition actually contains only those facts which constitute the breach, — the wrongful act or omission of the defendant. The peculiar class of 570 CIVIL REMEDIES. actions thus mentioned do not, however, depart from or violate the theory of pleading before described, but are constructed in exact conformity with it. The facts upon which the primary right and duty of the parties depend are omitted, because they are in accordance with the universal exjDerience of mankind, and must therefore be presumed to exist, so that their averment, like the averment of legal rules, is unnecessary. A simple and fa- miliar illustration is the action to recover damages for an assault and battery. The primary right of the plaintiff is the right to his own person, free from molestation or interference by any one. This right, being a legal conclusion, is of course not averred. The fact upon which it depends is simply that the plaintiff is a human being, existing and possessing the common faculties and attri- butes of humanity. Since this fact conforms to the universal experience, its averment in the complaint or petition is needless ; it is tacitly assumed ; and tlie pleading consists wholly in state- ments of the wrongful trespass committed by the defendant. Another illustration is the action for slander or libel. The facts upon which the primary right and duty of the parties depend is the existence of the plaintiff as a member of societ}*, and as pos- sessing a character among his fellow-men. Although the com- mon-law declaration contained averments of the plaintiff's repu- tation, they are unnecessary, and the complaint or petition may contain merely an account of the defamatory words spoken or published by the defendant and the other elements of the wrong. It may be stated as a general proposition, that, in actions brought for injuries to the plaintiff's own person or character, the facts which enter into the first branch of the cause of action, and are the occasion whence the primary right and duty of the parties arise, need not be expressly averred ; they are assumed to exist, and nothing but the delict need be alleged. Notwithstanding this abridgment, the pleading in such cases is based upon the same theory and governed by the same rules as the pleading in all other classes of actions. § 526. The second of the general doctrines included within the principle under consideration is, that, in stating the two required groups of facts, those important and substantial facts alone sliould be alleged which either immediately form the basis of the primary right and duty, or which directly make up the wrongful acts or omissions of the defendant, and not the details of probative mat- GENERAL PRINCIPLES OF PLEADING. 571 ter or particulars of evidence by which these material elements are to be established. This doctrine applies to all classes of actions, and if strictly enforced it would render the pleadings simple, and the legal issues at least clear, certain, and single. The courts have been unanimous in their announcement of the rule, and the decisions already quoted, as well as those to be cited in subsequent paragraphs, will show the variety of circum- stances, allegations, and issues to which it has been applied. There can be no real difficulty, if the action is legal, in distin- guisliing between the facts which are material and issuable and should therefore be averred, and those which are merely pro- bative or evidentiary and should be omitted. Since the legal primary right and duty are always simple, and demand from the defendant the performance or the omission of some single and well-defined act, they will always depend, for their occasion, upon a few positive, determined, and certain facts, all of which are necessary to their existence, so that neither of these facts could be modified, and much less could be omitted, without entirely defeating the right and duty, and with them the cause of action itself. The same is true of the facts which make up the defend- ant's delict or wrong. In order, therefore, that any given legal cause of action should exist, in order that any given remedial right or right of action should arise, these determinate, un- changed, and positive elements of fact must all conspire to pro- duce that result, and must be alleged ; they literally "constitute" the cause of action, and form the " material " or " issuable " aver- ments spoken of by the courts. The subordinate facts, on the other hand, which make up the probative matter and tlie details of evidence, may vary indefinitely in their nature ; and so long as they perform their function of establishing the "issuable" averments, the cause of action will not be affected. To illustrate by a very familiar example : In an action to recover damages for the breach of a written contract, tlie allegation that the defend- ant executed the agreement is material and issuable ; it cannot be modified, and much less abandoned, without destroying the whole cause of action. Its denial raises a direct issue, to main- tain or disprove which evidence can be offered. The subordinate probative matter by which this averment is established may vary according to the exigencies of the case, and a resort to or failure with one method will not prevent the use of another. The plain- 572 CIVIL REMEDIES. tiff might rely upon the defendant's admissions that he executed the paper, or upon the testimony of a witness who saw him sign it, or upon the opinions of persons who are acquainted with his handwriting, and who testify that the signature is his. One or the other, or even all, of these means might be resorted to, and the material fact to be proved would remain the same. If, how- ever, instead of directly averring that the defendant executed the written contract, the plaintiff should allege that the defendant had admitted his signature to be genuine, or that a specified indi- vidual asserts that he saw the instrument signed, or that persons familiar with his handwriting declare the signature to be his, it is plain that neither of these statements would present a material issue ; that is, an issue upon which the cause of action would de- pend. This familiar illustration covers the whole field of legal actions. The allegations must be of those principal, determinate, constitutive facts, upon the existence of which, as stated, the en- tire cause of action rests, so that, when denied, the issue thus formed with each would involve the whole remedial right. Every legal cause of action will include two or more distinct and sepa- rate facts ; and in order that these facts may be issuable, the failure to prove an}- one of them when denied must defeat a recovery. If this fundamental doctrine of the reformed pleading is fairly and consistently enforced in actual practice, the issues presented for trial must necessarily be simple and single. Single- ness and simplicity of issues do not require that the cause should contain but one issue for the jury to decide, one afiirmation and denial the determination of which disposes of the whole contro- versy. This result of the common-law special pleading is often described by enthusiastic admirers of the ancient system, but it was seldom if ever met with in the actual administration of jus- tice. The issues are single when each consists of one and only one material fact asserted by the plaintiff and controverted by the defendant, of such a nature that its affirmative decision is essential to the cause of action, while its negative answer defeats a recovery. The reformed theory of pleading contemplates and makes provision for such issues ; and if its jn'ovisions are faith- fully carried out, the disputed questions of fact would be as sharply defined, and as clearly presented for decision to juiies, as can be done by any other possible method. § 527. The discussion thus far of this particular doctrine has GENERAL PRINCIPLES OF PLEADING. 573 been confined to legal actions ; are any modifications necessary to be made in its statement when applied to equitable suits ? The differences in form between legal causes of action and reme- dies on the one side and equitable causes of action and reliefs on the other have been described, and need not be repeated. By vir- tue of these inherent differences, the material facts which must be alleged in an equitable suit are often, in their nature and effects, quite unlike the " issuable " facts which constitute a legal cause of action. In the legal action the issuable facts are few ; in the equitable suit the material facts upon which the relief depends, or which influence and modify it, are generally numerous, and often exceedingly so : in the former they are simple, clearly de- fined, and certain ; in the latter they may be and frequently are complicated, involved, contingent, and uncertain. These are mere differences of external form, but there is another much more im- l)ortant, and which more nearly affects their essential nature. The legal cause of action so completely rests for its existence upon the issuable facts, that if any one of them when denied fails to be established by proof, the plaintiff's entire recovery is defeated thereby, a result which is recognized by all the judicial decisions as involved in the very definition of a legal issuable fact. An equitable cause of action may undoubtedly rest in like manner upon a given number of determinate facts. In general, however, as has already been fully explained, facts may exist material to the recovery in a certain aspect, or in a certain con- tingency, or to a certain extent, and which therefore enter into the cause of action, but which are not indispensable to some kind or measure of relief being granted to the plaintiff. These facts if established will determine the character, extent, and complete- ness of the remedy conferred by the court ; but if they are not established, the remedy is not thereby wholly defeated ; it is only in some particulars modified, limited, or abridged. Since these classes of facts assist in determining the nature, amount, and details of the relief to be awarded, they in part at least " con- stitute the cause of action " within the true meaning of the term, and must be alleged. While the material facts of an equita- ble cause of action differ in the manner thus described from the issuable facts of a legal cause of action, the single and compre- hensive principle of the reformed procedure embraces and con- trols both classes of suits. Mere evidence, probative matter as 574 CIVIL REMEDIES. contradistinguished from the principal facts upon which the re- medial right is based, are no more to be spread upon the record in an equitable than in a legal action. A distinction inheres in the nature of the causes of action, and from this distinction the facts material to the recovery in an equitable suit may be numer- ous, complicated, affecting the right of recovery partially instead of wholly, modifying rather than defeating the remedy if not established ; but still they are the material facts constituting the cause of action, and not mere details of evidentiary or probative matter. § 528. The existence and necessity of this distinction between the material facts to be alleged in legal and equitable actions are fully recognized and admitted by judicial opinions of the highest authority.^ It also prevails, I believe, universally in practice. By no judge has it been more accurately and exhaustively dis- cussed than by Mr. Justice S. L. Selden in two early cases which, although without the binding authority of precedents, have the force of cogent and unanswerable reasoning.^ With the practical conclusions in reference to the nature of the material facts that should be averred in an equitable complaint or petition at which Mr. Justice Selden arrives, I entirely concur ; his course of argu- ment upon which those conclusions are based is the same in sub- stance which has been pui-sued in the foregoing paragraphs. I wholly dissent, however, from his inference that these results are not contemplated by and embraced within the single and compre- hensive principle announced by the codes, that the facts con- stituting the cause of action, and they alone, must be stated. This inference does not follow from his argument, nor from the final positions which he reaches ; it is wholly unnecessary ; and it has been rejected by judges who have accepted and main- tained the very doctrines concerning the nature of equitable pleading under the code which he so ably supports. It is onl}- by giving to the phrase "facts constituting the cause of action" a narrow interpretation, which it was plainly not intended to receive, that the material facts of an equitable cause of action can be thus widely separated from the issuable facts of a legal one. Both are aptly described by the phrase which is found in ' See People v. Ryder, 12 N. Y. 433, "- Rochester City Bank v. Suydam, 437 ; Horn v. Ludington, 28 Wis. 81, 83 ; 5 How. Pr. 216 ; Wooden v. Waffle, 6 White V. Lyons, 42 Cal. 279, 282. How. Pr. 145. GENERAL PRINCIPLES OF PLEADING. 575 all the codes. The averment of issuable facts in one chiss of cases, and of the material facts afifecting the remedy in the other class, without the details of evidence or probative matter relied upon to establish either, is a necessary consequence of the single. comprehensive principle which underlies the whole reformed system. § 529. The third and last point remains to be considered in this general discussion. The issuable facts in a legal action, and the facts material to the relief in an equitable suit, should not only be stated to the complete exclusion of the law and the evi- dence, but they should be alleged as they actually existed or occurred, and not their legal effect, force, or operation. This conclusion follows as an evident corollary from the doctrine that the rules of law and the legal rights and duties of the parties are to be assumed, while the facts only which call these rules into operation, and are the occasion of the rights and duties, are to be spread upon the record. Every attempt to combine fact and law, to give the facts a legal coloring and aspect, to present them in their legal bearing upon the issues rather than in their actual naked simplicity, is so far forth an averment of law instead of fact, and is a direct violation of the principle upon which the codes have constructed their system of pleading. The peculiar method which prevailed at the common law has been fully de- scribed ; it was undoubtedly followed more strictly and completely in certain forms of action than in others; in a few instances — as in a special action on the case — the declaration was framed in substantial conformity with the reformed theory. But in very many actions, and those in constant use, the averments were almost entirely of legal conclusions rather than of actual facts. The familiar allegations that the plaintiff had " bargained and sold," or " sold and delivered," that the defendant " was indebted to the plaintiff," or "had and received money to the plaintiff's use," and very frequently even the averment of a promise made by the defendant, may be taken as familiar illustrations from among a great number of other similar phrases which were found in the ordinary declarations. Rejecting as it does the technicali- ties, the fictions, the prescribed formulas, and the absurd repeti- tions and redundancies, of the ancient common-law system, the new pleading radically differs from the old in no feature more important and essential than this, that the allegations must be of 576 CIVIL REMEDIES. dry, naked, actual facts, while the rules of law applicable thereto, and the legal rights and duties arising therefrom, must be left entirely to the courts. While this doctrine has been uniformly recognized as correct when thus stated in an abstract and gen- eral manner, it has sometimes been overlooked or disregarded in passing upon the sufficiency and regularity of particular plead- ings. Whether those decisions which have permitted the com- mon counts to be used as good complaints or petitions, and those which have required the promise implied by law to be expressly averred as though actually made, are in conformity with this doctrine, will be considered in subsequent paragraphs, and the various cases bearing upon the question will be cited and dis- cussed. It is sufficient for my present purpose to state the doctrine in its general form, and to reserve its application for another portion of the chapter. § 530. As the foregoing analysis has been exclusively based upon the text of the codes, I shall now test the correctness of its conclusions, and illustrate the extent and application of its general doctrines, by a reference to the decided cases, following in the arrangement of the subject-matter the order already adopted. Tlie rule that facts alone are to be stated, to the ex- clusion of law and of the legal rights and duties of the parties, has been uniformly accepted by the courts, and has been enforced in every variety of issues and of special circumstances. In a very recent decision, this general doctrine was expressed in the fol- lowing language : " Matter of law is never matter to be alleged in pleading. No issue can be fiamed upon an allegation as to the law. Facts only are pleadable, and upon them without allega- tion the courts pronounce and apply the law. This is true alike in respect to statutes and to the common law." ^ Among the 1 People V. Commissioners, &c., 64 have, in pleading, admitted tlie obligation N. Y. 276, 279. The question was as to of the law," and then adds the language the validity of a certain statute. The quoted in the text. See also Common- defendants, in their pleading, had ad- wealth v. Cook, 8 Bush, 220, 224 ; Clark mitted its validity, and that they were t-. Lineberger, 44 Ind. 22.3, 228, 229. The required by it to do the acts sought to be material, issuable facts, not mere lepal or enforced by the action, and had nowhere other conclusions, — as illustrations see raised any objection on the record. The Pittsburgh, &c. R. R. v. Keller, 49 Ind. adverse party claimed that tliis admission 211; Tronson v. Union Lumber Co., 38 precluded tl)e defendants from raising the Wis. 202; Page v. Kennan, 38 id. 320; question at the argument. Johnson J. Surginer i». Paddock, 31 Ark. 528; Schil- said : " The objection to its |tliis ques- ling v. Romingcr, 4 Col. 100; Clay Co. v. tion] being raised is that the defendants Simonson, 1 Dakota, 403, 430; Scott v. GENERAL PRINCIPLES OF PLEADING. 577 allegations which have been condemned as legal conclusions, and for that reason as forming no material issue, and which have been rejected as failing to state any element of a cause of action, the following are given as illustrations : In an action to dissolve a partnership, for an accounting, &c., the averment that on a day named, and for a long time previous thereto, the defendant and the plaintiffs " were partners doing business under the firm name of T. & C. ; " ^ in an action to restrain the removal of a county seat under a statute which was claimed to be special and there- fore void, the allegation that " said act is a special law in a case where a general law of uniform operation throughout the State exists, and can be made applicable ; " ^ in an action apparently to recover damages for the wrongful interference with the plain- tiff's possession of certain land, the averment that the plaintiff "was entitled to the exclusive possession of " the premises in question ; ^ in an action against a subscriber to the stock of a cor- poration to be organized, brought to recover the amount of his subscription, an averment that the " company was legally or- ganized, into which organization the defendant entered."^ Robards, 67 Mo. 289; Botey v. Griswold, 2 Mont. 447 ; Peterson v. Roach, 32 Ohio St. 374 ; Pittsburgh, &c. R. R. v. Moore, 33 id. 384 ; Scott v. B. & S. W. R. R., 52 Iowa, 18; Cooper v. French, 52 id. 531 ; Ockenden v. Barnes, 43 id. 615 ; North Kansas, &c. Co. r. Oswald, 18 Kans. 336 ; Sheridan v. Jackson, 72 N. Y. 170, 173; Stack r. Beach, 74 Ind. 571 ; Leach v. Rhodes, 49 Ind. 291 (in action on a con- tract a general averment that there was a full and valuable consideration, is a mere conclusion of law, and not sufficient ; sed qu. is not this the issuable allegation of fact ? ) ; Moore v. Hobbs, 79 N. C. 535 ; Estate of David Gharky, 57 Cal. 274; Payne v. McKinley, 54 id. 532. Tlie complaint need never anticipate any de- fences wliich may be set up in the an- swer, nor contain allegations to meet them. Caflin v. Taussig, 7 Hun, 223; Metrop. Life Ins. Co. v. Meeker, 85 N. Y. 614 : Cohen v. Continental Life Ins. Co., 69 id. 300, 804 ; Roth v. Palmer, 27 Barb. 652; Kayser v. Sichel, 34 id. 89; Bliss V. Cottle, 32 id. 322 ; Wygand v. Sichel, 3 Keyes, 120. 1 Groves v. Tallman, 8 Nev. 178. A general demurrer to the complaint was sustained, the court holding that this alle- gation was a mere conclusion of law, and that the executed agreement of partner- ship should have been set forth. The decision, as it seems to me, is entirely wrong : the plaintiff had stated the is- suable fact, while the court demanded the evidence : therfi may have been no written contract of partnership. See Kelsey v. Henry, 48 Ind. 37, which fully sustains the views expressed in this note. ^ Evans r. Job, 8 Nev. 322, the court further liolding that, when the complaint alleges a mere conclusion of law, no answer to such allegation is necessary. 3 Garner v. McCullough, 48 Mo. 318. The petition did not state that the plain- tiff was or had ever been in possession, and failed to disclose the nature of his claim or the source of his right, the alle- gation quoted being the sole assertion of a right in the land. It was held that no cause of action was stated, and all evi- dence should be excluded at the trial, although the defendant had answered. * Hain v. North West. Gravel R. Co., 41 Ind. 196. This averment was held to 37 578 CIVIL REMEDIES. § 531. Also, in an action to recover on a policy of fire insur- ance, by the terms of which the sum assured did not become paj'able until certain acts had been done by the plaintiff as con- ditions precedent, an averment merely '' that the whole of said sum is now due ; " ^ in an action to restrain the collection of a tax on the plaintiff's land, an allegation that the land " is by the laws of the State exempt from taxation ; " ^ in a suit to recover a stock subscription to a corporation, an allegation that the party became a subscriber to the capital stock "by signing and delivering" a specified agreement ; ^ an allegation " that the title of the plaintiff to said lots by virtue of said tax sale is invalid, from an irregu- larity in the notice of such tax sale ; " * in an action to set aside a judgment for a tax, an allegation " that no notice was given of the said proceedings, or any of them," which resulted in the tax ; ^ in an action brought to recover land claimed by inheritance from a former owner, the allegation that the plaintiff was " one of the heirs of" such former owner ; ^ in an action on a contract where the defendant's liability depended upon the performance of cer- tain conditions precedent by a third person, the mere allegation, without stating any performance by such person, that "the de- fendant neglected and refused " to perform the stipulated act on his part " according to the terms of said agreement." " The law of another State or country, however, is regarded, for purposes of have raised no issue, citing Indianapolis, 254, 258. In an action against tlie com- &c. R. R. !'. Robinson, 35 Ind. 380. pany, it set up tlie demand mentioned in 1 Doyle V. Phoenix Ins. Co., 44 Cal. the text as a setoff or counter-claim, ai- 264,208. The court having decided that leging the plaintiff's liability in tlie man- the complaint did not suthciently aver a ner described. A judgment in favor of performance of the conditions precedent the defendant was re verserl, because there by the plaintiff, and so failed to state a was no averment in the answer which cause of action, added : " The allegation made out a cause of action, citing Barron that 'the sum is now due' may be laid v. Frink, 30 Cal. 486; Burnett i'. Stearns, out of the case, inasmuch as that is a 33 Cal. 473. conclusion of law merely." « Webb i\ Bid well, 15 Minn. 479, 485. 2 Quinney v. Stockbridge, 33 Wis. 505. 5 Stokes i-. Geddes, 46 Cal. 17. There was no other statement siiowing e Larvie i'. Hays, 7 Bush, 50, 53. This that the land was exempt ; and, in order allegation was held not to be admitted that it should be so, certain special cir- by a failure to deny it, citing Banks v. cumstanccs must have existed. The Johnson, 4 J. J. Marsh. 649; Currie v. averment was held to be of no force what- Fowler, 5 J. J. Marsh. 145. ever, unless accompanied by allegations 7 Wilson ;-. Clark, 20 Minn. 367, 369. of the proper facts ; and a preliminary This was declared to be a mere conclu- injunction was therefore dissolved upon sion of law ; and as no facts were stated the complaint alone. from which it could be inferred, it was a 8 Wheeler v. Floral Mill Co., 9 Nev. nullity. GENERAL PRINCIPLES OF PLEADING. 579 pleading, fis matter of fact, and must be averred with so much distinctness and particularity that the court may, from the state- ment alone, judge of its operation and effect upon the issues pre- sented in the cause. Thus, in an action upon a note executed and made payable in Illinois, the allegation, " that by the law of Illinois the defendant was indebted to the plaintiff in the amount of such note," was held insufficient to admit evidence of what the Illinois law is in reference to the subject-matter.^ In Indiana the averment, that the defendant " is indebted " to the plaintiff in a specified amount, is held to be sufficient. This ruling, however, is not based upon the general principles of pleading announced by the codes, but upon certain short forms authorized by the legis- lature, which were copied from the ancient common counts in assumpsit.^ Examples similar to the foregoing might be indefi- nitely multiplied ; but these are sufficient to illustrate the action of the courts, and to show how firmly they have adhered to the doctrine that facts, and not law, must be alleged, and that the averments of legal conclusions without the facts from which they have arisen form no issues, state no causes of action, admit no evidence, and do not even support a verdict or judgment, — in short, that they are mere nullities. § 532. Pursuing the order before indicated, the following cases will explain and illustrate the second doctrine that the principal, material, and issuable facts must be pleaded, and not the details of evidentiary or probative matter from which the existence of the final facts is inferred. The language employed by the court in an action brought to restrain the execution of tax deeds of the plaintiff's land, on account of illegality in the proceedings, fur- nishes a very instructive example of such averments : " The plaintiff relied upon the absence of preliminary proceedings essen- tial to the validity of the tax sales. But instead of averring, either of his own knowledge or upon information and belief, that such 1 Roots V. Merriwether, 8 3ush, 397, 2 Johnson v. Kilgore, 39 Ind. 147. 401. As a foreign law is a matter of fact, Tliese statutory forms, in m,y opinion, the court does not take judicial notice of violate the fundamental principles of it, and if different from that of the forum, pleading adopted hy the reformed pro- and if it must be invoked in order to cedure, more so even than the ancient make out the cause of action, the par- common counts. This question will be ticular doctrine or rule relied upon must particularly examined in a subsequent be fully and accurately stated in the paragraph, pleading. See Woolsey v. Williams, 34 Iowa, 413, 415. 580 CIVIL REMEDIES. proceedings were not had, he only averred that he had searched in the proper offices for the evidence that they were had, and failed to find it. The only issue that could be made upon such an allegation would be whether he had searched and found the evidence or not, which would be entirely immaterial." ^ In plead- ing certain classes of issues, it is undoubtedly difficult sometimes to discriminate between the final facts and the probative matter. Tliis is especially true in charging fraud, which must almost inva- riably consist of many different circumstances, some affirmative and some negative ; but the rule should nevertheless be applied. " It is not necessary nor proper for the pleader to set out all the minute facts tending to establish the fraud ; the ultimate facts, and not the evidence, should be pleaded." ^ An allegation of mere evi- dentiary matter, and not an ultimate or issuable fact, is surplus- age ; it need not be controverted, and is not admitted by a failure to deny. As was said in a recent decision, " the matter averred is not an ultimate fact ; that is to say, a fact which is required to be stated in a complaint, and which, if not denied by the answer, would stand as' admitted ; but it is merely matter of evidence which might be stricken out of the complaint." ^ If in addition to the issuable or material facts the pleading also contains the details of evidence tending to establish them, these latter aver- ments should be stricken out on motion as surplusage.^ There is a class of allegations which are necessar}', but which are not 1 Rogers v. Milwaukee, 13 Wis. 610, 3 Gates v. Salmon, 46 Cal. 361, 379. 611. If the plaintiff had alleged that the See also, as further illustrations, Clay proceedings in question had been omitted, Co. v. Simonson, 1 Dacota, 403, 430; the facts stated by him would have been Scott v. Robards, 67 Mo. 289 ; Terry v. proper evidence in support of the aver- Musser, 68 id. 477 ; Cook v. Putnam Co., ment. This case exhibits very clearly the 70 id. 668 ; Kansas Pac. R. R. v. McCor- distlnction between the ultimate issuable mick, 20 Kans. 107; Harris ?;. Hillcgass, fact wliicli cannot be changed in order 54 Cal. 463; Elder v. Spinks, 53 id. 293; to make out a given cause of action, and Dambman v. White, 48 id. 439; Schilling the probative matter by which such fact v. Rominger, 4 Col. 100 (mode of allega- is established, and which may vary ac- tion in equitable actions). The complaint cording to the exigencies of the case. Of need not anticipate and meet expected course the omission of the preliminary defences. Clatlin v. Taussig, 7 Hun, 223, proceedings must be proved, but it could and cases cited ; Metrop. Life Ins. Co. v. be proved by many different kinds of Meeker, 85 N. Y. 614; Cohen v. Conti- evidence. Tliis distinction is a certain nental L. Ins. Co., 69 id. 300, 304. test by which to determine whether any * King v. Enterprise Ins. Co., 45 Ind. given fact is issuable and material, or is 43 ; Van Sfchaick v. Farrow, 25 Ind. 310; only probative. Lytle v. Lytle, 37 Ind. 281. 2 Cowin V. Toole, 31 Iowa, 513, 510 ; Singleton v. Scott, 11 Iowa, 589. GENERAL PRINCIPLES OF PLEADING. 581 issuable in the ordinary meaning of this term as already defined, — that is, the cause of action is not defeated by a failure to prove them as averred, and an omission to deny them does not admit their truth, but still they must be stated, and a complaint or peti- tion would be insufiicient, or at least incomplete, without them. This class includes in general the statements of time, place, value, quantity, amounts, and the like ; although, under peculiar cir- cumstances, the allegation of any one of these matters may be- come in every sense of the term issuable and material. Ordinarily, however, this is not so. The rule thus given prevailed in the common-law pleading, and has not been changed by the new pro- cedure. Thus, for example, in an action for the conversion of chattels, the statement of their value is not issuable ; failure to deny does not admit its truth, nor exclude evidence as to the real value.^ § 533. The decisions which follow in this and one or two sub- sequent paragraphs are cited in order to furnish some examples of allegations which have been judicially tested and pronounced sufiicient or insufficient, as the case may be. A few such par- ticular instances will better illustrate the general doctrine of the codes, and will more clearly explain the requisite form and nature of issuable and material averments than can be done by any other method, either of description or of argument. In an action upon a guaranty of a note, the objection was raised by the defendant that the complaint failed to state any cause of action. It set out a note payable to the defendant which fell due October 1, 1867, and alleged " that on the 9th of October, 1867 [after it was due], the defendant, for value received, transferred said note to the plaintiff, and then and there guaranteed the payment thereof by his written guaranty, indorsed thereon as follows : ' For value received, I hereby guarantee the payment of the within note when due, October 9, 1867 ; ' and although said note became due and payable before the commencement of this action, yet the said makers of said note, nor the said defendant, have paid the same, nor any part thereof ; that the plaintiff is the owner and holder," &c., stating the amount due, and making the usual demand of judgment. The defendant claimed that the complaint did not state a cause of action because it failed to allege that the amount due is due on the note and guaranty or on the guaranty, 1 Chicago, &c. R. R. v. N. W. Union P. Co., 38 Iowa, 377, 382. 582 CIVIL REMEDIES. or from the defendant to the plaintiff, and failed to allege that the maker had not paid the note; also because the guaranty being executed after the note became due, and stipulating payment wAew due, is impossible and void. After disposing of the last objection by holding that the guaranty was payable at once, the court, by applying the rule of favorable construction prescribed by the code, pronounced the complaint sufficient.^ In an action against a railroad company for killing the plaintiff's horses, which had strayed upon the track and been run over, the only negligence charged upon the defendant at the trial was in reference to its construction and maintaining of its fences through which the animals escaped and reached the track. The sole allegation of the complaint was that the defendant " so carelessly and negli- gently ran and managed the said locomotive and cars, and the said railroad track, grounds, and fences, that its said locomotive and cars ran against and over the said horses." It was not even stated that the animals escaped through the fences. In pro- nouncing upon the sufficiency of this averment, it was said by the court that the best possible construction for the plaintiff which could be put upon the language was " that the defend- ant so negligently managed the feyices that its train ran over the horses," and that, even under the liberal rule prescribed by the codes, this could not be taken as alleging a cause of action for negligently constructing the fences, or suffering them to be out of repair, so that the animals escaped through them on to the track.^ § 534. In an action for trespass to land, the petition stated that " plaintiff by virtue of a contract with one E. was entitled to the exclusive possession of" the premises, "that subsequently to this contract the premises were purchased by the defendant 1 Gunn V. Madigan, 28 Wis. 158, 1G3, that it is a good pleading. It sets out the 164. The opinion of the court, after contract and the alleged hreach thereof, stating the positions of the defendant's the interest of tiie ])laintiff and the lia- counsel proceeded : " The rule prac- bility of the defendant, and demands the ticaily applied by him is, that a pleading proper judgment. Ought we to demand must be construed most strictly against more?" The only real defect of the the pleader. He seems to have forgotten pleading is, that, from the grammatical that this stern rule of the common law is construction of a single clause, it does not repealed by the code, and in its place a allege that the note was not paid. " Yet more beneficent one has been enacted, the said makers of said note, nor the Looking at the complaint in the light of said defendant, have paid the same." It this new rule, it seems to us that it states is thus made to aver that the makers Aave a cause of action. Indeed, we are not paid it. quite sure that it is necessary to invoke ^ Antisdel v. Chicago & N. W. R. R., the aid of that rule to enable us to hold 26 Wis. 145, 147. GENERAL PRINCIPLES OF PLEADING. 583 with knowledge of the plaintiff's rights, that the defendant forci- bly took possession and excluded the plaintiff," but did not allege that the plaintiff was ever in possession, nor the relation which E. bore to the land, nor the terras of the contract with him, nor that defendant's acts were wrongful. This petition, it was held, stated, no cause of action, and was properly dismissed at the trial. ^ In an action to foreclose a mortgage of land, the plaintiff obtained a preliminary injunction to restrain the removal of machinery which had been so affixed to the land as to become part of the freehold. A motion was made on the pleadings to dissolve the injunction on the ground that the complaint contained no allega- tions which could be made the basis of that relief. The clause relied upon by the plaintiff was the following : That the defend- ants had erected on the premises a manufacturing establishment, " and put therein machinery which had become part and parcel thereof," and that " among other machinery which they put therein was a steam-engine," &c., enumerating other articles. This was held to be a sufficient averment that the engine, &c., had become part of the realty. If the defendants desired a more explicit allegation they should have moved for that purpose, the manner of raising the objection which they had adopted being tantamount to a demurrer for want of sufficient facts.^ The com- plaint, in an action on a note against the maker and indorsers, alleged several successive indorsements until it was thus indorsed and transferred to one M., but omitted to state an indorsement and transfer from him to the plaintiff. It contained, however, the following averment, "that the plaintiff is now the lawful owner and holder of the said note, and the defendants are justly indebted to him thereon," &c. This was held to be a sufficient statement of the plaintiff's title ; the defect, if any, was .one which should be cured by motion to make the pleading more definite and certain.^ The material portion of the complaint in an action for work and labor simply stated that the plaintiff per- formed work " for the defendant at an agreed price of |26 per 1 Garner v. McCulIough, 48 Mo. .318. would not defeat the cause of action ; it 2 Kimball v. Darling, >i2 Wis. 675, 684. would simply modify and limit tlie amount The allegation in question is an admira- of relief to be obtained by the plaintiff; ble illustration of the distinction between but it was certainly a necessary allegation facts material to the remedy in equity for that purpose. suits and issuable facts in legal actions. * Reeve v. Fruker, 32 Wis. 243. A failure to prove this special averment 584 CIVIL REMEDIES. month." It was objected on demurrer that no request on the part of the defendant was alleged, but the pleading was held to be sufficient under the rule of construction adopted by the codes.^ In an action on a town treasurer's official bond, the complaint, after setting out the bond, averred the breach thereof in the fol- lowing manner, simply negativing the conditions : " He has not duly and faithfully performed the duties of liis office, and has not faithfully and truly accounted for and paid over according to law all the state and county taxes which came into his hands ; " but it did not allege that any such taxes had ever come into his hands. This complaint was pronounced fatally defective on demurrer, as the facts constituting the breach should have been pleaded. 2 § 535. The petition in an action against H. as maker and C. as indorser of a note set out the note made by H. payable to bearer and a guaranty thereon, " I guarantee the payment of the within note to C. E. [the plaintiff] or order," signed by C, and added : " The defendant H. is liable on said note as maker, and the defendant C. as indorser and guarantor. The plaintiff C. E. is the holder and owner of said note. There is due from the defend- ants to the plaintiff on said note the sum of," &c. On demurrer by the defendant C, he was held to be absolutely liable as a guarantor, and that under the liberal rule of construction the allegations of the complaint imported a cause of action, and were sufficient.^ In an action by the vendee for fraudulent represen- tations made on a sale, the complaint must allege that the plain- tiff relied upon them ; and the absence of such an averment will not be supplied by a statement of mere evidentiary matter tending to show the existence of that material fact, unless the evidence so stated is conclusive.* In an action brought to recover damages 1 Joubert v. Carli, *26 Wis. 594, per C. was absolutely liable as a guarantor, Paine J.: " Tiie allegation that one has added that the allegations above stated performed work for another at an agreed implied a transfer of the note from him price per month or per day, must be to the plaintiff, and a consideration by held to fairly import tiiat the agreement means of such transfer. C. is thus shown was prior to the performance of the work, to be an indorser, and is, as it appears, and that the work was done in pursuance therefore held liable as a guarantor. This of it." decision, in my opinion, camiot be sup- 2 Wolff I'. Stoddard, 25 Wis. 503, 505; ported on principle. It is such ruling as Supervisors v. Kirby, 25 Wis. 408. Dixon this that destroys the scientific character C. J. dissented in both cases. and usefulness of the reformed s^'stem, ' Clay r. Edgerton, 19 Ohio St. 540. and tends to bring it into discredit. Thecourt, after stating that the defendant * Goings v. White, 33 Ind. 125. This GENEKAL PRINCIPLES OF PLEADING. 585 for the conversion of chattels, the complauit was substantially as follows ; That the plaintiff was on, &c., the owner of certain chattels ; that he leased them to one S. by a written lease, in which he reserved the right to take possession of them, and to terminate the letting, whenever he should deem himself unsafe, or that the chattels were not well taken care of; that S. took possession under the lease ; that the defendant, who is a United States marshal, seized them while thus in the possession of S. under a process in bankruptcy against S. ; that plaintiff demanded them from the defendant, who refused, &c. ; that the plaintiff demanded the possession from the defendant " on the ground that the plaintiff deemed himself unsafe, and did not think that the property was well taken care of;" and that the defendant had converted the same to his own use. The complaint did not con-' tain any further or more express statement that the plaintiff did as a matter of fact deem himself unsafe. A demurrer for want of facts was sustained, and the pleading was held insufficient because it did not show a right of possession in the plaintiff when the action was brought, in that it failed to allege any fact enti- tling him to terminate the letting, and to resume possession of Ids property.^ The petition in an action for conversion alleged that the defendant " had in his possession, and under his control, $5,000 in money, and 110,000 in hardware, stoves, &c., of the money and property owned by the plaintiff," and converted the same. This was declared, on a motion to make the petition more definite and certain, to be a sufficient averment that the money and goods were the property of the plaintiff.^ If an action is brought on a bail bond given in a criminal proceeding, the com- plaint should allege that the person was released from custody upon the execution and delivery of the undertaking, and a plead- deeision assumes that, although in ac- ^ Hathaway v. Quinby, 1 N. Y. S. C. cordance with the general doctrine, the 386. Tlie construction given to the corn- principal fact and not the evidence of it plaint in this case was certainly severe should be pleaded, yet a statement of the and technical, and hardly in accordance evidence may under certain circumstances with the rule laid down in the code. The be sufficient to raise a substantial issue, objection is for incompleteness and in- If the principal fact be not alleged, but definiteness of the allegation. Tlieplain- the details of evidence are given, and tiff certainly does state, although perhaps these are positive and conclusive in their in a partial manner, that he deemed him- nature, the pleading will not be bad on self unsafe. A motion was certainly more demurrer, although it will be subject to appropriate than a demurrer, amendment on a motion to make it more •^ Sturman v. Stone, 31 Iowa, 115. definite and certain. 586 CIVIL KEMEDIES. ing omitting this statement was held bad.^ Where a tender is essential to the plaintiff's cause of action, the complaint must either aver it in express terms, or must state a sufficient excuse for omitting it. In such a case the plaintiff alleged " that he has been ready and willing during all the time aforesaid, and has offered, to accept and take said conveyance, and to pay the balance of said purchase-money." This averment was i)ronounced to be insufficient, and the complaint was held bad on demurrer, as it neither stated a tender, nor an excuse for not making a tender.2 In actions brought to recover damages, an allegation that damages have been sustained is indispensable. As was said by the Supreme Court of California in a late decision, " it is not alleged in the complaint that the plaintiff has sustained damages, and therefore he is not entitled to judgment for damages."^ 1 Los Angeles County v. Babcock, 45 Cal. 252. 2 Englander v. Rogers, 41 Cal. 420, 422. 3 Bohall V. Diller, 41 Cal. 532. See also Bradley v. Aldrich, 40 N. Y. 504, and supra, § 84, note 3 ; and comp. Graves v. Spier, 58 Barb. 349, supra, § 81, note 2. The following cases furnish illustrations of allegations held to be sufficient or in- sufficient in a variety of ordinary actions : oi fraud. Smith v. Nelson, 62 N. Y. 286; Jones V. Frost, 51 Ind. 69 ; Arnold v. Baker, 6 Neb. 134 ; Nicolai v. Lyon, 8 Oreg. 56 ; Lafever v. Stone, 55 Iowa, 49 ; Ockenden v. Barnes, 43 id. 615 ; Pence v. Croar, 51 Ind. 329; Hess v. Young, 59 Ind. 379 ; Sacramento Savings Bank v. Hynes, 50 Cal. 105; oi nerjUfjence, defend- ant's, Pittsburgh, &c. li. R. v. Nelson, 51 Ind. 150 ; St. Louis, &c. R. R. v. Mathias 50 id. 65 ; plaintiff's, Higginsi*. Jefferson ville, &c. R. R., 52 id. 110 ; Toledo, &c. R R. V. Harris, 49 id. 119 ; Hathaway i^. Tol edo, &c. R. R., 46 id. 25 ; Jefferson ville, &c, R. R. V. Bowen, 40 id. 545; Lafayette &c. R. R. V. Huffman, 28 id. 287; Iligley V. Gilmer, 3 Mont. 90; \n slander and libel, Roberts v. Lovell, 38 Wis. 211 ; Ilanning V. Bassett, 12 Bush, 361 ; of damages, Argotsinger v. Vines, 82 N. Y. 308 ; Fer- guson V. Hogan, 25 Minn. 135; Johnson V. C. R. I. & P. R. R., 50 Iowa, 25 ; Comer v. Knowles, 17 Kan. 436; India- napolis, «Sbc. R. R. I'. Milligan, 50 Ind. 393 ; actions on express contractu, perform- ance of conditions, Preston ?'. Roberts, 12 Bush, 570; Averbeck v. Hall, 14 id. 505; Andreas v. Holcombe, 22 Minn. 339 ; Livesey i". Omaha Hotel Co., 5 Neb. 50 ; Estabrook v. Omaha Hotel Co., 5 Id. 76; Lowry v. Magee, 52 Ind. 107 ; Rliodes v. Alameda Co., 52 Cal. 350 ; work and ma- terials, Stephenson v. Ballard, 50 Ind. 176; Wolf V. Scofield, 38 id. 175; the consideration. Leach v. Rhodes, 49 id. 291 ; a written instrument, Waukon, &c. R. R. V. Dwyer, 49 Iowa, 121; Brown v. Champlin, 66 N. Y. 214, 218 ; Pettit v. Hamlyn, 43 Wis. 314 ; non-payment, Roberts v. Treadwell, 50 Cal. 520; in- debtedness. Town of Pine Valley v. Town of Unity, 40 Wis. 682 ; of a partnership, Stix V. Matthews, 63 Mo. 371 ; Kilsey v. Henry, 48 Ind. 47 ; for obtaining an injunc- tion. Wells, Fargo, & Co. i'. Coleman, 53 Cal. 410 ; Boehme v. Sume, 5 Neb. 80 ; Thorn ?'. Sweeney, 12 Nev. 251 ; Portland V. Baker, 8 Oreg. 356 ; of time, Balch v. Wilson, 25 Minn. 299 ; Luby i-. Ashland, &c. Co., 49 Wis. 165 ; in miscellaneous cases, Calvin v. Duncan, 12 Bush, 101 (action on vendor's lien) ; Mitchell v. Mitchell, 61 N. Y. 398 (of adultery); Rhodes v. Ala- meda Co., 52 Cal. .350 (against a county) ; Wiebbold v. Hermann, 2 Mont. 609 (name of party) ; Orr W. Ditch Co. r. Larcombe, 14 Nev. 53 (in interpleader) ; Brown v. Taylor, 9 Hun, 155 (against a married woman) ; Horn r. Chicago, &c. R. R., 38 ALLEGATIONS OF IMPLIED rEOMISES. 587 § 536. The cases contained in the last three paragraphs, and from which quotations have been made, were not selected as examples of proper pleading according to the principles estab- lished by the reformed procedure ; on the contrary, most of those which were sustained by the courts escaped condemnation only by applying the liberal rule of construction prescribed in the codes. These decisions arc given rather to show how far a plead- ing may disregard the requirements as to form and method, and may violate all the principles of logical order and precision of statement, and may yet be held sufficient on general demurrer, because the material facts constituting a cause of action can be discovered among the mass of confused or imperfect allegations. The principles and doctrines of pleading adoj)ted and enforced by the courts are illustrated and explained by such examples as these, but the cases themselves are to be carefully avoided as precedents. The mode of correcting imperfect and insnjfficient averments as distinguished from those which state no cause of action, and the liberal rule of construction introduced by the code, will form the subject of a separate and careful discussion in a subsequent portion of this chapter. § 537. In considering the third general doctrine developed in the preceding analysis, — namely, that the facts pleaded should be stated as they actually occurred or existed, and not their mere legal aspect, effect, or operation, — two practical questions are presented, and the discussion will be mainly confined to them. These questions are, (1) whetlier in actions based upon the com- mon-law notion of an implied contract the pleader should simply allege the facts as they really occurred from which the legal duty Wis. 463 (a private statute) ; Pittsburgh, contract, Partridge v. Blancliard, 23 Minn. &c. R. R. V. Tlieobald, 51 Ind. 239 69 ; Uslier i;. Heatt, 18 Kan. 195 ; onpmn- fagainst arailroad for injury to apassen- issory notes, Adaais v. Adams, 25 Minn, ger) ; Crawford v. Neale, 56 Cal. 32 (a 72; Harris Man. Co. v. Marsli, 49 Iowa, guardian ad /iVem). Tlie following cases 11; Abiel v. Harrington, 18 Kan. 253; furnish e.xamples of complaints or peti- Durland v. Pitcairn, 51 Ind. 42ti ; Green tions in some common species of actions v. Southain, 49 id. 139 ; Friddle v. Crane, which have been sustained; in ejectment, 68 id. 583; in libel or slander, Catj v. A1- Sears v. Taylor, 4 Col. 88 ; Johnston v. len, 39 Wis. 481 ; Stern v. Katz, 38 id. Pate, 83 N. C. 110 ; Thompson r. Wolfe, 6 136 ; Frank v. Dunning, 38 id. 270 ; Lip- Oreg. 308; Bentley v. Jones, 7 id. 108; prant v. Lipprant, 52 Ind. 273; Shigley Austin w. Schluyster, 7 Hun, 275; /or a r. Snyder, 45 id. 541; Downey r. Dil- converston, Womble v. Leach, 83 N. C. Ion, 52 id. 442 ; Dorsett v. Adams, 50 id. 84 ; Johnson v. Oreg. Nav. Co., 8 Id. 35 ; 129 ; Schurick v. Kollman, 50 id. 336 ; in Pease v. Smith, 61 N. Y. 477 ; Johnson v. replevin, Crawford v. Furlong, 21 Kan. Ashland C-o.,44 Wis. 119 ;>r breach of 698; Zitske v. Goldberg, 38 Wis. 216. 588 CIVIL REMEDIES. arises, without averring a promise which was never made, or whether he must or may, as in the common-law assumpsit, state a promise to have been expressly made which is the legal effect or operation of those facts ; and (2) whether the ancient com- mon counts, or allegations substantially identical therewith, fulfil the requirements of the new procedure, and can be used, in con- formity with its fundamental principles, as complaints or peti- tions in the classes of actions to which they would have been appropriate under the former system. I shall take up these questions separately, first collecting and comparing the deci- sions bearing upon each ; and, secondly, discussing them upon principle. § 538. (1) Whether in actions upon implied contract it is necessary or proper to allege a promise as made by the defend- ant. There is a marked unanimity of opinion among the deci- sions which directly involve this question, since most of them accept the language of the codes, and fully recognize the radical change in principle effected by the reformed procedure. In Farron v. Sherwood,^ after sustaining a complaint substantially a general count in assumpsit for work and labor without any averment of a promise by the defendant, the New York Court of Appeals said : " It is not necessary to set out in terms a promise to pay ; it is sufficient to state facts showing the duty from which the law implies the promise. That complies with the requirement that facts must be stated constituting the cause of action." This language was not a mere dictum ; it was absolutely essential to the judgment, since the complaint contained no averment of a promise, and was nevertheless held sufficient. The decision must therefore be regarded as settling the doctrine for that State. In another action to recover compensation for work and labor, where the complaint stated various services performed by the plaintiff from which it was claimed a duty on the part of the defendant arose, but alleged no promise by him, the Supreme Court of New York adopted the same rule of pleading.^ On the other hand, 1 Farron v. Sherwood, 17 N. Y. 227, - Cropscy v. Sweene3% 27 Barb. 310, 230. See also Mackey f. Auer, 8 Hun, 312, per Sutherland J., wlio delivered the 180; Ue la Guerra v. Newhall, 55 Cal. following opinion: "Although the form 21; Moore v. Hobbs, 70 N. C. 535; Jones of the action of assumpsit, and of the V. Mial, 79 id. 164; Emslie v. City of pleadings therein, has been abolished, yet Leavenworth, 20 Kan. 562; Stephenson the obligation of contracts and the dis- V. Ballard, 50Ind. 170. tinction between an express and an im- ALLEGATIONS OF IMPLIED PROMISES. 589 the Supreme Court of Wisconsin said by way of a dictum in an early case : " Good pleading requires that a promise which the law implies should be stated." ^ And in an action for services alleged in the petition to have been performed at the request of an agent of the defendant, the Supreme Court of Missouri held that either the promise must be averred, or the facts from which a promise will be inferred as a matter of law.^ In Montana, the rule is distinctly established that the facts from which the prom- ise is inferred should be pleaded, and not the promise itself; but that in an action on an express promise it must be alleged.^ The Supreme Court of Indiana has held with evident reluctance that in such a case it is not necessary for the party to aver a promise, and that it is enough for him to state the facts from which the law implies it. The court added, however, after this concession, that it is better in all cases to allege a promise, saying : " It is always good pleading to state the legal effect of the contract whether it is written or oral."'* And in another case, where the action was brought for the value of goods sold, &c., the same court, while passing upon the sufficiency of a complaint which was substantially in the form of an old common count without a request or a promise averred, used the following language : " In all these instances the law implies the promise from the facts stated, and our statute simply requires the statement of facts ; and if upon these facts the law implies a promise, the complaint would be good.''^ § 539. The question was discussed by the Supreme Court of plied assumpsit remain ; and notwith- case ; but facts sufficient to raise it, and standing the code, in a large class of to put it on paper were it lawful to do so, cases now as before the code, it is only on are still necessary." Ho goes on to hold the theory of an implied assumpsit, in- that the special facts alleged in the com- ferred from the conduct, situation, or plaint raise no iuiplied promise, mutual relations of the parties, that jus- ^ Bird v. Mayer, 8 Wis. 362, 367. tice can be enforced, and the performance This remark was entirely obiter. The of a legal duty compelled. It is no longer question before the court was, whether a necessary, and perhaps not even proper, in warranty sued on was express or implied, such a case, for the plaintiff to allege in his ^ Wills v. Pacific R. R., 35 Mo. 164. complaint any promise on the part of the The allegation of a performance at the defendant, but he must state facts which, request of an agent of the defendant was if true, according to well-settled principles insuflicient, being matter of evidence only, of law, would have authorized him to ^ Higgins v. Germaine, 1 Mont. 230. allege, and the court to infer, a promise on * Wills f. Wills, 34 Ind. 106,107, 108. the part of the defendant before the code. See the opinion quoted at large, supra, The form of assumpsit is no longer neces- § 517, note. sary, nor perhaps even proper, in such a * Gwaltney v. Cannon, 31 Ind. 227. 590 CIVIL REMEDIES. Kew York in a very recent decision ; and the importance of the case, and the positions taken in the opinion, make it necessary to quote from the judgment at some length. The complaint con- tained two counts. The second Avas for money had and received to the plaintiff's use. The first set out the facts in detail, stating a liability which might be considered as resulting from the tortious acts of the defendant, or might be regarded as arising from an implied contract, but omitting to aver any promise. The defendant demurred on the ground that two causes of action had been improperly joined, one on contract, and the other for a tort, — an injury to property. The plaintiff, in answer to this position, claimed that he could elect under the circumstances to sue either for tort or on contract, and that the first cause of action should be treated as of the latter kind, so that there was no misjoinder. The court, however, entirel}'- rejected this claim ; and after stating that the ancient assumpsit and case were in many instances concurrent remedies for injuries to personal property ; that in assumpsit the pleader must always have alleged that the defendant " undertook and promised," &c., and a breach of that promise, while in case the declaration Avas sub- stantiall}' the same except that the allegation of an undertaking and promise was omitted ; that in the first count this averment is wanting, and " it is therefore a count in case,'^ — proceeded as fol- lows ; " If the plaintiff is right in supposing that the law implied a promise by the bank not to satisfy the judgment after it was assigned to him, he was bound to allege that the bank under- took and promised not to satisf}', &c., in order to make it a count on contract The codifiers, while proposing to abolish the distinction between forms of action, found it impossible or im- practicable in many cases to effect that object ; and this case illus- trates their failure in at least one class of cases. When case and assumpsit were at the common law concurrent remedies, the form of action that the pleader selected was determined, as I have shown, by the insertion or omission from the declaration of the allegation that the defendant ' undertook and promised.' Tliis right of selection remains ; and whether the action is tort or assumpsit must he determined by the same criterion. If this is not so, then the right of election is taken away. If taken away, which of the two is left ? An action on contract cannot be joined with one in tort. How are we to determine whether the ALLEGATIONS OF IMPLIED PROMISES. 591 action is one on contract or in tort, unless the pleader by aver- ment alleges the making of the contract, and demands damages for a breach in the one case, or by the omission of such an aver- ment makes it an action in tort ? I know of no more certain or convenient criterion by which to determine tlie class to which a cause of action belongs than the one suggested. If some such rule is not established, the question of misjoinder will arise in every case in which at the common law assumpsit and case were concurrent remedies." ^ § 540. It is very evident from the foregoing collection of deci- sions that the courts have, by an overwhelming preponderance of authority, accepted the simple requirement of the codes, and have not destroyed its plain import by borrowing the notion of a fictitious promise from the common-law theory of pleading. The practical rule may be considered as settled, that, in all instances where the right of action is based upon a duty or obligation of the adverse party which the common law denominates an implied contract, it is no longer necessary to aver a promise, but it is enough to set out the ultimate facts from which the promise would have been inferred. This being so, we must go a step farther. If it is not necessary to make such an allegation, then it is not proper to do so ; although some of the judicial opinions, from a failure to apprehend the true grounds of the rule, would seem to permit, while they do not require, the averment. A promise need not be alleged because none was ever made : the facts constituting the cause of action are alone to be stated, and this promise is not one of those facts ; it is simply a legal infer- ence, contrived for a very technical purpose to meet the require- ments of form in the ancient legal actions. The same reason which shows that the averment is unnecessary demonstrates that it is improper, that it violates a fundamental doctrine of the new ^ Booth V. Farmers' and Mechanics' promise, arises. De la Guerra v. New» Bank, 1 N. Y. S. C, 45, 49, 50, per Mullin hall, 55 Cal. 21 ; Mackey v. Auer, 8 Hun, J. It is very remarkable that the judge 180; a mere allegation of indebtedness, makes no reference whatever to the prior however, is not sufficient. Moore v. cases of Farron v. Sherwood and Cropsey Hobbs, 79 N. C. 535 . When a party to an V. Sweeney, which are decisive of the express contract may sue upon an ira- question involved. A promise need not plied contract, and the proper allegations be alleged, and if alleged a denial of it in such case, see Emslie y. City of Leaven- would raise no material issue, whore the worth, 20 Kans. 562 ; action for labor and fads have been averred from which the materials, see Stephenson v. Ballard, 50 liability, represented by the fiction of a Ind. 176 ; Jones v. Mial, 79 N. C. 164. 592 CIVIL REMEDIES. theory ; and if an harmonious system is ever to be constructed upon the basis of the reform legislation, this doctrine should be strictly enforced. § 541. The only recent case which is in direct conflict with these views is the one last quoted, Booth v. Farmers' and Me- chanics' Bank ; and it seems to demand some comment. Perhaps there cannot be found in the current reports a more striking example of exalting form above substance, and of repealing an express statutory provision by judicial construction, than is shown in this decision. The learned judge virtually admits that the text of the code is opposed to his conclusions, when he assumes that the codifiers failed to accomplish the results which they intended. It may be remarked that he speaks of the stat- ute as though it were entirely the work of the " codifiers," and he seems to ignore the authority of the legislature which made it a law. But are the common-law notion of an implied undertak- ing and the arbitrary requisite of alleging this fictitious promise such necessary conceptions, are they so involved in the essential nature of jurisprudence, that it is impossible or impracticable for the legislature to change or to abolish them ? The very sugges- tion is its own answer. Nothing in our ancient law was more thoroughly technical and arbitrary, more completely a mere matter of form, without even the shadow of substantial and necessary existence, than this very notion of a certain kind of legal liability being represented as arising from an implied prom- ise, and the accompanying rule that the promise thus imagined must be averred as though it were actually made. It was shown in a former part of this section that the action of assumpsit was not even invented as an instrument by which to enforce the lia- bility tlius conceived of; but the fiction of an implied promise was itself contrived in order that the liability might be enforced by the already existing action of assumpsit, in which the allegation of a promise was the distinctive feature. The error of the opinion under review is, that it treats these matters of arbitrary form, these fictitious contrivances of the old pleaders, as though they subsisted in the nature of things, and were beyond the reach of legislative action. The difficulty, suggested by the learned judge, of being unable to distinguish between an action of tort and one of contract, in order that an election might be made between them, exists only in imagination. If we will look THE COMMON COUNTS. 593 at the matter as it really is, throwing aside the old technicalities and fictions, there is plainly no necessity for any such distinction. If the pleader unites a cause of action upon express contract with a cause of action consisting of facts, from which under the former system a promise might have been implied, he has already made his election, — all the election that is needed, — and there would be no possibility of any subsequent change in or depar- ture from this original theory of his complaint. The only prac- tical difference which could ever arise from treating his second cause of action as though founded upon tort would be the power sometimes given of arresting the defendant either on mesne or final process, and this power would plainly have been surren- dered. To sura up the foregoing criticism, the whole course of reasoning pursued by the learned judge assumes that the most technical, arbitrary and fictitious distinctions between the ancient forms of action are still subsisting ; it does not merely ignore the legislation which has abrogated those distinctions, but it expressly denies the ability of the legislature to accomplish such a result. This is not interpreting, it is repealing, a statute. I have dwelt upon this case longer perhaps than it intrinsically merits ; but I have done so because the principles announced in it, if generally followed, would sap the very foundations of the reformed pro- cedure, and prevent the erection of any harmonious and sym- metrical system upon the basis of its fundamental doctrines. § 542. (2) Whether a complaint or petition, substantially the same in its form and its allegations with the old common or gen- eral count in assumpsit, is in accordance with the fundamental principles of the new procedure, and can now be regarded as a good pleading. The courts have almost unanimously answered this question in the affirmative, and have held that such com- plaints or petitions sufficiently set forth a cause of action in the cases where the declarations which they imitate would have been proper under the former practice.^ Notwithstanding the impos- 1 I have collected in this note the lead- Hurst v. Litchfield, 39 N. Y. 377 ; Green ing cases which sustain the position in the v. Gilbert, 21 Wis. 395 ; Evans v. Harris, text. Allen v. Patterson, 7 N. Y. 476; 19 Barb. 416; Grannis v. Hooker, 29 Meagher v. Morgan, 3 Kans. 372 ; Clark Wis. 65, 66, 67 ; Cudiipp v. Wiiipple, 4 V. Fensky, 3 Kans. 389 ; Carroll i'. Paul's Duer, 610 ; Bates i'. Cobb, 5 Bosw. 29 ; Executors, 16 Mo. 226; Brown v. Perry, Adams v. Holley, 12 How. Pr. 326; Betts 14 Ind. 32; Kerstetter v. Raymond, 10 v. Bache, 14 Abb. Pr. 279; Sloman v. Ind. 199; Farron v. Sherwood", 17 N. Y. Schmidt, 8 Abb. Pr. 5; Goelth v. White, 227, 229; Hosley v. Black, 28 N. Y. 438 ; 35 Barb. 76 ; Stout v. St. Louis, &c. Co., 88 594 CIVIL REMEDIES. ing array of judicial authority shown by the citations in the foot-note, the courts of one or two States have refused to follow 52 Mo. 342 ; Curran v. Curran, 40 Ind. 473 ; Johnson v. Kilgore, 39 Ind. 147 ; Couslogy. Garrett, 39 Ind. 338; Wolf i-. Scliofield, 38 Ind. 175, 181 ; Noble v. Bur- ton, 38 Ind. 20G ; Higgins v. Gerniaine, 1 Mont. 230 ; Gwaltney v. Cannon, 31 Ind. 227 ; Fort Wayne, &c. R. R. v. McDonald, 48 Ind. 241, 243 ; Raymond v. Hanford, 6 N. Y. S. C. 312 ; Fells v. Vestvali, 2 Keyes, 152 ; Pavisich v. Bean, 48 Cal. 364; Wilkins v. Stidger, 22 Cal. 231; Abadie v. Carrillo, 32 Cal. 172 ; Merritt v. Gliddon, 39 Cal. 559, 564. The exact posi- tion of the courts in reference to this question will be shown by a quotation from a few of these decisions. The lead- ing case is Allen v. Patterson. The action was for the price of goods ; and the com- plaint was in form a count in indebitatus assumpsit for goods sold and delivered. Jewett J. said (p. 478): "The code re- quires that the complaint shall contain a plain and concise statement of the facts constituting the cause of action. Every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has a right to con- trovert in his answer, must be distinctly averred or stated. The rule of pleading in an action for a legal remedy is the same as formerly in this, that facts, and not the evidence of facts, must be plead- ed." After an analysis of the complaint, he reaches the conclusion that its aver- ments are in conformity with these gen- eral principles. He does not notice, however, the feature which, above all others, distinguished this form of declara- tion in assumpsit — namely, that the legal effect of the facts was stated, instead of the actual facts of the transaction ; nor does he advert to tlie nature, as a pure conclusion of law, of the most important allegation, that " the defendant is indebted to the plaintiff." In Grannis v. Hooker, 29 Wis. 65, the complaint was in form a common count for money had and re- ceived ; and, on the trial, the plaintiff offered to prove that he was induced to pay over money to the di-fondant by the latter's false and fraudulent repre- sentations in the sale of certain lands. which was now sought to be recovered. This evidence was rejected ; and, on the plaintiff's appeal, the court, by Cole J., said (pp. 66, 67) : " The complaint con- tains what, under the former system of pleading, would be called a count for money had and received. ... It is claimed by the defendant that all the facts in respect to the alleged fraud should have been distinctly stated in the complaint, otherwise the plaintiff is not entitled to prove them. On the other hand, it is claimed that all it is necessary the complaint should contain is substan- tially an allegation that the defendant has received a certain amount of money to the use of the plaintiff', as in the old form of declaration in indebitatus assumpsit. We are inclined to sanction the latter view, and to hold that the facts, which in the judg- ment of the law create the indebtedness or lia- bility, need not be set forth in the complaint." The complaints in several of the Indiana cases above cited were as follows : In Curran r. Curran, "the plaintiff says that the defendant is indebted to him in the sum of, &c., for the following-described real estate sold and conveyed to him by the plaintiff [description] ; that said sum is now due and wholly unpaid, for which the plaintiff demands judgment," &c. ; in Johnson v. Kilgore, " that said defendant is indebted to him in the sum of, &c., for work and labor done and performed, and materials furnished, wherefore," &c. ;in Bouslog V. Garrett, " that on, &c., the de- fendant was indebted to the plaintiff in the sum of, &c., for money found due from said defendant to the plaintiff upon an account then stated between them, which said sum remains unpaid, where- fore," &c. ; in Wolf v. Schofield, " that the defendant is indebted to him in the sum of, &c., for work and labor done and performed, and for materials furnished by the plaintiff for the defendant at his in- stance and request, wherefore," &c. These and other similar complaints were sus- tained by the courts of that State, not upon any discussion of general principles, but because they were in accordance with certain short forms prescribed by the leg- THE COMMON COUNTS. 595 this course of decision, and have pronounced such forms of complaint or petition to be in direct conflict with the correct principles of pleading established by the codes. Although these few cases cannot be regarded as shaking, or as throwing any doubt upon, the rule so firmly established in most of the States, they may be properly cited in order that all the light possible may be thrown upon this particular question of inter- pretation,^ § 543. Not only have the courts in this manner sanctioned the use of the common counts as appropriate modes of setting forth the plaintiff's cause of action ; they have also held that another rule of the old practice is still retained by the codes. The rule thus declared to be in force is the following : When the plaintiff has entered into an express contract with the defendant, and has fully performed on his part, so that nothing remains unexecuted but the defendant's obligation to pay, he may if he please sue upon the defendant's implied promise to make such payment, rather than upon the express undertaking of the original con- tract; and to that end he may resort to a complaint or petition identical with the ancient common counts; except, as has already been shown, the averment of a promise may, and according to islature, and declared by it to be sufficient, sum mentioned, or that the defendants They plainly violate every essential re- promised to pay that sum, and laid down quirement of the code itself. That the the general doctrine in the following man- common counts may still be used, see also ner : "In actions for goods sold and de- Magee v. Kast, 49 Cal. 141 ; Ball v. Ful- livered, it is essential that one or the Ion, 31 Ark. 379; Jones v. Mial, 82 N. C. other of these allegations should be made. 252 ; 79 id. 164 ; Emslie v. Leavenworth, Without it the allegation of indebtedness 20 Kans. 562 ; Comm'rs v. Verbaug, 63 is a mere conclusion of law unsupported Ind. 107. by any fact. Tlie defendant's liability 1 Foerster i". Kirkpatrick, 2 Minn. 210, grows out of the fact that the goods were 212; Bowen v. Emmerson, 3 Oreg. 4-52. either worth the amount of tlie claim, or The complaint in the first of these cases else that they promised to pay that ■was, " that the above-named defendants amount. If they weie worth the amount, are justly indebted to the plaintiff in the the law implies a promise. Without one sum of, &c., on account for goods, wares, or the other of these allegations, there and merchandise sold and delivered by appears no consideration to support the the plaintiff to the defendants at the spe- pretended indebtedness. In Bowen v. cial instance and request of the defend- Emmerson the Supreme Court of Oregon ants, wherefore," &c. ; and it will be pronounced the use of the general count noticed that this is fuller than several of in assumpsit to be entirely inconsistent the forms before quoted, since it alleges a with the reformed theory of pleading, and request. In sustaining a demurrer to this expressly refused to follow the decision complaint, the court held it defective, be- made in Allen v. Patterson. The opinion cause it contained (1) no statement of the is a clear and very strong argument in time of sale, and (2) no averment that favor of the simple and natural modes of the goods were of the price or value of the pleading provided by the codes. 596 CIVIL REMEDIES. the better opinion should, be omitted.^ This doctrine is sup- ported by numerous decisions in various States, and it seems to be regarded as still operative in all the circumstances to which it was applicable under the former system. § 544. In the face of this overwhelming- array of authority, it may seem almost presumptuous even to suggest a doubt as to the correctness of the conclusions that have been reached with so much unanimity. I cannot, however, consistently with my very strong convictions, refrain from expressing the opinion that, in all these rulings concerning tlie use of the common counts, the courts have overlooked the fundamental conception of the re- formed pleading, and have abandoned its essential principles. This position of inevitable opposition was clearly, althougli unin- 1 Farron v. Sherwood, 17 N. Y. 227, 229; Hosley v. Black, 28 N. Y. 438; Hurst V. Litchfield, 39 N. Y. 377; Atkinson v. Collins, 9 Abb. Pr. 353 ; Evans v. Harris, 19 Barb. 416; Green v. Gilbert, 21 Wis. 395, an action to recover for the part per- formance of an express contract, the plaintiff having been prevented by sick- ness from completing ; Carroll v. Paul's Executors, 16 Mo. 220 ; Brown v. Perry, 14 Ind. 32; Kerstetter v. Eaymond, 10 Ind. 199; Stout v. St. Louis T. Co., 52 Mo. 342; Friermutii v. Friermuth, 46 Cal. 42 ; Raymond v. Hanford, 6 N. Y. S. C. 312; Fells r. Vestvali, 2 Keyes, 152. In Sussdorf V. Schmidt, 55 N. 'y. 319, 324, the complaint alleged an agreed compen- sation for services; but, at the trial, the plaintiflF was permitted to prove their value as upon a quantum meruit, and this was held no error, or at most an immate- rial variance ; but, per contra, in Davis v. Mason, 3 Oreg. 154, it was held that in an action for services, the complaint stating an express contract to pay a stipulated sum, tlie plaintiff cannot prove and recover their value ujjon a (]uantum meruit. In Farron v. Sherwood, which is, periiaps, the leading case, the doctrine was thus announced by Strong J. (p. 229): "The case is therefore within the well- settled rule, that when there is a special agreement, and the plaintiff has performed on his part, the law raises a duty on the part of the defendant to pay the price agreed upon, and tlie plaintiff may count either upon this implied assumpsit, or on the express agreement. A new cause of action, upon such performance, arises from this legal duty in like manner as if the act done had been done upon a gen- eral request, without an express agree- ment. This rule is not affected by the code. The plaintiff might, as he has done, rest his action on the legal duty, and his complaint is adapted to and con- tains every necessary element of that cause of action." In Kerstetter v. Ray- mond, the Supreme Court enumerated the instances in which the general or common count was a proper means of suing upon an express contract between the parties, and declared that they were all retained by the codes. Tliese instances are, (1) when the plaintiff has fully exe- cuted, and the time of payment is passed, the measure of damages being the stipu- lated price ; (2) when the special contract has been altered or deviated from by com- mon consent ; (3) when the plaintiff has performed a part, and has been pre- vented from performing the whole by the act of the defendant, or by the act of the law ; (4) when the plaintiff has not fully complied with the terms of the con- tract, but, professing to act under it, has done for or delivered to the other party something of value to him which he has accepted. This last doctrine is not uni- versally accepted in the broad terms as liere stated; but it is the settled rule in Indiana. See Lomax v. Bailey, 7 Blackf. 599. THE COMMON COUNTS. 597 tentionally, described by one of the judges in language already quoted, when he says, " We are inclined to sanction the latter view, and to hold that the facts which, in the judgment of the law, create the indebtedness or liability, need not be set forth in the complaint." Now, the " facts which create the liability " are the "facts constituting the cause of action" which the codes expressly require to be alleged ; the two expressions are synony- mous ; and the direct antagonism between what the court says need not be done, and wliat the statute says must be done, is patent. But the objection to the doctrine of these decisions does not chiefly rest upon such verbal criticism ; it is involved in the very nature of the new theory when contrasted with the old methods. In every species of the common count, the averments, by means of certain prescribed formulas, presented what the pleader conceived to be the legal effect and operation of the facts instead of the facts themselves, and the most important of them was always a pure conclusion of law. The count for money had and received well illustrates the truth of this propo- sition. In the allegation that " the defendant was indebted to the plaintiff for money had and received by him to the plaintiff's use," the distinctive element was the phrase " money had and received to the plaintiff's use." This technical expression was not the statement of a fact^ in the sense in which that word is used by the codes ; if not strictly a pure conclusion of law, it was at most a symbol to which a certain peculiar meaning had been given. The circumstances under which one person could be liable to another for money had and received were very numerous, embracing contracts express or implied, and even torts and frauds. The mere averment that the defendant was indebted for money had and received admitted any of these circumstances in its support, but it did not disclose nor even sug- gest the real nature of the liability, the actual cause of action upon which the plaintiff relied. The reformed theory of plead- ing was expressly designed to abrogate forever this general mode of averment, which concealed rather than displayed the true cause of action ; it requires the facts to be stated, the facts as they exist or occurred, leaving the law to be determined and applied b}^ the court. The same is true of the common count in eveiy one of its phases. A careful analysis would show that the important and distinctive averments were either naked con- 598 CIVIL REMEDIES. elusions of law, or the legal effect and operation of the facts expressed in technical fornaulas to which a particular meaning had been attached, and which were equally applicable to innu- merable different causes of action. The rule which permitted the general count in assumpsit to be sometimes used in an action upon an express contract was even more arbitrary and technical, and was wholly based upon fictitious notions. The conception of a second implied promise resulting from the duty to perform the orioinal express promise has no foundation whatever in the law of contract, but was invented, with great subtlety, in order to furnish the ground for a resort to general assumpsit instead of special assumpsit in a certain class of cases. All the reasons in its support were swept away by the legislation which abolished the distinctions between the forms of action, since it was in such distinctions alone that those reasons had even the semblance of an existence. My space will not permit this discussion to be pursued any farther, although much more might be added to the foregoing suggestions. If the principles of pleading heretofore developed in the text are true expressions of the reformed theory, the legislature certainly intended that the facts constituting each cause of action should be alleged as they actually happened, not by means of any technical formulas, but in the ordinary language of narrative ; and it is, as it appears to me, equally certain that the use of the common counts as complaints or petitions is a violation of these fundamental principles. § 545. From the few general principles which thus constitute the simple foundation of the reformed pleading, there result as corollaries certain subordinate doctrines and practical rules, to the development and illustration of which the remaining portion of the present section will be devoted. The immediate object of these special rules is to enforce in complaints or petitions and answers a conformity with the essential principles upon which the system is based, and at the same time to procure a decision of judicial controversies upon their merits, and not upon any mere technical requirements as to form and mode. They relate to the practical methods which must be pursued in setting forth the causes of action and the defences ; and the particular sub- jects with which they deal are (1) insufficient, incomplete, or im- perfect allegations, (2) immaterial and redundant allegations, (3) the doctrine that the cause of action or the defence proved LIBERAL CONSTRUCTION OF PLEADINGS. 599 must correspond with the one alleged. Connected with and subsidiary to these topics are the remedies provided for each, and particularly that of amendment, which the codes expressly authorize with the utmost freedom, and also the power of elect- insr between the two modes of settino" forth the same cause of action under certain circumstances either as ex contractu or as ex delicto. Preliminary, however, to the discussion thus outlined, I shall state and very briefly explain a principle which will necessarily affect its whole course, and largely determine its re- sults, — the principle of construction as applied to the pleadings themselves. § 546. It was a rule of the common law firmly established and constantly acted upon, — that, in examining and deciding all ob- jections involving either form or substance, every pleading was to be construed strongly against the pleader ; nothing could be presumed in its favor ; nothing could be added, or inferred, or supplied by implication, in order to sustain its sufficiency. This harsh doctrine, unnecessary and illogical in its original concep- tion, and often pushed to extremes that were simply absurd, was the origin of the technicality and excessive precision, which, more than any other features, characterized the ancient system in its condition of highest development. All the codes contain the following provision, or one substantially the same : " In the con- struction of a pleading, for the purpose of determining its effect, its allegations shall be liberally construed with a view to substan- tial justice between the parties." The evident intent of the legislature in this clause was to abrogate at one blow the ancient dogma, and to introduce in its place the contrary principle of a liberal and equitable construction ; that is, a construction in ac- cordance with the general nature and design of the pleading as a whole. This mode of interpretation does not require a leaning in favor of the pleader in place of the former tendency against him ; it demands a natural spirit of fairness and equity in ascer- taining the meaning of any particular averment or group of aver- ments from their relation and connection with the entire pleading and from its general purpose and object. The courts have uni- formly adopted this view of the provision ; and although in par- ticular instances they may sometimes have departed from it, yet, in their announcement of the theory, they have unanimously conceded that the stern doctrine of the common law has been abolished. 600 CIVIL REMEDIES. and that, instead thereof, an equitable mode of construction has been substituted. From the multitudes of decisions which main- tain this position with more or less emphasis I select a few ex- amples, and other illustrations will be subsequently given. § 547. The New York Court of Appeals, while construing a complaint, said : " The language is clearly susceptible of this interpretation ; and if so, that interpretation should be given in preference to [another which was stated]. If the language ad- mits of the latter interpretation, it may be said to be ambiguous, and that is all. It is not true that under the code, if there be uncertainty in respect to the nature of the charge, it is to be construed strictly against the pleader. By § 159, in the con- struction of a pleading, its allegations must be liberally construed with a view to substantial justice." ^ The language used by the Supreme Court of Wisconsin in a similar case is still stronger : " Contrary to the common-law rule, every reasonable intendment and presumj^tion is to be made in favor of the pleading." ^ The same interpretation is given to the provision in Iowa ; the old dogma of leaning against the pleader is abandoned, and a liberal and equitable construction is now the rule.^ The practical force and operation of this principle, and how much effect it actually produces in the judicial process of construing pleadings, can best be seen by an examination of the decisions in which it has been invoked. A few of them have therefore been selected, and placed in the foot-notC* In a very small number of cases, however, the courts seem to have overlooked this change made by the statute, and have expressly declared that the construction must be adverse to the pleader, thus recognizing the ancient rule as still in force ;^ 1 Olcott V. Carroll, 39 N. Y. 436, 438. Robson v. Comstock, 8 Wis. 372, 374, 2 Morse v. Oilman, 16 Wis. 504, 507. 375; Morse v. Oilman, 16 Wis. 504. As See also Hazleton v. Union Bank, 32 further examples, see Bushey r. Reynolds, Wis. 34, 42, 43, which holds that greater 31 Ark. G57 ; Tliompson v. Killian, 25 latitude of presumption is admitted to Minn. Ill; Ferguson v. V. & T. R. R., sustain a complaint, when objection to it 13 Nev. 184; Ciiilders v. Verner, 12 S. C. is not made until the trial, after issues 1 ; Wilkins v. Moore, 20 Kans. 538 ; have been formed by an qipswer. Strong v. IIoos, 41 Wis. 659; Whitman 3 Shank r. Teeple, 33 Iowa, 189, 191 ; v. Watry, 44 id. 491 ; Evans v. Neale, 69 Foster I.-. Elliott, 33 Iowa, 216, 223 ; Gray Ind. 148; Moore v. Moore, 56 Cal. 89; V. Coan, 23 Iowa, 344 ; Doolittle v. Green, Wilcox v. Ilausch, 57 id. 139. 32 Iowa, 123, 124. 6 Commonwealth r. Cook, 8 Bush, 220, ♦ McGlasson v. Bradford, 7 Bush, 250, 224; Wright r. McCormick, 67 N. C. 27. 252; Joubert r. Carli, 26 Wis. 594; Clay And see Rogers v. Shannon, 52 Cal. 99; V. Edgerton, 19 Ohio St. 549 ; supra, § 535; Henley i-. Wilson, 77 N. C. 216 (common- Gunn V. Madigan, 28 Wis. 158, 164; law rule applied; ambiguous language IMPERFECT OR INFORMAL ALLEGATIONS. 601 while in some others the judicial action was clearly based upon that old doctrine, although it was not formally announced in the opinions.^ Under the light of this beneficent but new principle, that pleadings are to be construed fairly, equitably, and liberally, with a view to promote the ends of justice, and not enforce any arbitrary and technical dogmas, I shall proceed to consider, in the order already indicated, the several practical rules mentioned above, which regulate the manner of setting forth the cause of action or the defence. § 548. I. Insufficient, imjjerfect, incomplete, or informal allega- tions ; the mode of objecting to and correcting them. The codes clearly intend to draw a broad line of distinction between an en- tire failure to state any cause of action or defence, on the one side, which is to be taken advantage of either by the general de- murrer for want of sufficient facts, or by the exclusion of all evidence at the trial, and the statement of a cause of action or a defence in an insufficient, imperfect, incomplete, or informal manner, which is to be corrected by a motion to render the plead- ing more definite and certain by amendment. The courts have, in the main, endeavored to preserve this distinction, but not al- ways with success ; since averments have sometimes been treated as merely incomplete, and the pleadings containing them have been sustained on demurrer, which appeared to state no cause of action or defence whatever ; while, in other instances, pleadings have been pronounced wholly defective and therefore bad on de- murrer, or incapable of admitting any evidence, the allegations of which appear to have been simply imperfect or incomplete. It is undoubtedly difficult to discriminate between these two conditions of partial and of total failure ; and it is utterly impos- sible to frame any accurate general formula which shall define or describe the insufficiency, incompleteness, or imperfectness of averment intended by the codes, and shall embrace all the pos- sible instances within its terms. By a comparison of the decided cases, some notion, however, may be obtained of the distinction, recognized if not definitely established by the courts, between the absolute deficiency which renders a pleading bad on demurrer or strictly construed against the pleader ; no Phoenix Ins. Co., 44 Cal. 264 ; Scofield intendments in his favor). v. Whiteiegge, 49 N. Y. 259, 261 ; Holmes ^ For examples, see Hathaway v. v. Williams, 16 Minn. 164, 168. Quinby, 1 N. Y. S. C. 386; Doyle v. 602 CIVIL REMEDIES. at the trial, and the incompleteness or imperfection of allegation which exposes it to amendment by motion ; and in this manner alone can any light be thrown upon the nature of the insuffi- ciency w^ich is the subject of the present inquiry. § 549. The true doctrine to be gathered from all the cases is, that if the substantial facts which constitute a cause of action are stated in a complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete, and defective, such insufficiency pertaining, however, to the form rather than to the substance, the proper mode of correction is not by demurrer, nor by excluding evidence at the trial, but by a motion before the trial to make the averments more definite and certain by amendment.^ From the citations in the foot-note, it is clear that 1 People V. Ryder, 12 N. Y. 433 ; Prin- dle V. Caruthers, 15 N. Y. 425 ; Flanders V. McVickar, 7 Wis. 372, 377 ; Robson v. Comstock, 8 Wis. 372, 374, 375 ; Kuelin V. Wilson, 13 Wis. 104, 107, 108 ; Morse v. Oilman, 16 Wis. 504, 507 ; Kimball v. Darling, 32 Wis. 675, 684; Reeve v. Fraker, 32 Wis. 243 ; Hazleton v. Union Bank, 82 Wis. 34, 42, 43 ; Horn v. Lud- ington, 28 Wis. 81, 83 (a motion made and granted, — a good illustration of de- fective allegations added to) ; Clay v. Edgerton, 19 Ohio St. 549; Winter v. Winter, 8 Nev. 129 (statement of a ma- terial fact by way of recital) ; Saulsbury V. Alexander, 50 Mo. 142, 144 ; Corpenny V. Sedalia, 57 Mo. 88 (a motion in arrest of judgment not proper when a cause of action is stated however defectively); Pomeroy v. Benton, 57 Mo. 531, 550; Hale V. Omaha Nat. Bank, 49 N. Y. 626, 630; Barthol v. Blakin, 34 Iowa, 452; Russell I'. Mixer, 42 Cal. 475 ; Slattery i;. Hall, 43 Cal. 191 (objection that a com- plaint is ambiguous cannot be raised under a general demurrer) ; Blasdel v. Williams, 9 Nev. 1(51 ; Smith v. Dennett, 15 Minn. 81 ; Lewis v. Edwards, 44 Ind. 333, 336 ; Snowden v. Wilas, 19 Ind. 10 ; Lane v. Miller, 27 Ind. 5.34 : Johnson v. Robinson, 20 Minn. 189, 192 ; Mills v. Rice, 3 Neb. 76, 86, 87 ; Trustees v. Odlin, 8 Ohio St. 293, 296. A quotation from a few of these cases will show the exact position taken by the courts in reference to the extent of defect which can and must be cured by motion ; and I select from among those which have discussed the subject in the most general manner. In Prindle v. Caruthers, 15 N. Y. 425, the complaint set out a copy of a written contract made by defendant, and reciting that, " for value received," he "promised to pay H. C. or E. C," &c. ; but it did not, in any other manner, allege a con- sideration. It also stated that " the con- tract is, and was prior to, &c., the property of the plaintiff by purchase," but did not disclose from whom the transfer was made, nor the consideration. The de- fendant demurring for want of sufficient facts, the court held that the copy of the contract as set forth contained a sufficient allegation of a consideration, and added : " The remedy for all defects of this na- ture is by motion to make the faulty pleading more definite and certain; that proceeding has taken the place of demur- rers for want of form." Robson v. Cora- stock, 8 Wis. 372, was an action for malicious prosecution. The complaint merely alleged that the defendant, mali- ciously and without probable cause, pro- cured the plaintiff to be arrested and to be imprisoned, to his damage, &c., but did not state the nature of the indictment, nor in what the charge consisted, nor even that it was false, nor that there had been a trial, nor that tlie plaintiflT had been discharged or acquitted. The de- IMPERFECT OK INFORMAL ALLEGATIONS. 603 the courts have, with a considerable degree of unanimity, agreed upon this rule, and have in most instances applied it to defects fendant answered by a general denial; and, at the trial, the plaintitt had a ver- dict. On appeal from the judgment, the court, by Cole J., held (pp. o74, 375) that the complaint was exceedingly defective and informal in its manner of setting out the cause of action; but it was cured by the verdict. Tlie piaintifi' must have proved a discharge or acquittal, or else he could not have obtained a verdict. The code requires a liberal construction ; and the defendant should have moved that the pleading be made definite and certain by supplying the omitted aver- ments. In Morse v. Oilman, 16 Wis. 504, the complaint alleged that defend- ant entered into a written contract with one Merrick for grading at a specified price per cubic yard ; that the work had been completed by M. according to the agreement ; that there was due there- on a certain named sum ; and that the demand had been assigned by M. to the plaintifl"; but it did not to any further extent state the provisions of the contract. At the trial, all evidence on the part of the plaintiff was excluded, and the com- plaint was dismissed. In reversing this ruling, the court, by Dixon C. J., said (p. 507) : " That the contract between M. antJ the defendant is not set out, as it undoubtedly should have been, is not an objection which can be taken in this way. The remedy of the defendant for this de- fect is by motion to require the complaint to be made more definite and certain by amendment. A complaint to be over- thrown by demurrer, or by objection to evidence, must be wholly insufficient. If any portion of it, or to any extent it pre- sents facts sufficient to constitute a cause of action, or if a good cause of action can be gatliered from it, it will stand, how- ever inartificially these facts may be pre- sented, or however defective, uncertain, or redundant may be the mode of their treatment. Contrary to the common-law rule, every reasonable intendment and presumption is to be made in favor of the pleading; and it will not be set aside on demurrer unless it be so fatally defective, that, taking all the facts to be admitted, the court can say they furnish no cause of action whatever ; " citing and approving Cudlipp V. Whipple, 4 Duer, 610 ; Ora- ham V. Camman, 5 Duer, 697 ; Broderick V. Poillon, 2 E. D. Smith, 554. In Sauls- bury V. Alexander, 50 Mo. 142, the peti- tion was, '■ Plaintiff states that defendant owes him, &c., for work done and cash lent, the particulars of which appear from the following account," &c., and conclud- ing with a statement of the balance due, and a prayer for judgment. Tiie defend- ant, making no objection to this pleading, answered, setting up only that the work had been negligently done, and that he had already paid more than its value. The plaintiff recovering at the trial, the defendant moved in arrest of judgment, on the ground that no cause of action was averred. This motion having been granted by the court below, the plaintiff appealed. The opinion of the Appellate Court, by Bliss J., proceeds as follows : " The petition is informal and defective, and there are some cases which seem to warrant the view taken by the court ; but the tendency of our more recent de- cisions is to require all objections of form to be taken before the parties proceed to trial." After admitting that the cause of action was imperfectly stated, but that the main fact of the plaintift''s work, &c., for the defendant was admitted by the answer, which took issue merely upon the character of the labor, the opinion goes on ; " Now, it is altogether uncon- scionable to permit him to arrest the judgment, because the charge which he admitted in full is defectively laid. When we say that a judgment should be arrested if the petition fails to show a cause of ac- tion, we speak of substantial, and not of formal, omissions. The latter are sup- plied by intendment, and will be pre- sumed, after verdict, to have been proved. But when the petition shows that the plaintiff has no cause of action, then the verdict should be treated as a nullity. But if the defects are merely of omission, and if, when supplied, a com- plete case would be made, the omission being of facts which the jury must have 604 CIVIL EEM£DIES, and mistakes having the same general features, and have some- times severely strained the doctrine of liberal construction in found, tlien the judgment is a legitimate sentence of tlie law." In the recent case of Ponieroy v. Benton, 57 Mo. 531, 550, Sherwood J. declares the rule to be, that if the petition, however inartificially drawn, do but state a cause of action, and no objections are taken to its formal character, by demurrer or answer, or by motion to correct, tlien all objections are waived ; and he very pertinently adds that " it seems often to be forgotten that we have a code in Missouri." The same doctrine was announced in Elfrank v. Seller, Hi Mo. 13-1 ; Russell v. State Ins. Co., 55 Mo. 585 ; and Biddle v. Ramsey, 62 Mo. 153. The position taken by the court in these cases, and in Saulsbury v. Alexander, supra, is a wide departure from that maintained by some of the earlier decisions of tlie same court, wliich arrested judgments for the most trivial defects of the petition, equalling, if not, Indeed, surpassing, the devotion to tech- nicality shown by the Englisli common- law tribunals. Blasdel v. Williams, 9 Nev. 161, was an action to quiet title under express provisions of the statute (code, § 250). The complaint alleged that the plaintiffs have the legal title, and are in possession ; that the defendant claims an estate or interest in said land adverse to the plaintiff 's right ; that defendant has no lawful interest or estate therein ; or in any portion thereof, or valid claim or title thereto ; with a prayer that de- fendant's claim might be adjudged void, and the plaintiffs' title quieted. The an- swer was a denial, no demurrer being in- terposed or motion made. This complaint being objected to, on appeal, the court held that the plaintiffs sliould have stated more than the mere general averments in respect to the defendant's adverse claim above quoted. They should disclose its nature, the estate which he asserts in the land, so as to show how it is prejudicial to the plaintiffs' interest, and must then negative tliese allegations. Nevertheless, the pleading as it stood was sufficient in the absence of a demurrer. The court said : " It is an attempt to state a cause of action, and is simply a defective state- ment of such cause, ratlier than an abso- lute lack thereof. This case is a very excellent illustration of the rule, and would have been perfect if the court iiad said that the pleading must stand in the absence of a motion to correct it, instead of " in the absence of a demurrer ; " for tiie defect was exactly of the kind not reached by a demurrer. The court, in Mills L'. Rice, 3 Neb. 7G, 80, 87, said that when a petition is uncertain or indefinite in its allegations, when it attempts to set up a good cause of action, but the defect does not go to the length of omitting to state any cause of action, the defendant must move to correct ; he cannot take advantage of it by demurrer. The fol- lowing cases are additional examples, and they generally sustain the distinction stated in the te.xt and the rule there laid down: BalU-. Fulton, 31 Ark. 379 (the rule of the text, § 549, quoted, approved and followed) ; Kalckhoff y. Zoehriaut, 40 Wis. 427; Lash v. Christie, 4 Neb. 262; Surringer v. Paddock, 31 Ark. 528 ; AuU II. Jones, 5 Neb. 500 ; Parrar v. Triplet, 7 id. 237; Dorsey v. Hall, 7 id. 400; State V. North. Belle Min. Co., 15 Nev. 385 ; Dist. Townp. of Coon v. Board of Directors, 52 Iowa, 287 ; McCormick r. Basal, 40 id. 235 ; Bradley v. Parkhurst, 20 Kan. 402 ; Walter v. Fowler, 85 N. Y. 621 ; Marie v. Garrison, 83 id. 14, 23; Calvo V. Da vies, 73 id. 211 ; Kaster v. Raster, 52 Ind. 531 ; Brooklyn, &c. Co. v. Pura- phrey, 59 id. 78; U. S. Express Co. V. Keefer, 59 id. 203 ; City of Evansville V. Thayer, 59 id. 324 ; Pennsylvania Co.;;. Sedgwick, 59 id. 330; Rees v. Cupp. 59 id. 566 ; Shaw v. Merchants' Bank, CO id. 83 ; Boyce v. Brady, 61 id. 432 ; Sebbitt V. Stryker, 62 id. 41 ; Barrett v. Leonard, GO id.'422 ; Wiles v. Lambert, 60 id. 494; Proctor V. Cole, 66 id. 676; Dale v. Thomas, 67 id. 570 ; Earle v. Patterson, 67 id. 503 ; Milroy i-. Quinn, 69 id. 406 ; Lee V. Davis, 70 id. 404 ; Smitli v. Free- man, 71 id. 229 ; Frayser v. Kerschner, 73 id. 183 ; Ohio, &c. R. R. v. Colburn, 73 id. 201 ; Snyder v. Baber, 74 id. 47 ; Gentz r. Martin, 75 id. 228; Drais »•. Ilogan, 50 Cal. 121 ; Jameson v. King, 50 IMPERFECT OR INFORMAL ALLEGATIONS. 605 order to enforce it. Tlius, if instead of alleging the issuable facts the pleader should state the evidence of such facts, or even a portion only thereof, unless the omission was so extensive that no cause of action at all was indicated, or if he should aver con- clusions of law, in place of fact, the resulting insufficiency and imperfection would pertain to the form rather than to the sub- stance, and the mode of correction would be by a motion, and not by a demurrer. It is virtually impossible, however, to lay down a dividing-line, so that on the one side shall full all the errors which are venial, and on the other all those which are fatal. While in most instances the courts have held that a motion is the only means of removing the defect, and therefore that a neglect to make a motion waives all objection without any refer- ence to the stage of the cause, yet in some cases a considerable stress has been laid upon the effect of a verdict in curing the error.i ji^n^ in certain decisions the language of the judges tends to create an unnecessary confusion, and to incorporate an addi- tional element of doubt into the rule, which is not at best, from its ver}' nature, capable of absolute certainty. In the cases re- ferred to, the courts have declared that if the defendant omits to move to make the pleading more definite and certain, or to demur, but answers and goes to trial, the objection is Avaived.^ This form of expression is a plain departure from the rule as given above, and is self-contradictory. The very distinctive feature of the class of defects under consideration is, that they do not render a pleading demurrable, but only expose it to amendment by motion. A failure to demur is therefore entirely immaterial ; it does not waive anything, because the demurrer if resorted to would have accomplished nothing. Doubt and obscurity alone as to the true meaning and the exact force of the rule can arise from this careless use of language. id. 132 ; Mayor, &c. v. Sigmont, 50 id. the above cases, cited from that State, 298. hold that such a motion is not proper 1 See Eobson v. Corastock, 8 Wis. when the petition is simply defective and 372, 374, 375 ; Hazleton v. Union Bank, imperfect in its statement of the cause of 32 Wis. 34, 42, 43; Clay v. Edgerton, 19 action, and should only be made when it Ohio St. 549 ; Saulsbury v. Alexander, wholly fails to set forth any cause of ac- 60 Mo. 142, 144 ; Corpenny v. Sedalia. 57 tion ; the mere imperfection is cured by Mo. 88 ; Pomeroy v. Benton, 57 Mo. 5-31, the verdict. 550; Blasdel v. Williams, 9 Nev. 161; 2 Pomeroy u. Benton, 57 Mo. 531, 550 ; Smith V. Dennett, 15 Minn. 81. In Mis- Blasdel i-. Williams, 9 Nev. 161 ; Smith souri, and in a few other States, a motion v. Dennett, 15 Minn. 81 ; Johnson v. Kob- in arrest of judgment is permitted by the inson, 20 Minn. 189, 192. practice under some circumstances, and 606 CIVIL REMEDIES. § 550. It has even been held that where a cause of action is so defectively set out that a demurrer for want of sufficient facts would have been sustained, but the adverse party answers instead, and goes to trial, the objection to the pleading is thereby waived, and evidence in its support must be admitted.^ Other cases are directly opposed to this position, and expressly declare that if the complaint or petition fails to state any cause of action the objec- tion is not waived, and all evidence should be excluded at the trial, even though the defendant has answered ; and this ruling is in exact conformity with the provisions of all the codes regu- lating the use of demurrers.^ The doctrine first stated is clearly erroneous, and the dicta or decisions which sustain it ought to be wholly disregarded; it violates the section of the codes wliich enacts that the absence of sufficient facts as a ground of demurrer is not abandoned by an omission to demur; and it utterly ignores the established distinction between a failure to state any cause of action and the statement of a cause of action in an imperfect and defective manner. It is only when the answer itself by some of its averments supplies the omission in a complaint or petition otherwise demurrable, that the fault is cured and the objection waived by answering ; mere answering instead of demurring can- not produce that effect.^ If the averments are so defective, if the omission of material facts is so great, that, even under the rule of a liberal construction, no cause of action is stated, it is not a mere case of insufficiency, but one of complete failure ; and the complaint or petition should be dismissed at the trial, or a judgment rendered upon it should be reversed. A few examples are placed in the foot-note.* While the general doctrine before ' Tread way I'. Wilder, 8 Nev. 91. intended and attempted to set out, but 2 Garner v. McCuUough, 48 Mo. 318; wliieh he failed to set out b\' reason of Scofield '•. Whitelegge, 49 N. Y. 259, 261, omissions and defects in the material alle- 262 ; Saulbbury v. Alexander, 50 Mo. 142, gations ; and it is to be distinguished 144. from a cause of action entirely bad in 8 Scofield V. Whitelegge, 49 N. Y. law, no matter how complete and perfect 259,261,262; Bate c Graham, 11 N. Y. maybe the averments by wliich it is 237; Louisville Canal Co. v. Murphy, 9 stated. In the first case a pure question of Bush, 522, 529. pleading is involved, and the complaint * Antisdel v. Chicago and N. W. R. R., or petition is demurrable because the 26 Wis. 145, 147; Tonilinson v. Monroe, rules of pleading have been essfH?tV(% vio- 41 Cal. 94 (an ambiguous and uniiitelli- latcd ; in the second case a pure question gible complaint) ; Holmes v. Williams, 16 of law is involved, and the complaint or Minn. 164,168. The case described in petition is demurrable, although the rules the text is that of a cause of action, good of pleading have been in every respect if properly pleaded, which the plaintiff complied with. IMPEKFECT OR INFORMAL ALLEGATIONS. G07 stated, as to the nature of insufficient and defective averments, has been universally approved in the abstract, it has sometimes been departed from, and pleadings have been wholly condemned, which, according to the criterion established by numerous cases, set forth a cause of action, although in an incomplete and imper- fect manner. Some illustrations of this strict method of decision are given in the note.^ 1 Scofield V. Whitelegge, 49 N. Y. 259 ; 261 ; Hathaway i-. Quinby, 1 N. Y. S. C. 386; Doyle v. Phoenix Ins. Co., 44 Cal. 264, 208 ; Hohnes v. Williams, 16 Minn. 164, 168. Scofield v. Whitelegge was an action to recover possession of a chattel. The complaint alleged that the defendant had become possessed of and wrongfully detained from the plaintiff a piano of the value of, &c., and demanded the usual judgment. The answer denied the pos- session of any property belonging to the plaintiff, denied tiie wrongful taking, and denied the plaintiff's ownership. The complaint was dismissed at the trial, on the ground that it stated no cause of ac- tion. The opinion of the New York Court of Appeals, by Folger J., after re- citing the common-law rule in replevin, that the action could only be maintained by one who had the general or a special property in the ciiattel, that this property must have been averred in the declara- tion, that the action under the code takes exactly the place of the old replevin, and that the plaintiff in it must have a prop- erty in the chattel, proceeds as follows (p. 261) : "Nor is it less necessary now than then for the plaintiffto aver the facts which constitute his cause of action. He must allege the facts, and not the evi- dence ; he must allege facts, and not con- clusions of law. The plaintiff here alleges that the defendant wrowifulhj detains from him the chattel. If, indeed, this be true, then it must be that the plaintiff has a general or special property in the chattel and the right of immediate possession. But unless he has that general or special property and right of immediate posses- sion, it cannot be true that it is wrongfully detained from him. The last — the wrong- ful detention — grows from the first, — the property and right of possession. The last is the conclusion. The first is the fact upon which that conclusion is based ; it is the fact which, in a pleading, must be alleged. Is not the statement of a conclusion of law, without a fact averred to support it, an immaterial statement 1 " This decision is certainly technical to the last degree when tested by the standard established in the codes and in other cases. The complaint was undoubtedly imperfect ; but it set forth a cause of ac- tion, although in an incomplete manner. The learned judge concedes that the aver- ment " the defendant wrongfully detains from the plaintiff " necessarily presupposes and implies a property and right of pos- session in the plaintiff. The only defect, therefore, consisted in an allegation of the evidence, or perhaps of the legal con- clusion, instead of the issuable fact. The defendant was not misled ; his answer shows that he understood the claim, and it raised all the issues upon which he re- lied. The complaint is, indeed, a striking illustration of a defective pleading, which should be corrected by motion, and not attacked by demurrer ; and the opin- ion is a clear and convincing argument showing why such a motion ought to be granted ; but it violates the liberal prin- ciple of construction, and returns to the common-law rule requiring a strict inter- pretation against the pleader. The facts and opinion in Hathaway v. Quinby, which is quite similar in its general character, and in Doyle v. Phoenix Ins. Co., may be found supra, §§ 531, 535. The following cases give further illustra- tions of the rule as stated in the text, — that defects of form merely are waived by going to trial without objection and are cured by verdict, while defects which go to the cause of action itself are not thus waived nor cured. There is not, however, an absolute unanimity on this point among the decisions ; some of them cannot be reconciled with the general cur- rent of authority, nor, in my opinion, 608 CIVIL REMEDIES. § 551. II. Redundant^ immaterial, and irrelevant allegations ; the mode of objecting to and correcting them. In a legal action all matter stated in addition to the allegations of issuable facts, and in an equitable action all such matter in addition to the aver- ments of material facts affecting the remedy, is unnecessary, and therefore immaterial and redundant. Whenever, therefore, the issuable facts constituting a legal cause of action, or the material facts upon whicli the right to equitable relief is wholly or par- tially based, are pleaded, all the details of probative matter by which these facts are to be established, and all the conclusions of law inferred therefrom, are plainly embraced within this descrip- tion. It would not be strictly correct to say that statements of evidence or of legal conclusions are, under all circumstances, redundant. If a complaint or petition should, in violation of the principles established by the reformed procedure, allege the evi- dence of some issuable or material fact instead of the fact itself, or should state a conclusion of law in place of the proper fact or facts which support it, these averments would be irregular, im- perfect, insufficient, and liable to correction by a motion ; but they might not be necessarily redundant. If the pleading was not reformed, and if the defect was not so serious as to render it demurrable, it would be treated on the trial as sufficient; and the statement of probative matter or of legal conclusions would take the place of the issuable or material facts which ought to have been averred, and would thus become material. It is self-evident, however, that if the essential doctrines of pleading are complied with, and the proper facts constituting the cause of action, or with the letter and spirit of the codes. 173 ; Streeter v. Cliicago, &c. R. R., 40 Jefferson v. Hale, 31 Ark. 28G ; People v. Wis. 294, 301 ; Univ. of Notre Dame v. Sloper, Idaho R., 183 ; Hawse v. Burg- Shanks, 40 id. 352 ; Smith v. Supervisors, mere, 4 Col. 313 ; Revelle's Heirs v. &c., 45 id. 686 ; Vassar v. Thompson, 46 Claxon's Heirs, 12 Bush, 558; Thompson id. 345; Stetlon t;. Chicago, &c. R. R., 40 V. Killian, 25 Minn. HI ; Reed i'. Pixley, id. 609; Gander r. State, 50 Ind. 539,541 ; 25 id. 482 ; Chesterson v. Munson, 27 id. Green v. Louthain, 49 id. 139; Donellanr. 498 ; International B'k v. Franklin Co., 65 Hardy, 57 id. 393 ; Calvin v. "Woolten, 66 Mo. 105 ; State v. Bartlett, 68 id. 581 ; id. 464 ; Indianapolis, &c. R. R. v. Mc- Richardson v. Hoole, 13 Xev. 492 ; City of Caffoy, 72 id. 294 ; Parker v. Clayton, 72 Youngstown v. Moore, 30 Ohio St. 138; id. 307; Newman v. Perrell, 73 id. 153; State V. Cason, 11 S. C. 392; Edgcrly v. Charlestown School Dist. v. Hay, 74 id. Farmers' Ins. Co., 43 Iowa, 587 ; Meyer 127 ; Smock i\ Harrison, 74 id. 348 ; Lewis V. Co. of Dubuque, 48 id. 592; Polster v. v. Bortsfield, 75 id. 390; King v. Mont- Rucker, 16 Kans. 115; Moody v. Arthur, pomery, 50 Cal. 115; Hanlin i". Martin, 16 id. 419 ; Castle v. Houston, 19 id. 417 ; 63 id. '321. Sheridan v. Jackson, 72 N. Y. 170, 172, REDUNDANT OR IRRELEVANT ALLEGATIONS. 609 affecting the equitable relief, are all set forth, then any detail of evidence or any conclusion of law is necessarily surplusage, and redundant. An allegation is irrelevant when the issue formed by its denial can have no connection with nor effect upon the cause of action. Every irrelevant allegation is immaterial and redund- ant : but the converse of this proposition is not true ; every im- material or redundant allegation is not irrelevant. This general description can only be explained and illustrated by an examina- tion of individual cases, of which a few have been collected in the note as examples.^ § 552. The rule is established by the unanimous decisions of the courts, as well as by the provision found in the codes, that the proper and only method of objecting to and correcting re- dundant, immaterial, or irrelevant allegations in a pleading, is a motion to strike out the unnecessary matter, and not a demurrer, nor an exclusion of evidence at the trial.^ The new procedure thus furnishes, by means of these motions in cases of insuffi- ciency, redundancy, or irrelevancy, a speedy and certain mode of enforcing the fundamental doctrines of pleading what it has established, and of causing the complaints or petitions and answers to present single, clear, and well-defined issues. At the same time it prevents a sacrifice of substance to form, and a decision of controversies upon technical points not involving the merits, by requiring these objections to be taken before the trial, and by regarding them as waived if the prescribed mode of rem- edy is not resorted to. The courts have it in their power, by 1 Bowman v. Sheldon, 5 Sandf. 657, Ins. Co., 3 Duer, 680. See also the addi- C60 ; Fasnacht v. Stehn, 53 Barb. 650 ; tional cases cited in the next following Hunter v. Powell, 15 How. Pr. 221 ; Fab- notes. ricotti r. Launitz, 3 Sandf. 743. See - Loomis v. Youle, 1 Minn. 175; Bank v. Kitching, 7 Bosw. 664; 11 Abb. O'Connor v. Koch, 56 Mo. 253; King i-'. Pr. 435; Caliill v. Palmer, 17 Abb. Pr. Enterprise Ins. Co., 45 Ind. 43, 55 ; Hynds 196; Decker v. Mathews, 12 N. Y. 313; r. Hays, 25 Ind. 31; Smith v. Country- Gould V. Williams, 9 How. Pr. 51 ; St man, 30 N. Y. 655 ; Simmons v. Eldridge, John V. Griffith, 1 Abb. Pr. 39; O'Connor 29 How. Pr. 309 ; 19 Abb. Pr. 296 ; Cahill V. Koch, 66 Mo. 253 ; Clague v. Hodgson, v. Palmer, 17 Abb. Pr. 196. See also 16 Minn. 329, 3-34, 335; King v. Enter- Ylic t i-. Sherwood, 38 Wis. 159; Magee prise Ins. Co., 45 Ind. 43, 55; Hynds v. ?;. Board of Supervisors, 38 id. 247 ; Biggs Hays,25 Ind. 31; Booheri'. Goldsborough, v. Biggs, 50 id. 443; Hoffmann v. Kop- 44 Ind. 490, 498, 499 (duplicity) ; Loomis pelkora, 8 Neb. 344; Johns v. Potter, 55 i". Youle, 1 Minn. 175 ; Clark r. Harwood, Iowa, 665 ; Cooper v. French, 52 Id. 531 ; 8 How. Pr. 470; Edgerton r. Smith, 3 Schoonover v. Hinckley, 46 id. 207; Duer, 614; Sellar v. Sage, 12 How. Pr. Davis v. C. & W. W. R. R., 46 Id. 389; 531 ; 13 How. Pr. 230 ; Lee v. Elias, 3 Gabe v. McGinnis, 68 lud. 538 ; Harris v. Sandf. 736 ; Lamoreux v. Atlant. Mut. Todd, 16 Hun, 248. 39 610 CIVIL REMEDIES. encouraging .these classes of motions, and by treating tliem as liiglily remedial and important, to shape the pleading into an har- monious and consistent system, constructed upon the few natural and philosophical j^irinciples which were adopted as its founda- tion ; or they maj^ on the other liand, by discouraging a resort to these corrective measures, and by treating them as idle, unneces- sary, or vexatious, suffer those principles to become forgotten, and to be finally abandoned, and may, thereby, lose all the benefits which were designed, and which could have been obtained from the reform. § 553. III. The doctrine that the cause of action or defence proved must corresiJond with the one alleged. The codes describe three grades of disagreement between the proofs at the trial and the allegations in the pleadings to which such proofs are directed: namely, (1) An immaterial variance, where the difference is so slight and unimportant that the adverse party is not misled thereby, and in which case the court wiR order an immediate amendment without costs, or will treat the pleading as though amended, permitting the evidence to be received and considered; (2) A material variance, where although the proof has some relation to and connection with the allegation, yet the difference is so substantial that the adverse party is misled by the averment, and would be prejudiced on the merits, in which case the court may permit the pleading to be amended upon terms ; (3) A com- plete failure of proof, where the proofs do not simply fail to conform with the allegation in some particular or particulars, but in its entire scope and meaning, or, in other words, the proof establishes something wholly different from the allegations. In this case no amendment is permitted, but the cause of action or defence is dismissed or overruled.^ In these statutory provisions the doctrine that the proofs must correspond with the allegations is, in a somewhat modified form, united with the subject of amendment, by which the minor grades of the variance may be obviated. In the present subdivision I shall consider only the former of these two topics, and shall discuss the scope and effect of the general rule, that the cause of action, or the defence as proved, must correspond with that averred in the pleading.^ ^ See these provisions quoted s«/j)Y7, this rule: Bishop ?-. Griffith, 4 Col. 68; §135. Burdsall i\ \Vap:goner, 4 id. 256; Board- 2 The following cases will illustrate man i-. Griffin, 52 lud. 101 ; Long v. Doxey, ALLEGATIONS AND PROOFS MUST CORRESPOND. 611 § 554. The very object and design of all pleading by the plain- tiff, and of all pleading of nen- matter by the defendant, is that the adverse party may be informed of the real cause of action or defence relied upon by the pleader, and may thus have an oppor- tunity of meeting and defeating it if possible at the trial. Unless the petition or complaint on the one hand, and the answer on the other, fully and fairly accomplishes this purpose, the pleading would be a useless ceremony, productive only of delay, and the parties might better be permitted to state their demands orally before the court at the time of the trial. The requirement, therefore, that the cause of action or the affirmative defence must be stated as it actually is, and that the proofs must estab- lish it as stated, is involved in the very theory of pleading. It frequently happens, however, and from the very nature of the case it must happen, that the facts as proved do not exactly agree wHth those alleged. To determine the effect of such a disagree- ment we must recur to the reason and object of the rule, and they furnish a certain and equitable test. If the difference is so slight that the adverse party has not been misled, but, in preparing to meet and contest the case as alleged, he is fully prepared to meet and oppose the one to be actually proved, then no effect what- ever is produced by the variance ; to impose any loss or penalty on the pleader would be arbitrary and technical. In the second place, the difference, while it does not extend to the entire cause of action or defence, may be so great in respect to some of its particular material facts as to have misled the adverse party, so that his preparation in connection with that particular is not adapted to the proofs which are produced. In such circum- stances an amendment is proper because the variance is partial, but it is obviously equitable that terms should be imposed. Finally, if the divergence is total, that is, if it extends to such an important fact, or group of facts, that the cause of action or defence as proved would be another than that set up in the plead- ings, there is plainly no room for amendment, and a dismissal of the complaint or rejection of the defence is the only equitable result. It should be noticed that, in order to constitute this GO id. ."85; Baker v. Dessauer, 49 id. 28; son, 6 Hun, "26; Moudran r. Soux, 51 Stroup V. State, 70 id. 495; Jefferson ville, Cal. 151; Hopkins r. Oraill, 51 id. 537; &c. R. R. V. Worland, 50 id. .339; Arnold Bolen v. San Gorgonio Co., 55 id. 164; V. Angell, 62 N. Y. 508 ; Vrooman v. Jack- McCord v. Seale, 56 id. 262. 612 CIVIL REMEDIES. total failure of proof, it is not necessary for the discrepancy to include and affect each one of the averments. A cause of action as stated on the pleadings might consist, say, of five distinct issuable or material facts ; on the trial four of these might be proved as laid, while one so entirely different might be substi- tuted in place of the fifth that the cause of action would be wholly changed in its essential nature. § 555. The conclusions reached in the foregoing analysis, and the reasons ^Yhich support them, are fully sustained by the de- cided cases which constantly discriminate between the immaterial variance which is disregarded, and the total failure of proof which is fatal to the cause of action or defence. It is of course impossible to give any comprehensive formula which shall deter- mine these two conditions ; the scope and operation of the doc- trine can only be learned from the decisions which have applied it, of which a few are selected as illustrations. In the following instances the variance was held to be immaterial : In an action upon a written contract which was properly set out in the com- plaint except that one material stipulation was omitted, but a correct copy of it had been served upon the defendant's attor- ney.^ In an action against a city for injuries done to the plain- tiff's house and grounds by the unlawful construction of sewers, sidewalks, &c., it was held that, if the manner of constructing the works was unlawful, the failure to allege negligence in the complaint was not material, and might be either disregarded or amended at any stage of the proceeding ; ^ in an action upon a warranty given in a sale of horses, where the complaint stated in general terms that the defendant warranted them to be sound, while the proof was that he warranted them to be sound as far as he knew ; that they were unsound, and that he knew them to ])e so, the court saying that an amendment if necessary should be made at any time even by the appellate court ; -^ in an action upon a warranty of quality, where the complaint set forth an express warranty, and on the trial facts were proved from which a warranty would be implied ; * in an action against two de- 1 Fisk r. Tank, 12 Wis. 276, 301. ■« GiflTert v. West, 38 Wis. 617, 621 ; 2 Harper v. Milwaukee, 30 Wis. 305, Leopold v. Vankirk, 27 Wis. 152, 155; 377, 378. " The alleged variance did not s. c. 20 Wis. 548, 551. At tlie common change the r/ravamen of the action." law, this was the only mode of alleging ' Chatfield v. Frost, 3 N. Y. S. C. 357. an implied warranty. ALLEGATIONS AND PROOFS MUST CORRESPOND. 613 fendants to recover damages for injuries done to the plaintiff's sheep by the defendants' dogs, the petition alleging that " a cer- tain pack or lot of dogs owned by the defendants worried, &c., certain sheep of the plaintiff," while the proof showed that one of the defendants owned a portion of the dogs, and the other defendant the remainder, but there was no joint ownership ; ^ in an action by a husband and wife against a husband and wife for an assault and battery by the female defendant upon the female plaintiff, the petition alleging that the plaintiff Mary D. is the wife of the plaintiff, James D., and the defendant, Martha H., is wife of the defendant, Aaron H., and proof was admitted that the parties were respectively man and wife at the time of the affray ; ^ in an equitable action brought to set aside a conveyance of land made to the defendant, on the ground of his alleged fraud, and the plaintiff failed to make out a case of fraud, but did prove one of mutual mistake ;^ in an action for work and labor stated in the complaint to have been done for an agreed compensation, but at the trial the plaintiff proved the value as upon a quantum meruit.^ The Supreme Court of North Carolina has gone so far as to hold in one case where the complaint set up a cause of action for the conversion of chattels, and the proof at the trial showed only a liability upon an implied promise for money had and received, that the plaintiff could recover, since all distinction between forms of action had been abolished, and amendments were freely allowed.^ This decision, as will be seen, stands opposed to the whole current of authority in other States. The objection that the proof varies from the allegation must be taken at the trial ; if omitted, then it cannot be after- wards raised on appeal.^ The reason is obvious ; when made at 1 McAdams v. Sutton, 24 Ohio St. 333. 31 Ark. 155; Brugner v. U. S., 1 Dacota, 2 Dailey y. Houston, 58 Mo. 361, 366. 5; McMalian v. Miller, 82 N. C. 317; 3 Montgomery v. Shockey, 37 Iowa, Gaines v. Union Ins. Co., 28 Ohio St. 107, 109; Sweezey v. Collins, 36 Iowa, 418; Sibila i-. Bahney, 34 Ohio St. 399; 589, 592. Dodd v. Denney, 6 Oreg. 156; Miller v. 4 Sussdorf V. Schmidt, 55 N. Y. 319, Hendig, 55 Iowa, 174 ; Peck v. N. Y. & 324. N. J. R. K., 85 N. Y. 246; Durnford v. sOates V. Kendall, 67 N. C. 241. Weaver, 84 id. 445; Thomas r. Nelson, But see Parsley v. Nicholson, 65 N. C. 69 id. 118; Lifler v. Sherwood, 21 Hun 207, 210, which maintains the general 573; Clayes v. Hooker, 4 id. 231; Cody doctrine. v. Bemis, 40 Wis. 660 ; Flanders v. Cot- 6 Speer v. Bishop, 24 Ohio St. 598. trell, 30 id. 564 ; Giffert v. West, 37 id. See, also, as further examples of imma- 115; Chunot v. Larson, 43 id. 5o6; Rus- terial variance, Chamballe v. McKenzie, sell v. Loomes, 43 id. 545; Aschermann 614 CIVIL REMEDIES. the trial, there is an opportunity for removing it at once by amendment. § 556. The following are examples of a complete failure of proof. In all these cases one cause of action was alleged by the plaintiff, and another one was proved or attempted to be proved at the trial, but was rejected by the court. The New York Court of Appeals, while passing upon the admissibility of evidence which made out a liability under implied contract, in order to sustain a complaint that charged a fraudulent transaction and sought to recover the money obtained by means of such fraud, used the following language in a recent case : " It is insisted that, under the code, forms of action are abolished, and that the facts show- ing the right of action need only be stated. This is correct, but it does not aid the plaintiff. The plaintiff had a cause of action against the defendant upon an account for moneys advanced for him. Instead of stating this cause of action, the allegation is in substance that he paid him money as the price of stocks fraudu- lently sold by defendant to plaintiff, which contract has been rescinded by the plaintiff, and a return of the money demanded, which has been refused by the defendant. These causes of ac- tion differ in substance. The former is upon contract, the latter in tort ; and the law will not permit a recovery upon the latter by showing a right to recover upon the former." ^ It is the set- tled rule under the codes, contrary- to that prevailing in the com- mon-law system, that when a cause of action depends upon the performance of some act, but under certain circumstances the per- formance may be executed and the cause of action still remain in force, the facts showing the excuse must be alleged if the plain- tiff intends to rely upon it, and not upon the performance. The V. Wrigglesworth, 44 id. 255; Union Bk. Iowa Homestead Co., 48 id. 270; York v. V. Roberts, 44 id. 373 ; Delaplaine v. Wallace, 48 id. 305 ; Fauble r. Davis, 48 Turnley, 45 id. 31; llyan v. Springfield id. 4G2 ; McKoon v. Ferguson, 47 id. CSC; Ins. Co., 46 id. 071 ; Weller v. Bergentlial, Arnold v. Angell, 02 N. Y. 508; Harris v. 50 id. 474 ; Galloway v. Stewart, 49 Ind. Kasson, 70 id. 381 ; Stowell t-. Eldrod, 39 156 ; Glasgow v. IIoLbs, 52 id. 230, 242 ; Wis. G14 ; Cowles v. Warner, 22 Minn. Wright I'. Johnson, 50 id. 454; Stroup r. 449; Cunimings i-. Long, 25 id. 337; State, 70 id. 405; City of Huntington v. Vroonian v. Jackson, 6 Hun, 320; South- Mendenhall, 73 id. 4G0. wick v. Fishkill Bk., 84 N. Y. 420 ; Gas- 1 Degraw v. Elmore, 50 N. Y. 1. The ton v. Owen, 43 Wis. 103; Strecter v. following cases give further examples of Chicago, &c. R. R., 45 id. 383; Jefferson- a material or fatal variance or a failure ville, &c. R. R. v. Worland, 60 Ind. .339; of proof: Bishop v. Griffeth, 4 Col. 08; Hinkle v. San Francisco, &c. R. R., 55 Proctor V. Rief, 52 Iowa, 592; Burns v. Cal. 027; and cases cited a/i^e, under § 553. ALLEGATIONS AND PROOFS MUST CORRESPOND. 615 plaintiff is no longer permitted to aver the performance of the required act, and on the trial prove the circumstances which ex- cuse such performance, or prove any otlier alternative than the one specially alleged. Thus where, in an action against indors- ers, the complaint stated a demand at maturity, and notice thereof to the defendants, and on the trial the plaintiff offered to prove facts vvhicli would excuse any demand, the evidence was held inadmissible, and the action was dismissed;^ and in a similar case under a statute which required that, in order to make an indorser liable, due diligence must be used by the institution of a suit against the maker, or else that such a suit would be unavail- ing, the petition alleged that due diligence had been used by com- mencing a suit against the maker, in which judgment had been recovered, and an execution had been issued and returned un- satisfied ; and it was held that the other alternative, the maker's insolvenc}'^, and the consequent unavailing character of a suit against him, could not be shown on the trial ;2 and in a similar action against the drawer of a bill or the indorser of a bill or note, when the petition avers the demand and notice in order to charge the defendant, a waiver of these steps cannot be proved, — for example, a subsequent promise by the defendant to pay the note when the steps necessary to charge him had been omitted.^ § 567. The following are miscellaneous instances of a fatal dis- agreement between the cause of action pleaded and that proved on the trial : In an action to recover damages for trespass to lands, the complaint alleging that the plaintiffs were possessed of the premises ; on the trial, however, it appeared that they were remainder-men not yet entitled to the possession, while the de- fendants were rightfully in possession, but had committed acts of waste for which they would be liable in an action properly brought. This cause of action being wholly different from that alleged, the complaint was dismissed.* The petition in an action of forcible entry and detainer stating that the defendant was holding over after the expiration of liis lease, the plaintiff was not permitted to show that he obtained possession through fraud ; since this would be the averment of one material fact, and the 1 Pier V. Heinrichoffen, 52 Mo. 333, ^ Lunibert v. Talmer, 29 Iowa, 104, 335. 108. See also Hudson v. McCartney, 33 2 Woolsey v. Williams, 34 Iowa, 413, Wis. 831, 346, and cases cited. 415. * Tracy v. Ames, 4 Lans. 500, 506. 616 CIVIL REMEDIES. proof of another.^ "When the complaint set forth a contract, and on the trial the plaintiff proved without objection a materially different one, and was thereupon nonsuited, the nonsuit was sus- tained, the court adding that the admission of the evidence with- out objection made no difference with the operation of the rule.^ And if a complaint sets forth a cause of action for a nuisance of a certain specified kind, an essentially different one cannot be proved; as, for example, in an action by a lower riparian owner for increasing the flow of a natural watercourse by draining other streams into it, the plaintiff was not permitted to prove a nuisance which consisted solely in the fouling of such watercourse by the defendant.^ A written contract having been set out in the peti- tion, the plaintiff cannot in place of it prove facts going to show that the defendant is estopped from denying such contract.* When a petition stated a cause of action for work and labor done by the plaintiff for the defendant, but the proofs showed that de- fendant had only guaranteed the payment by other persons for services rendered to them, a recovery was held impossible.^ An allegation that the defendant erected a fence across a highway, and thereby obstructed it, cannot be sustained by proof that the defendant built a stone fence fifteen rods from the road, and thereby caused water to flow upon and obstruct the same, for the causes of action are different;^ and upon an allegation that the plaintiff did work and labor for defendant on his milldam, proof that the services were performed in harvesting grain is a fatal variance." § 558. By far the most important distinction directly connected with this doctrine is that which subsists between causes of action ex contractu and those ex delicto. It is settled by an almost unani- mous series of decisions in various States, that if a complaint or petition in terms alleges a cause of action ex delicto^ for fraud, conversion, or any other kind of tort, and the proof establishes a breach of contract express or implied, no recovery can be had, and the action must be dismissed, even though by disregarding ^ Goldsmith i\ Boersch, 28 Iowa, 351, tiff wishes to avail himself of an estoppel 354. it must he specially pleaded, citing Ran- 2 Johnsoni". Moss, 45 Cal. 515. som r. Stanherry, 22 Iowa, 334. 3 O'Brien v. St. Paul, 18 Minn. 17G, 5 Packard v. "Snell, 35 Iowa, 80, 82. 181. 6 Hill i: Supervisor, 10 Ohio St. 621. M'hillips V. Van Schaick, .37 Iowa, 1 Thatcher u. Ileisey, 21 Ohio St. 668. 229, 237. It was added that if the plain- ALLEGATIONS AND PROOFS MUST CORKESrOND. G17 the averments of tort, and treating them as surplusage, there might be left remaining the necessary and sufficient allegations, if they stood alone, to show a liability upon the contract.^ While this doctrine is firmly established, and while there is no difficult}' in its application, when it is once ascertained that the cause of action is for a tort, it is not so easy, in the absence of any specific tests, and in the careless mode of pleading which is too prevalent, to determine whether the cause of action stated by the plaintiff is ex delicto or ex contractu. Under the former system, the pres- ence or absence of certain technical formulas removed all doubt; but as these arbitrary means of distinction liave been abandoned, and as pleadings frequently, in violation of true principles, com- bine charges of fraud, of guilty knowledge, of taking, carrying away, and conversion, and the like, with averments of under- takings and promises, and their breach, it is sometimes impos- sible to decide which class of allegations constitute the gravamen of the action, and which is to be regarded as surplusage. The decided cases will not give us much aid, for pleadings with sub- stantially the same averments have received diametrically ojoposite constructions. There is thus a conflict among the decisions in reference to this subject irreconcilable upon principle, and only to be evaded by pronouncing one set of them to be erroneous. Although it is simply impossible to develop any general rule of interpretation from these cases, a few are selected as examples. § 559. It may be considered a settled point on principle and on authority, that the nature of the cause of action is determined by the allegations of the complaint or petition,^ so that the in- 1 From the great number of cases 501 ; Lane v. Cameron, 38 Wis. 613 ; which maintain this doctrine I have Pierce v. Caray, 37 id. 232 ; Goss v. selected those which are the most recent Board of Comra'rs, 4 Col. 468 ; Neu- and important, and which discuss it with decker v. Kohlbcrg, 81 N. Y. 29G, 299, the greatest fulness. Walter v. Bennett, 301 ; People v. Denison, 84 id. 272 ; 80 16 N. Y. 2-50 ; Boss v. Mather, 51 N. Y. id. 056 ; Neftet v. Liglitstone, 77 id. 96 ; 108 ; De Graw v. Elmore, 50 N. Y. 1 ; Lockwood v. Quackenbush, 83 id. 600 ; Sager v. Blain, 44 N. Y. 445, 448 ; Moore Lindsay v. Mulqueen, 26 Hun, 485 ; Front V. Noble, 53 Barb. 425; Rothe v. Rothe, v. Hardin, 56 Ind. 165; Hachett v. Bank 31 Wis. 570, 672; Anderson v. Case, 28 of California, 57 Cal. 335. These cases, Wis. 505, 508 ; Supervisors v. Decker, 30 as well as others, show that an action Wis. 624 ; Johannesson i\ Borschenius, cannot be changed from tort to contract 35 Wis. 131, 135 ; Dean v. Yates, 22 Ohio by amendment at the trial. St. 388, 397 ; Watts v. McAllister, 33 Ind. 2 Welsh i-. Darragh, 52 N. Y. 590. 264. See, per con^ro, Gates r. Kendall, 67 Although the immediate question was N. C. 241. See also Barnes i'. Quigley, whether tlie cause was a referable one, 69 N. Y. 265 ; Matthews v. Cady, 61 id. yet the reasoning and conclusion are gen- 618 CIVIL REMEDIES. quiry need never extend beyond this first pleading in the suit. I shall first cite illustrations of causes ex contractu. In an action by a vendee to recover damages arising on the sale of a horse to him, the complaint, after setting forth the sale, and that the horse was in fact " Avind-broken," stated that the defendant knew of this defect, and "fraudulently concealed the same with intent to de- ceive " the plaintiff, giving the circumstances in unnecessary detail ; and that, " further to mislead and deceive the plaintiff, the defendant falsely represented and tvarranted to the plaintiff that the horse was sound, &c. ; that by reason of the premises the plaintiff was deceived, and was induced to purchase and pay for the horse;" concluding with an allegation of damages and a prayer for judgment. The Superior Court of New York City held that this complaint stated a cause of action on contract for the breach of a warranty, and that all the averments of fraud must be treated as surplusage.^ A complaint contained the fol- lowing averments : that the defendants, having in their posses- sion certain securities, the property of the plaintiff, entered into an agreement wdth him, whereby they promised to deliver up said securities to him ; that he had demanded the same, but the defendants wrongfully refused to deliver them, and wrongfully disposed of and converted them to their oicn use. The New York Court of Appeals pronounced this cause of action to be on contract, and not for a tort.^ In another quite similar case the complaint stated that the plaintiffs, at, &c., consigned to the defendants, who were commission-merchants at, &c., certain spe- eral. Some of the cases lay some stress the complaint was dismissed. The Gen- upon the kind of summons used as in- eral Term held that he should have re- dicative of tlie pleader's intention. The covered, putting their decision upon the following are further examples of actions allegation of a warranty. As this aver- held to be on contract : Freer v. Denton, ment stood alone, it would seem that it 61 N. Y. 402 ; Vilmar v. Schall, Gl id. ought to have been rejected as the sur- 5G4 ; Graves v. Waite, 59 id. 156; Green- plusage. This decision, in the light of tree v. Kosenstock, 61 id. 583 ; Sheahan more recent ones, must be regarded as V. Shanalian, 5 Hun, 461 ; Harden v. erroneous : it is not, however, opposed Corbett, id. 522; Looniis v. Mowry, 8 to the leading doctrine stated in the id. 311 ; Harrington i\ Bruce, 84 N. Y. text. 103; Sparman v. Keim, S3 id. 245, 249; 2 Austin v. Rawdon, 44 N. Y. G3, 68, Harris y. Todd, 10 Hun, 248; Westcott 60. Tiie statement of a wrongful dispo- V. Ainsworth, 9 id. 53 ; Stitt v. Little, G3 sition and conversion was said to be N. Y. 427, 432; Bishop f. Davis, 9 Hun, merely the averment of a breach. There 342. can bo no doubt as to the correctness of 1 Quintard y. Newton, 5 Kobt. 72. Tlio this decision. The central fact of the plaintiff, at the trial, proved the warranty, complaint was made to be tlie promise, but gave no evidence of the icieiUer, and and the breach was inartificially charged. ALLEGxVTIONS AND PROOFS MUST CORRESPOND. 619 cified articles, to be sold by them, and the net proceeds thereof remitted ; that the defendants received the goods, and sold them for a sum named ; and after deducting all expenses, there was due to the plaintiffs the sum of, &c., which they demanded of the defendants, who omitted and refused to pay the same, and have converted the same to their own use, to the damage of the phuntiffs of, &c. This cause of action was also held by the same court to be on contract, and not for a tort.^ In a more recent action brought for the price of certain bonds that had been sold to the plaintiff, and which had turned out to be null and void, the claim to recover was put at the trial on the ground of implied contract, — a warranty of title. The defendant moved to dismiss the complaint, because it was based upon the tlieorj' of fraud, that its allegations were of deceit and false representations. The reporter does not think best to disclose the nature of the com- plaint, although the entire decision turned upon it. The court held that the cause of action was on contract.^ S 560. The folio wins are instances of actions ex delicto. In a 1 Conaughty v. Nichols, 42 N. Y. 83. The complaint was dismissed at the trial, on the ground that the cause of action proved was on contract, while the one pleaded was for tort. This ruling was reversed, the Appellate Court saying that the single concluding averment of a con- version should be treated as surplusage. The opinion contains an elaborate discus- sion of authorities. This and the preced- ing case are substantially alike. See also Byxbie v. Wood, 24 N. Y. 607, 610, 611, in which certain averments of fraudulent practices were held to be surplusage, and the cause of action to be on contract. 2 Ledwich v. McKim, 53 N. Y. 307, 816. From an e.xamination of the record, I am able to state the exact language of the complaint. The only allegation in- volving the question at issue is, that on, &c., the defendants sold to the plaintiff certain bonds " purporting to be bonds of the U. S. & T. R. R. Co., and represented by said defendants to be such bonds, and to have been issued by and binding upon said R. R. Co., and that, in consideration thereof, and relying upon the representa- tions so made," the plaintiff paid the price ; that the bonds were valueless ; a demand on the defendants for a repay- ment of the price, &c. There was no averment of knowledge on the part of the defendants, nor of an intent to deceive. This certainly falls far short of the allega- tions necessary to make out a case of fraud. Folger J. said (p. 316), after re- citing the defendants' claim, and the averments of the complaint as given above : " But the summons is not for re- lief : it is for money. The complaint avers the facts which were proven, and which make out a cause of action in con- tract. The presence of the averments as to the representations, even were they averred to have been false and fraudu- lent, do not make the action one ex de- licto." The correctness of this decision is plain ; a cause of action on contract was certainly set forth, and the statements as to representations by the defendants were not sufficient to show a liability on ac- count of fraud. As to the allegations which must be made and proved in order to establish a cause of action for deceit, see Meyer v. Amidon, 45 N. Y. 169 ; Oberlander v. Spiess, 45 N. Y. 175; Marsh v. Falker, 40 N. Y. 562 ; Marshall V. Gray, 57 Barb. 414 ; Weed v. Case, 55 Barb. 534 ; Gutchess v. "Whiting, 46 Barb. 139. 620 CIVIL REMEDIES. suit growing out of the sale of a horse bought by the vendee, the comphiint was, " That on, &c., at, &c., the phiintiff purchased a certain horse of the defendant for the agreed price of $120, and paid defendant said sum ; that the defendant, to induce the plain- tiff to buy the said horse, falsely and fraudulently represented the said horse worth and of the value of 8120, and (juaranteed the said horse to be sound in all respects, and wholly free from disease ; that said horse was not sound or free from disease, but was unsound and diseased in this (describing), which said disease was well known to defendant at the time of the sale," &c., to the plaintiff's damage, &c. This cause of action was held by the New York Supreme Court to be for deceit, and not on a war- ranty. ^ The following case is even still stronger ; for although it was conceded that a contract was fully set forth in the pleading, 3'et the averments of fraud were held to fix the true character of the action. The claim was for damages arising from the sale of a horse, and sustained by the purchaser. The complaint alleged the sale ; that at the time thereof the horse was lame in one leg ; that defendant warranted and falsely and fraudulently repre- sented that this lameness resulted from an injury to his foot, and nowhere else ; that when his foot grew out he would be well, and that he had only been lame two weeks ; that plaintiff, rely- ing upon this warranty and representation, and believing them to be true, bought the horse, and paid the price [the represen- tations were then negatived] ; that the horse was lame in his gambrel joint, and had been so for a long time, all which the defendant, at the time of the sale and the making such warranty and representations, well knew ; that by reason of the premises the defendant falsely and fraudulently deceived him, — to his 1 Moore v. Noble, 5.3 Barb. 425. No distinguisberl in its facts from Quintard scienter was proved, and tbe plaintiff' re- v. Newton, supra, and implicit}' overrules covered for a breach of warranty. The that decision. The followin. Simpson, 27 Wis. 355 ; conversion are in the form of general Samuels v. Blanchard, 25 Wis. 329. It legal inferences, without the necessary also declares that in determining upon statements of facts. "A general charge demurrer the true nature of the com- that a party acted fraudulently, falsely, plaint, its object, and what particular or wrongfully, or that he made fraudulent kind or cause of action is stated in it, the representations or statements, amounts to character of the summons may be taken notliing ; there must be a specification of into consideration in connection with the facts to justify it" (p. 634). The fore- forra of tlie allegations in tlie complaint ; going quotations form a small part of and this particular conclusion is also sus- this exceedingly instructive opinion, tained by tlie recent decision made by '■^ See supra, § 435. tlie New York Court of Appeals, before AMENDMENTS OF PLEADINGS. 627 pleadings to the facts which have been proved, or which are pro- posed to be proved, at the trial. They are all made by permis- sion of the court, frequently upon an oral application during the trial or during the argument on appeal ; often by the court itself on its own suggestion. Sometimes, however, the trial is sus- pended, and the party desiring an amendment is driven to a formal motion in order to obtain it.^ It is not within the scope of this work to describe the practice in reference to amendments ; nor to discuss the particular cases in which they have been or will be allowed. I shall simply state the general principles which have governed the courts in the exercise of the discretion conferred upon them by the statute. § 566. In giving a practical interpretation to the clauses of the codes, a conflict of decision has arisen among the tribunals of the different States, and sometimes among those of the same State, which it is utterly impossible to reconcile. The rule is established by one class of cases, and prevails in certain States, that in all the voluntary amendments which a party may make as a matter of course in his own pleadings, and in all amendments before trial for which the party applies to the court by motion, including those rendered necessary by the sustaining of a demurrer to his pleading, he cannot under the form of an amendment change the nature and scope of his action ; he can- not substitute a wholly different cause of action in place of the one which he attempted to set up in his original pleading.^ A very different rule is laid down by another class of cases. It is settled in New York by a carefully considered decision of the 1 Tills particular instance strictly be- own use," and the like, were omitted, longs to the first general class, since it is The summons for relief was unchanged, virtually an amendment before the trial. The questions arose on a motion by the 2 Supervisors v. Decker, 34 Wis. defendant to take this amended complaint .S78 ; Rutledge v. Vanmeter, 8 Bush, 354, from the files. The court held tiiat be- .356; McGrath u. Balser, 6 B. Mon. 141. fore trial the plaintiff cannot amend the In Supervisors v. Decker, a complaint complaint by changing the entire cause had been served which was in tort, and of action from onee.r dfliclo to one ex con- which attempted to state a cause of ac- tmclu. The whole subject of amendment tion for the conversion of money and was exhaustively discussed; prior deci- things in action. A demurrer had been sions of the Wisconsin court were ad- sustained on the ground that the aver- hered to, while the New York cases ments were insufiicient, but permission which sustain another doctrine were ex- to amend was given. An amended com- pressly disapproved. It sliould be noticed plaint was served which was exactly the that the actual substantial cause of action same as the original, except that thealle- was unchanged; the only variation was gallons "and converted the same to his in the manner and form of its statement. 628 CIVIL REMEDIES. Court of Appeals, which overrules a number of contrary deci- sions made by inferior tribunals of that State, that a complaint may be amended voluntarily and of course, by substituting an entirely different cause of action for the one originally alleged, provided the summons continues to be appropriate. It is not necessary that the new cause of action should be of the same general nature or class as the first one ; but the plaintiff may, by omitting a cause of action substitute another in its stead of an entirely different class and character, if the change does not require an alteration in the summons. A like rule, it was held, also applies to answers and to defences contained therein.^ In some States this liberal interpretation of the code has been expressly extended to those amendments which require the con- sent of the court granted upon a motion, and the rule is settled that even in that class the cause of action or defence may be entirely changed.^ In respect to the amendments made at the trial, or on appeal, or by the court upon its own motion, great freedom is used, provided the parties are not misled and sur- prised, and the issues to be decided are not wholly changed. When evidence has been received \vithout objection making out a cause of action, and especially after a favorable verdict upon such evidence, the utmost liberality is shown by the courts in conforming the averments of the pleading to the case as proved, if the ends of justice will be subserved thereby.^ The plaintiff 1 Brown i'. Leigh, 12 Abb. I'r. n. s. - This is particnlarl}' the casein North 193 (1872). See also, to the same effect, Carolina, where tiie greatest liberality of Mason r. Wliitel}', 1 Abb. Pr. 85; 4 Duer, anu'iuhnent prevails. Uobinson v. \Yil- 611; Trindle v. Aldrich, 13 How. Pr. lonshby, 07 N. C. 81 ; Bullard c Johnson, 466; Troy and B. R. R. t-. Tibbitts, 11 65 N. C. 436. In the first case the action How. Pr. 168; Watson r. Rushmorc, 15 was brought to recover possession of land Abb. Pr. 51. Some of these cases apply under a deed absolute on its face (eject- the same doctrine to amendments made nient). The court, on appeal, held that upon motion. By this rule, an entirely this deed was in fact a mortgage, and re- new defence may be added to an answer versed a judgment obtained by the plain- by an amendment of course. McQueen tiff, ordering a new trial. Before the r. Babcock, 13 Abb. Pr. 268; 3 Keyes, second trial, an amendment was per- 428; Wyman v. Reniond, 18 How. Pr. niitted changing the cause of action from 272; altliough the Court of Appeals, it.s original form to one for the foreclosure in Brown v. Leigh, pointed out a difference of this mortgage. between the terms of the section which •' Supervisors r. Decker, 34 Wis. 378; permits amendments of course and of Ilodge r. Sawyer, 34 Wis. 397; Bowman that wliich allows amendments upon ap- v. Van Kuren, 2!> Wis. 200, 215; Smith plication to the court before trial, yet it v. Whitney, 22 Wis. 438 ; Robinson v. did not hold that the latter were to be Willoughby, 67 N. C. 84 ; Bidlard v. any more restricted in their scope and .Tohnson, 05 N. C. 436 ; Oatca r. Kendall, e.xtcnt than the former. 07 N. C. 241. ELECTION BETWEEN ACTIONS. 629 cannot, however, have his summons and complaint amended dur- ing the trial by substituting a dilTerent defendant for the single one who was sued, and who had appeared and defended.^ § 567. Election hetiveen actions ex delicto and those ex contractu. Intimately connected with the questions last discussed, as to the proper forms of actions and the correspondence between the allegations and the proofs, is the subject indicated b}^ this head- ing : that is, the power held by the plaintiff, under certain circum- stances, of choosing whether he will treat his cause of action as arising from tort or from contract. This right of election some- times occurs when the contract is express, — but, on account of the tortious acts of the defendant, the plaintiff may disregard it, and sue directly for the wrong. In the great majority of instances, however, the contract invoked, and made the basis of the suit, is implied. The theory of the implied promise, and its invention in order that certain classes of liabilities might be enforced by means of the action of assumpsit, have been already explained. As the fictitious promise was implied or inferred by the law from acts or omissions of the defendant which created a liability ex cequo et bono, it sometimes happened that these acts or omissions were tortious in their nature. In such a case, therefore, the liability could be regarded in a double aspect ; namely, as directly springing from the tort committed by the wrong-doer, or as aris- ing from the promise to make compensation which the law im- 1 Littler. Virginia, &c. Water Co., 9 36 id. 564; Tormey v. Pierce, 49 Cal. Nev. 317. Tlie reporter's head-note is 30G; Blood y. Fairbanks, 48 id. 171 ; Lott- much broader than tiie decision actually man r. Barnett, 62 Mo. 159 ; Jeffree v. made, and is manifestly erroneous. The Walsh, 14 Nev. 148 ; Comm'rs v. Blair, following cases illustrate the general 76 N. C. 136 ; Scott v. Co. of Chickasaw, rules concerning amendments, and the 54 Iowa, 47 ; Spink r. McCall; 52 id. 432 ; extent to which amendments are per- Newell v. Mahaska Co. Sav. Bk., 51 id. mitted. It seems to be settled by a very 178 ; Peck v. Shick, 50 id. 281 ; Ilam- decided preponderance of authority that mond v. S. C. & P. R. R., 49 id. 450; amendments at the trial cannot change O'Connell v. Cotter, 44 id. 48 ; Hobson v. the nature of the cause of action or of the Ogden's Ex'rs, 16 Kans. 388; Beyer v. defence; but that the court may at its Reed, 18 id. 86; Leavenworth, &c. R. R. discretion permit amendments on motion v. Van Riper, 19 id. 317 ; Harris v. Turn- before trial which change the cause of bridge, 83 N. Y. 92, 97 ; Reeder v. Sayre, action or defence, add a new cause of 70 id. 180: Weston v. McMullin, 42 Wis. action or defence, and the like (see ad- 5G7 ; Tanguay v. Felthouser, 44 id. 30 ; ditional cases cited under § 558). John- Tewsbury r. Bronson, 48 id. 581 ; Graham son V. Filkington, 39 Wis. 62 ; Vliet v. v. Chicago, &c. R. R., 49 id. 532 ; Oro Sherwood, 38 id. 159; Spinners r. Brett, Tino Min. Co. v. CuUcn, Idaho R. 113; 38 id. 648 ; North West. Union P. Co. v. Read v. Beardsley, 6 Neb. 493; Page v. Shaw, 37 id. 655; Flanders v. Cottrell, Williams, 54 Cal. 562. 630 CIVIL REMEDIES. plied and imputed to liini. As the single liability thus resulting from the eiven acts or omissions was considered under these two different aspects, the common law provided two distinct means or instruments for enforcing it, — one by the form of action appro- priate for the recovery of damages from the tort, the other by the form of action appropriate for the recovery of damages from the breach of an implied promise. In what instances — that is, in what classes of tortious acts or omissions — the right of action existed had been determined by the courts, although there was not a complete uniformity of decision among the tribunals of the several States. § 568. The doctrine of electing between an action ex delicto and one ex contractu, or, to speak more accuratel}-, between treat- ing the cause of action as arising from tort or from contract, has been retained under the new procedure ; and it is applied in the same classes of cases, and is governed by the same general rules, as in the former system. The courts, without, perhaps, appre- ciating the full extent of the changes, and the effect of abolishing all distinctions between forms of actions, decided that the power of choice between the two modes of enforcing demands, of waiv- ing the tort and suing upon an implied promise, still exists ; and these early decisions have been followed by so many others without an expression of dissent, that the rule is as firmly estab- lished in the reformed as it was in the common-law pleading. The single principle upon which the entire doctrine rests is very simple, and should — and would, if the courts were always con- sistent in acting upon it — afford a ready and plain solution of every question, new or old, which can be suggested. This single principle may be thus formulated : Froiti certain acts or omis- sions of a party creating a liability to make compensation in damages, the law implies a promise to pay such compensation. Whenever this is so, and the acts or omissions are at the same time tortious, the twofold aspect of the single liability at once follows, and the injured party may treat it as arising from the tort, and enforce it by an action setting forth the tortious acts or defaults ; or may treat it as arising from an implied contract, and enforce it by an action setting forth the facts from which the promise is inferred by the law. It should be remembered that different promises may be inferred from different acts or omis- sions : thus, in one case, the promise might be to pay over money ELECTION BETWEEN ACTIONS. 631 had and received to the use of the injured party ; and in another, wliere no money had been actually received, the implied under- taking might be that the wrong-doer would pay the value or price of goods taken by him. This distinction, so palpable and commonplace, seems to have been overlooked in some classes of decisions. § 569. Having thus formulated the general principle which prevailed in the former procedure, and which has been adopted to its fuir extent in the present, I shall, in its further illustration, state the various classes of cases to which it has been applied by the courts, and shall thus ascertain the particular instances — the kinds of wrongful acts and omissions — in which the right of election exists. To this will be added a few observations upon the mode of indicating the fact that an election has been made by the pleader, that a tort has been waived, and a cause of action upon contract has been chosen. The most common classes of tortious acts, in respect of which the right of election has been invoked, are the wrongful taking or conversion of chattels, or things in action, or money ; the wrongful use of lands, and ap- propriation of its rents and profits ; sales of goods on a credit procured by the fraud of the purchaser ; frauds and deceits generally by which money or things in action, or chattels, are obtained ; and certain cases of express contract, in which, from the policy of the law, the liability is regarded as resulting from a violation of general duty as well as from a breach of the stipu- lations of the agreement. These classes will be considered sepa- rately. It is a firmly established rule, from which no dissent has been suggested, that when goods or things in action have under any circumstances be^n wrongfully taken or detained or con- verted, and have been sold or disposed of by the wrong-doer, the owner may sue in tort to recover damages for the taking and carr3dng away or the conversion, or he may waive the tort and sue on the implied promise to refund the price or value as money had and received to the plaintiff's use.^ When, however, tlie chattels or things in action have been simply taken or converted, 1 McKnight v. Dimlop, 4 Barb. 36, 42 ; Evans, 43 Cal. 380 ; Gordon v. Bruner, Hinds 0. Tweddle, 7 How. Pr. 278, 281 ; 49 Mo. 570, 571 ; Putnam v. Wise, 1 Hill, Harpending v. Shoemaker, 37 Barb. 270, 234, 240, and the reporter's note ; Berly 291 ; Cliambers ;;. Lewis, 2 Hilt. 591 ; v. Taylor, 6 Hill, 577, 584, and the re- Leach V. Leach, 2 N. Y. S. C. 657 ; Tryon porter's note. V. Baker, 7 Lans. 511, 514; Roberts v. 632 CIVIL REMEDIES. but not sold or disposed of by the wrong-doer, a conflict of opinion exists in respect to the power of the phiintiff to elect between the two forms of action. Certain cases deny this power. This ruling is rested upon the ground that the goods remaining in the hands of the wrong-doer, and no money having in fact been received by him, an implied promise to pay over money had and received by the defendant to the plaintiff's use does not and cannot arise.^ In this country, however, the weight of authority is strongly the other way. The cases generally admit' an elec- tion, under the circumstances described, between an action based upon the tort, and an action based upon the implied promise to pa}^ the price or value of the goods. The tort is waived, and the transaction is treated as a sale, and not as an instance of money had and received. This distinction is certainly supported by the plainest principles, if the doctrine of implied promises and elec- tion is to be admitted at all.^ If money has been converted, the 1 McKnight v. Dunlop, 4 Barb. 36, 42 ; Henry v. Marvin, 3 E. D. Smith, 71 ; Tryon v. Baker, 7 Lans. 511, 514. 2 Hinds V. Tweddle, 7 How. Pr. 278, 281 ; Chambers v. Lewis, 2 Hilt. 501 ; Putnam v. Wise, 1 Hill, 234, 240 (and see note of the reporter) ; Berly v. Taylor, 5 Hill, 577, 584 (and note of the reporter) ; Roberts v. Evans, 43 Cal. 380 ; Gordon V. Bruner, 49 Mo. 570, 571. In the last case, goods had been carried away and converted by tlie defendant. The court, by Bliss J., said : " It is not disputed, that when there is a conversion of per- sonal property, and that property has been sold and converted into money, the owner may ratify the sale by suing the wrong-doer as for money had and re- ceived to Ills use ; but when the property has not been sold, but still remains in the hands of the wrong-doer, there is a differ- ence of opinion ; and there have been conflicting decisions whether the owner may waive the tort, and sue for goods sold and delivered. In Massachusetts, in Jones i: Hoar, 5 Pick. 285, to which there is a note to a former opinion re- viewing the English cases, it was held that no contract could be implied unless the goods were sold and converted into money, and tiie same doctrine was held in Pennsylvania, in Willett v. Willett, 3 Watts, '277, and in Morrison v. Rogers, 2 111. 317. But such has not been the uni- form ruling. In Putnam v. Wise, 1 Hill, 240, the court holds that, " according to the well-known right of election in such cases, the plaintiff might have brought * assumpsit ' as for goods sold and delivered against those who had tor- tiously taken their property." To this the reporter, Mr. Hill, adds a note, re- viewing the cases, and disapproving the doctrine of Jones v. Hoar. (See Hill v. Davis, 3 N. H. 384 ; Stockett v. Watkins's Administrator, 2 Gill & J. 326, and cases cited.) Quoting early Missouri decisions to the same effect, — Floyd v. Wiley, J Mo. 430, 643 ; Johnson v. Strader, 3 Mo. 3-59, — the learned judge adds: "It may be treated, then, as the doctrine in this State, that cflie who has converted to his own use the personal j)roperty of another, when sued for the value of that property as sold to him, will not be permitted to say in defence that he obtained it wrong- fully." See also. Small v. Robinson, 9 Hun 418 ; Cushman v. Jewell, 7 id. 525, 530 (an unsupported dictum) ; Loomis i'. Mowry, 8 id. 311; Freer v. Denton, 61 N. Y. 492; Fields v. Bland, 81 id. 230; Comstock V. Hier, 73 id. 269 ; KalckhofE I'. Zoehrlaut, 40 Wis. 427 ; Chamballe r. McKenzie, 31 Ark. 155; Huston v. Plato. 3 Col. 402 ; Brady v. Brennan, 25 Minn. 210; Logan v. Wallis, 76 N. C. 416; and see ante, § 493 and cases cited. ELECTION BETWEEN ACTIONS. G33 right of election exists under the operation of either rule, since the actual receipt of money by the defendant brings the case exactly within the reason and operation of the doctrine as first stated. 1 The same choice between the actions may sometimes be possible when the liability is connected with a claim to land or grows out of its use, although the instances are much fewer than those of the preceding class. Thus, when the owner agreed to lease certain premises to the plaintiff for a term of years com- mencing at a future day named, but before that day actually leased them to another person who took possession, and when the time arrived the plaintiff demanded possession, tendered the rent, and on refusal brought an action for damages, it was objected on the trial that his only remedy was ejectment against the tenant in possession. The court held, that, while the plain- tiff might have maintained ejectment, he could also bring an action against the lessor, which could be either upon the agree- ment express or implied, or in tort for the violation of the duty arising from the relation of lessor and lessee between the par- ties.^ It is settled in Wisconsin, after a careful consideration and an exhaustive analysis and comparison of the conflicting deci- sions, that when the defendant had committed a wilful trespass upon the plaintiff's land by deliberately turning his cattle thereon, in order that they might feed upon the grass, the plaintiff might waive the tort, and sue upon an implied contract for the price and value of the pasturage.^ § 570. It is a familiar rule, that the action against a common carrier for a loss or injury of goods may either be in tort for the violation of his general duty, or on the contract which he ex- 1 Try on v. Baker, 7 Lans. 511, 514. right or claim to real estate, or to its pos- 2 Trull V. Granger, 8 N. Y. 115. On session, or to its rents and profits. Car- the other hand, when a complaint alleged penter v. Stilwell, 3 Abb. Pr. 459. This that the plaintiff was the owner and en- was a Special Term decision, and does titled to the possession of certain premises, not, therefore, have much authority as that the defendant took possessiof^ .hereof a precedent. under a void deed, and leased them, and ^ Norden v. Jones, 33 Wis. 600, 604, has received the rent arising from such 605. The opinion of Dixon C. J. is a full letting, and demanded judgment for the and most instructive examination of tlie amount so received, the court held that doctrine. It rejects the narrow rule which there was no power to waive the tort, confines an election to the single case and sue on contract for money had and where the wrong-doer has actually re- received ; that the doctrine of election ceived money, and accepts the broad did not extend so far as to allow the principle that the election may be had plaintiff to try, under the form of an whenever a promise is implied, action for money had and received, a 634 CIVIL REMEDIES. pressly or impliedly enters into. The OAvner Las his election which of these remedies he will pursue ; but his choice cannot alter the extent of the carrier's liability .^ Fraud in its various phases also furnishes many occasions and opportunities for the exercise of an election between actions. One of the most com- mon is the case of a sale upon a credit procured by the false and fraudulent representations of the vendee as to his pecuniary responsibility. Upon discovering the fraud, even before the expiration of the credit, the vendor may rescind the sale, and immediately bring an action in form of tort either to recover the goods themselves, or damages for their taking and conversion ; or he may waive the tort, and sue at once on contract for the price.^ And when money has been obtained by false and fraudulent representations, or by fraudulent practices of any kind, the plaintiff has the option to sue either in tort for the deceit, or in contract for money had and received by the defendant to his use.^ 1 Campbell v. Perkins, 8 N. Y. 430. 438 ; Brown i-. Treat, 1 Hill, 225 ; People V. Kendall, 25 Wend. 3U9 ; Wallace v. Morss, 5 Hill, 391 ; Campbell v. Stakes, 2 Wend. 137. 2 Roth V. Palmer, 27 Barb. 652, and cases cited ; Kayser v. Sichel, 34 Barb. 84 ; 8. c. on app. snb nom. Wigand v. Sickel, 3 Keyes, 120, approving Roth v. Palmer. See Claflin v. Taussig, 7 Hun, 223 ; National Trust Co. v. Gleason, 77 N. Y. 400. 3 Byxbie ;;. Wood, 24 N. Y. 607, 610, Union 'Bank v. Mott, 27 N. Y. 633, 636. In tlie first of these cases, objection was taken that the cause of action was for a tort, — deceit. The court, after stating the facts as found on the trial, which placed the recovery upon the defendant's implied contract to refund money which he had obtained by fraudulent practices, proceed as follows : " This state of facts does not necessarily require an action to be brought for the tort. Such facts al- ways raise in law the implied 'promise which was the contract-cause of action in indebitatus assumpsit for money had and received. Having money that righfully belongs to another creates a debt; and wherever a debt e.xists without an ex- press promise to pay, the law implies a promise, and the action always sounds in contract." On the other hand, in Union Bank v. Mott, where two defendants had, through fraudulent collusion with its offi- cers, overdrawn a large sum of money from the bank, and insisted that the ac- tion brought against them was necessarily on contract, and was therefore joint, and could not be revived against the executors of one of them who had died, the court said, per S. L. Selden J. : " The plaintiff 's counsel, however, insists — and, I think, correctly — that the basis of the action is tort, and not contract express or implied ; tliat its object is not to recover for money had and received by the defendants to plaintiff's use, thus waiving the tort, but to obtain a judgment for the damages which the plaintiff has sustained through the fraudulent conduct of the defendants." The liability was therefore declared to be several. It will be noticed that these two cases were alike in all their essential facts, and that, in one of them, the tort, was held to liave been waived, and in the other not to liave been waived ; and this distinction was, in fact, made, not upon any difftTence in tlie allegations, )>ut be- cause it subserved the ends of justice, and defeated an objection of mere form. A peculiar instance of fraud was presented ELECTION BETWEEN ACTIONS. 635 § 571. The conflict which has existed to a certain extent among the decisions in reference to the right of election, and the classes of tortious acts and omissions embraced within it, can only be put to rest by determining with certainty the occasions and cir- cumstances in which a promise will be implied by the law. It is very clear that whenever the promise will be implied, if the acts or omissions from which it is inferred are at the same time tortious, the election to sue for the tort or for a breach of the contract must necessarily exist, or else it must be denied on some mere arbitrary and insufficient ground. The whole discussion is thus reduced to the single question. When is a promise implied by the law ? The comprehensive principle which furnishes a definite answer to this inquiry, applicable to all circumstances and relations, has been well stated by the courts in the following terms : " When a promise is implied, it is because the party intended it should be, or because natural justice plainly requires it in consideration of some benefit received''' ^ It was also said by a very able English judge, that " no part}^ is bound to sue in tort, when by converting the action into an action on contract he does not prejudice the defendant ; and, generally speaking, it is more favorable to the defendant that he should be sued in con- tract." 2 If these quotations are correct statements of the general principle it is plain that the rule maintained by some decisions, which would restrict the right of election to those cases in which in the recent case of Booth v. Farmers' ment, which otherwise might and would and Mech. Bank, 1 N. Y. S. C. 45, 49. have been collected, and has sustained The complaint contained two distinct damage to the amount of $3,500. The causes of action. The first alleged that, second cause of action was for money had in I860, the defendant recovered a judg- and received. In answer to a demurrer ment for $3,500 against a certain person on the ground that causes of action had named, which was properly docketed; been improperly united, the plaintiff that, in 1861, tlie defendant, for a valua- claimed that he had waived the tort in ble consideration, assigned said judgment the first count, and had sued on an im- to the plaintiff; that, after the docketing plied contract. The court, while conced- of said judgment, the debtor owned land ing that the tort might be waived, and in the county where it was docketed the right of action be placed upon the im- more than sufficient in value to have sat- plied promise, held that there had, in fact, isfied it, and upon which it was a lien ; been no such waiver, but that the first that, in 1864, the defendant, without au- count was in tort. See the opinion of thority, discliarged said judgment, where- Mullin J., given in full, supra, § 539. by the lien of the judgment was lost, and i Webster v. Drinkwater, 5 Greenl. the debtor was able and did convey the 322 ; also per Beardsley J. in Osborn v. said land to bona fide purchasers ; that Bell, 5 Denio, 370. the judgment debtor is now insolvent ; 2 Young v. Marshall, 8 Bing. 43, per wherefore the plaintiff has lost said judg- Tindal C. J. 636 CIVIL REMEDIES. the wrong-doer has actually received money equitably belonging to the plaintiff, is erroneous.^ § 572. The foregoing examples sufficiently illustrate the scope and extent of the doctrine under consideration, and the class of liabilities to which it is applied. It remains to inquire how, under the new procedure, the plaintiff shall indicate in his plead- ing the fact that he has actually made his election, and has brought his action in tort or on contract, as the case may be. Under the old system no such question could arise. The elec- tion was disclosed by the form of the action itself. If the liability was to be treated as arising from contract, assumpsit was of course the action selected ; if from tort, trover or case or re- plevin, or sometimes trespass, were the proper instruments. Since these forms have been abolished, and all the technical phrases which distinguished one proceeding from another are abandoned, it is only by the substantial nature and contents of the allegations themselves — the facts Avhich they aver — that the election can, if at all, be now indicated. In other words, as the pleader can express his design by means of no arbitrary sym- bols in the complaint or petition, he must show that he has chosen to sue either in tort or on contract by the very substance of the averments which constitute the cause of action. In a recent case the New York Supreme Court proposed a certain test, and declared that when the plaintiff claims to have waived the tort, and to have sued upon an implied contract, the only possible mode of showing this election is by expressly alleging a promise to have been made by the defendant ; that in no other manner can the design of making the action one ex contractu^ a,nd of distinguishing it from one ex delicto^ be disclosed on the face of the pleading.2 It has already been shown that this conclusion is directly opposed to the fundamental principles of the reformed pleading, and that it is a return to the most technical and purely ' It was said by Hogeboom J., while Deriio, 370; Camp v. Pulver, 5 Barb. 91 ; commenting upon this narrow rule in Butts v. Collins, 13 Wend. 139, 154; Kotli i;. Palmer, 27 Barb. 052: "Our Lightly v. Clouston, 1 Taunt. 113; Hill courts recognize no such distinction, v. Pcrrott, 3 Taunt. 274 ; Young v. Mar- Thcy allow the election in all cases shall, 8 Bing 43. where the plaintiff would liave been al- ^ Booth v. Farmers' and Mcch. Bank, lowed to pursue his remedy in tort." See 1 N. Y. S. C. 45, 49. See the complaint also the following cases: Centre Turn- given .s»;»ra in note to § 570, and the pike Co. V. Smith, 12 Vt. 217 ; Cummings opinion of MuUin J., supra, § 639. V. Vorce, 3 Hill, 282; Osborn v. Bell, 5 ELECTION BETWEEN ACTIONS. G37 fictitious dogmas and distinctions of the common-law system. It is also opposed to decisions and judicial dicta in relatioii to this very question which declare that such a mode of stating the cause of action is inadmissible, and that the facts alone which constitute it must be averred as they actually took place. ^ § 573. Whenever the contract relied upon is express, there can be no difficulty in showing the election upon the face of the pleading. If the plaintiff chooses to bring an action ex contractu^ his complaint or petition will simply state the terms of the agree- ment, and the facts which constitute the breach thereof. If he chooses to bring an action ex delicto for a violation by the defend- ant of his general duty, his complaint or petition will set out the facts showing his own primary right and the defendant's duty, disregarding the contract, and will then allege the tortious acts or omissions by which that right and duty were violated. Although the same actual transaction between the parties would be stated in either case, the form and manner of the statement would be entirely and plainly different. An ordinary claim against a com- mon carrier for the loss of goods furnishes a familiar example of these two modes. But when the contract relied upon is implied, and is simply the fictitious promise which the law infers from the tortious acts themselves, it may be doubted whether it is pos- sible, in accordance with the true principles of the reformed pleading, to frame a complaint or petition in all cases which shall show on its face that the plaintiff has elected to bring his action either in tort or on contract. In one class of liabilities it is cer- tainly possible to do so ; namely, in those which result from the defendant's fraudulent representations and deceits. The allega- 1 Byxbie v. Wood, 24 N. Y. G07, 610 ; out from the remedy which his facts Chambers v. Lewis, 2 Hilt. 591. The would give him." As tlie court were facts of Byxbie v. Wood were stated, and here discussing the doctrine of election, an extract from the opinion was given in and as tliey held that tlie complaint the note to § 270. Immediately following stated a cause of action on contract, and the language there quoted, the learned not one in tort, although no promise was al- judge proceeds as follows : " Under the ler/ed, this language, and the decision upon code, tliis implied promise is treated as a it, are entirely inconsistent with the posi- fiction, and the facts out of which the prior tion taken, and the test suggested by the law raised the promise are to be stated with- Supreme Court in Booth r. Farmers' and o'tt any designation of a form of action; and Mech. Bank. In Chambers v. Lewis, the the law gives such judgment as, being court simply said that whether a waiver asked for, is appropriate to the facts. Of has been made must now be shown by course we cannot now say that a particular the facts averred in the complaint and by phrase males a particular form of action, so the prayer, that a party, by its use, may shut himself 638 CIVIL REMEDIES. tion of a scienter is indispensable in the action ex delicto based upon such a liability, and distinguishes it in a marked manner from the correlative action based upon the implied promise. But when the liability results from the wrongful taking or conver- sion of chattels, from trespasses, negligences, or other similar kinds of wrongs, the very facts which are alleged in the action of tort are the facts from which the promise is inferred ; and, according to the true theory of pleading, these facts must also be stated in the action ex contractu, without any legal inferences or conclusions. It conclusively follows, that, in this general class of lialjilities, as the facts which constitute the cause of action are the same in each, the averments of the complaint or petition must be the same in each kind of action, if the essential principles of the reformed system are complied with, so that it is impossible to indicate upon the face of the pleading alone the election which the plaintiff has made. The form of summons adopted would therefore seem to be the only certain test, in this class of cases, by which the nature of the action can be deter- mined, and the fact of an election can be made known to the adverse party. The only other alternative is, to insert in the complaint certain legal conclusions or descriptive phrases which, in reference to the statement of the cause of action, are purely immaterial and redundant. SECTION FOURTH. THE FORM OF THE COMPLAINT OR PETITION. § 574. Having thus discussed and determined the fundamental principles and general doctrines of the reformed pleading, which apply to all causes of action, and to all defences by way of con- fession and avoidance or of affirmative relief, I shall now briefi}'' consider the rules which pertain to the form of the complaint or petition, and which regulate the manner of stating and arranging its allegations. These rules are few and simple ; and their object is to render the issues single and certain, and to present the cause of action for a decision upon its merits, and not upon any technical, incidental, or collateral questions. In one impor- tant feature the new system stands in marked contrast with the FORM OF THE COMPLAINT OR PETITION. 639 old, — the entire absence of all special phrases or formulas by which the kinds of actions are distinguished, or by which the pleadings or any parts of them are characterized. § 575. When a complaint or petition contains two or more causes of action, all the codes require that they shall be dis- tinctly and separately stated and numbered ; and the method by which a violation of this requirement is to be corrected has already been explained.^ It is a settled rule, that if the pleading is of this kind, each separate division or count must be complete by itself, and must contain all the averments necessary to a perfect cause of action. Defects and omissions in one cannot be supplied by the allegations found in another ; nor can the pleader, by merely referring to material facts properly set forth in a former count, incorporate them into and make them part of a subsequent one. In other words, all the issuable or material facts constituting the ground for a recovery must be stated in each cause of action, even though some repetition might thereby become necessary. This requirement, however, applies only to the material and issuable facts which constitute the cause of action. Matter which is simply introductory or by way of in- ducement, and not part of the gravamen^ after having been once set out at the commencement of the pleading, need not be repeated in each paragraph, but should be referred to merel3^ And this introductory matter includes all descriptions of the character, capacity, or particular right in respect of which the plaintiffs and defendants are made parties to the action, as executors, trustees, public officers, and the like. These and similar statements prop- erly form the commencement or introduction of the complaint, distinct from the several causes of action, and equally applicable to all of them. Whenever, therefore, a cause of action is at- tacked by a demurrer directed either against it alone or against the entire pleading, it must stand or fall by its own averments, and cannot be helped out by any facts, however sufficient in themselves, alleged in another paragraph or count.^ But the par- 1 See supra, §§ 447, 450. Ind. 416 ; Mason v. Weston, 29 Ind. 561 ; 2 Abendroth v. Boardley, 27 Wis. Day v. Vallette, 25 Ind. 42 ; Leabo i;. 555; Durkee J). City Bank, 13 Wis. 216, Detrick, 18 Ind. 414; National Bank u. 222 ; Curtis v. Moore, 15 Wis. 134 ; Sabin Green, S3 Iowa, 140 (answer) ; Silvers V. Austin, 19 Wis. 421, 423; Catlin v. u. Junction R. R., 43 Ind. 435, 446 (reply). Pedrifk, 17 Wis. 88, 91 ; Barlow v. Burns, See also Scott v. Robards 67 Mo. 289; 40 Cal. 351, 353 ; Potter v. Earnest, 45 State v. Y.J. S. M. Co., 14Nev.220; Bird- 640 CIVIL EEMEDIES. ticular sum of damages claimed in each cause of action need not necessarily be given at its close ; it is sufficient if the aggregate amount is alleged and demanded at the end of the complaint.^ § 576. Since the reformed pleading requires the facts to Ije averred as they actually took place, it does not in general permit a single cause of action to be set forth in two or more different forms or counts, as was the familiar practice at the common law. The rule is undoubtedly settled, that, under all ordinary circum- stances, the plaintiff who has but one cause of action will not be suffered to spread it upon the record in differing shapes and modes, as though he possessed two or more distinct demands ; and when he does so without special and sufficient reason, he will be com- pelled, either by a motion before the trial or by an application and direction at the trial, to select one of these counts, and to abandon the others. It is certain that different causes of action in the complaint or petition must, as a general rule, imply as mau}^ distinct causes of action actually held or claimed to be held by the plaintiff.^ It cannot be said, however, that this rule is absolutely inflexible. As it is one of convenience simply, it must sometimes yield to the demands of justice and equity. Un- der peculiar circumstances, when the exact legal nature of the plaintiff's right and of the defendant's liability depends upon facts in the sole possession of the defendant, and which will not be develojDed until the trial, the plaintiff may set forth the same single cause of action in varied counts and with differing aver- ments, so as to meet the possible proofs Avhich will for the first time fully appear on the trial. This proposition is plainly just and right, and is sustained by the authority of able courts.^ sail t'. Birdsall, 52 Wis. 208 ; McCarnan McCauley, 9 Abb. Pr. 159: Sipperly v. V. Cocliran, 57 Ind. 106 ; Killian v. Eigen- Troy and B. R. R., 9 How. Pr. 83 ; Hill- man, 57 id. 480 ; Barnes v. Stepliens, 62 man v. Hillman, 14 How. Pr. 456 ; id. 226; Pennsylvania Co. v. Holdprman, Churchill v. Churchill, 9 How. Pr. 552; 69 id. 18 ; Haskell v. Haskell, 54 Cal. Ford v. Mattice, 14 How. Pr. 91 ; Dun- 262; Sharp v. Miller, 54 id. .329; as to ning t'. Thomas, 11 How. Pr. 281. what are not separate causes of action, so ^ Whitney v. Ciiicago, &c., N. W. R. R., that they mm/ be stated in one count, see 27 Wis. 327, 340-342. The plaintiff had Ray an I'. Day, 46 Iowa, 239 (two promis- shipped wool on defendant's road for sory notes, serl qu.) ; State v. Milwaukee, Chicago, and it was never delivered. He &c. R. R., 44 Wis. 679 (distinct grounds did not know whether it had been lost in of forfeiture). the transit, or had been burned at a fire ^ Spears v. Ward, 48 Ind. 541. which had consumed defendant's ware- 2 Sturges I'. Burton, 8 Ohio St. 215; house in Chicago. He therefore set forth Muzzy V. Ledlie, 23 Wis. 445; Lackey in his complaint two distinct causes of V. Vanderbilt, 10 How. Pr. 155; Nash v. action— (1) against tlie defendant as a rOIlM OF THE COMPLAINT Oil PETITION. 641 § 577. When a coinj)laint or petition contains two or more dis- tinct causes of action, a demurrer to it as a whole, or to all or some of the causes of action jointly, must fail and be overruled if any one of the separate causes of action included in the demurrer is good ; and the same rule applies to separate defences in an an- swer.^ The defendant should never demur to an entire complaint or petition consisting of several distinct causes of action, nor to two or more causes of action jointl}^ unless he is certain that they are all insufficient ; and, under all circumstances, it is the better and safer practice to demur in express terms to each separately, for each will then stand or fall upon its own merits.^ The same rule also applies to a demurrer for want of sufficient facts by two or more defendants jointly ; it will be overruled as to all who unite in it if the complaint or petition states a good cause of ac- tion against even one of them.^ A different rule, however, pre- vails in some States.* common carrier, and (2) against defend- ant as a wareiiouse-man — for the negli- gent loss of the goods. This manner of pleading was held proper under the cir- cumstances, and the plaintiff could not be compelled to elect on the trial. Tlie sub- ject is exhaustively discussed by Dixon C. J., pp. 340-842. See also Smith v. Douglass, 15 Abb. Pr. 266 ; Jones v. Palmer 1 Abb. Pr. 442. And as further examples. Van Brunt v. Mather, 48 Iowa, 503; Pierson v. Milwaukee, &c. R. R., 45 id. 239 ; Supervisors v. O'Mally, 46 Wis. 35. 1 Curtis V. Moore, 15 Wis. 134; Jef- fersonville, &c. R. R. v- Vancant, 40 Ind. 233 ; Heavenridge v. Mondy, 34 Ind. 28 ; Hale V. Omaha Nat. Bank, 49 N. Y. 626, 630 ; Ward v. Guyer, 3 N. Y. S. C. 58 ; Silvers v. Junction R. R., 43 Ind. 435, 442- 445. In the last case the question arose on a reply which contained several para- graplis or defences. The defendant de- murred as follows : " Now comes the de- fendant, and demurs to the second, third, and fourth paragraphs of the plaintiff's reply, upon the following grounds : First, said second paragraph does not state facts sufficient, &c. ; second, said third para- graph does not state facts, &c. ; third, said fourth paragraph does not," &c. This demurrer was held to be joint, and not several ; and the rule of the text was en- forced. The opinion carefully discusses the question, what language makes a de- murrer or an answer joint, and what sev- eral, citing on this topic Lane v. State, 7 Ind. 426 ; Earner v. Morehead, 22 Ind. 354 ; Jewett v. Honey Creek Draining Co., 39 Ind. 245 ; Parker v. Thomas, 19 Ind. 213 ; Fankboner v. Fankboner, 20 Ind. 62; Aiken v. Bruen, 21 Ind. 137; Hume V. Dessar, 29 Ind. 112. The follow- ing cases are further illustrations of both branches of the rule, — a demurrer to all tlie causes of action or defences, and a de- murrer by the defendants jointly. Collier V. Erwin, 2 Mont. 335 ; Dann v. Gibson, 9 Neb. 513 ; Hyde v. Supervisors, 43 Wis. 129; American, &c. Co. v. Gurnee, 45 id. 49 ; Lamon v. Hackett, 49 id. 261 ; Schif- fer V. Eau Claire, 51 id. 385 ; Stanford t". Davis, 54 Ind. 45; Wilkerson ?•. Rust, 57 id. 172; Romine v. Romine, 59 id. 346; Price V. Sanders, 60 id. 3l0; Carter v. Zeublin, 68 id. 436 ; Farman v. Chamber- lain, 74 id. 82 ; Shafer v. State, 49 id. 460, and cases cited ; Kelsey v. Henry, 48 id. 37. 2 Durkee v. City Bank, 13 Wis. 216, 222. 3 McGonigal v. Colter, 32 Wis. 614; Webster v. Tibbits, 19 Wis. 438 ; Shore V. Taylor, 46 Ind. 345; Owen v. Cooper, 46 Ind. 524. * Wood V. Olney, 7 Nev. 109. The de- 41 642 CIVIL REMEDIES. § 578. It is expressly provided in all the codes, that material allegations of the complaint or petition not controverted by the answer are admitted, and they need not be proved ; the same is of course true of averments expressly admitted. A denial of the legal conclusion, such as the indebtedness, while the answer is silent with respect to the issuable facts from which the conclusion follows, is a mere nullity, and raises no issue. ^ What averments are material, and are thus admitted unless controverted, is a ques- tion of law to be decided by the court, and not by the jury.^ The result just mentioned does not arise from a failure to deny im- material allegations ; such statements are not issuable, and their truth is not conceded for the purposes of the trial by the defend- ant's neglect to controvert them. In this class are included all species of immaterial and non-issuable matter, such as details of evidence, conclusions of law, and averments of time, place, value, amount, and the like, in all ordinary circumstances.^ An im- portant question presents itself in this connection as to the effect of a qualified admission contained in the defendant's answer, and the decisions in respect to it are somewhat conflicting. The rule is settled by one group of cases, that when the answer expressly admits certain material averments of the complaint or petition, but at the same time accompanies this concession with the statement of affirmative matter in explanation and qualification by the way of defence, the plaintiff may avail himself of the admissions with- out the qualifications ; he is not bound to take the defendant's entire statement ; he is freed from the necessity of proving his own averments that are admitted, while the defendant must prove those which he sets up.* Other cases seem to lay down murrer was sustained as to some, and - Becker t: Crow, 7 Bush, 198. overruled as to the others. ^ Doyle v. Franklin, 48 Cal. 5o7, 539 ; 1 Skinner v. Clute, 9 Nev. 342; Jen- Gates v. Salmon, 46 Cal. 361, 379 (evi- kins V. N. C. Ore Dressing Co., 65 N. C. dence) ; Chicago, &c. II. II. v. North 663. See also Trapnall v. Hill, 31 Ark. West. U. P. Co., 38 Iowa, 377, 382 315; Mohr c. Barnes, 4 Col. 350; Dole r. (value of goods) ; People f. Commission- Burceigh, 1 Dakota, 227; Kansas City ers, -54 N. Y. 276, 279 (conclusion of law). Hotel Co. V. Sauer, 65 Mo. 279 ; Bonliam See also Sands v. St. John, 30 Barb. G28 ; V. Craig, 84 N. C. 224 ; Bensley v. Mc- 23 How. Pr. 140 ; Fry v. Bennett, 5 Millfin, 49 Iowa, 517 ; Alston r. Wilson, Sandf. 54 ; Newman v. Otto, 4 Sandf. 44 id. 130; Fellows v. Webb, 43 id. 133; 668; Oechs v. Cook, 3 Duer, 161 ; Har- Blake v. Comm'rs, &c., 18 Kans. 266 ; low v. Hamilton, 6 How. Pr. 475 ; Con- Wands V. School Dist., 19 id. 204 ; Murray noss v. Meir, 2 E. D. Smith, 314 ; Mayor, V. N. Y. Life Ins. Co., 85 N. Y. 236, 239 ; &c. v. Cunliff, 2 N. Y. 165, 171. Lange v. Benedict, 73 id. 12; Marsh v. * Dickson i-. Cole, 34 Wis. 621, 626, Pugh, 43 Wis. 597; Tracy v. Craig, 55 627. The answer admitted the agreement Cal. 91. Bet forth in the complaint, but set up in FORM OF THE COMPLAINT OR TETITION. 643 a different rule, denying to the plaintiff the full benefit of the admission, and requiring him to accept it, if at all, with the de- fendant's qualifying matter.^ When different defendants have put in separate answers, an admission by one cannot be used against the others : ^ and the same doctrine extends to separate defences of one party in a single answer; the admissions in a de- fence of confession and avoidance do not overcome the effect of a denial contained in another.^ § 579. A defective complaint or petition may be supplemented, and substantial issues may thus be presented by the answer itself. When the plaintiff has failed to state material facts, so that no cause of action is set forth, but these very facts are supplied by the averments of the answer, the omission is immaterial, and the defect is cured. This rule should properly be confined to the case where the answer affirmatively alleges the very fact that is missing from the complaint ; but it has in some instances been enforced, although the answer simply contained a denial of the necessary fact which should have been averred by the plaintiff.* connection therewith a further agreement by way of avoidance. On the trial, the court held the cause of action to be ad- mitted, and the plaintiff was not called upon for any proofs. The defendant urged, that, if the answer was taken as an admission at all in the plaintiff 's favor, the whole of it should be taken. The court, by Lyon J., said : " In several cases this court has taken a different view of the law, and has held that, if a fact be expressly admitted in any part of the answer, such fact is to be taken as true against the defendant, and the plain- tiff is relieved from the necessity of proving it, and this though it may be controverted in some other part of the answer. The principle must necessarily be the same when the fact is stated by way of confession and avoidance, as in this case." The following cases were cited as sustaining this view : Sexton v. Rhames, 13 Wis. 99; Hartwell v. Page, 14 Wis. 49 ; Orton v. Noonan, 19 Wis. 350; Farrell v. Hennesy, 21 Wis. 632. 1 Troy and Rut. R. R. v. Kerr, 17 Barb. 581. As to the effect of admis- sions, see also Simmons v. Law, 8 Rosw. 213; 3 Keyes, 217; Paige v. Willett, 38 N. Y. 31 ; Tell v. Beyer, 38 N. Y. 161 ; Robbins v. Codman, 4 E. D. Smith, 325. 2 Swift V. Kingsley, 24 Barb. 541; Troy and Rut. R. R. v. Kerr, 17 Barb. 681, 599. ■■' Vassear v. Livingston, 13 N. Y. 256 ; 4 Duer, 285; Ayres v. Covill, 18 Barb. 264; 9 How. Pr. 573. See this topic treated at large infra in ch. 4, sect. 4. * Dayton Ins. Co. v. Kelly, 24 Ohio St. 345, 357 ; Miller v. White, 6 N. Y. S. C. 255; Garrett v. > Trotter, 65 N. C. 430, 4.32 ; Bate v. Graham, 11 N. Y. 237 ; Louisville, &c. Canal Co. v. Murphy, 9 Bush, 522, 529 (a simple denial in the answer) ; but see Scofield v. Whitelegge, 49 N. Y. 259, 261, which expressly holds that a denial merely in tlie answer is not sufficient; Shartle v. Minneapolis, 17 Minn. 308, 312. See also De la Mar v. ITurd, 4 Col. 442 ; Herschfield v. Aiken, 3 Mont. 442 ; Haggard v. Wallen, 6 Neb. 271 ; Worthey's Adm'r v. Hanmiond, 13 Bush, 510 ; Quaid ;;. Cornwall, 13 id. 601 ; Howland Coal Co. v. Brown, 13 id. 681; Gregsley v. Barr, 14 id. 330; Pearce v. Mason, 78 N. C. 37: Goff r. Board of Supervisors, 43 Wis. 55 ; Kretser v. Carej', 52 id. 374; Wiles v. Lambert, 66 Ind. 494. 644 CIVIL REMEDIES. A statement in the reply, however, of a fact which ought to have been alleged in the complaint or petition, is not sufficient, and does not cure the defect.^ § 580. The prayer for relief is generally regarded as forming no part of the cause of action, and as having no effect upon it, and as funishing no test or criterion by which its nature may be determined.2 This prevailing view was well expressed by a re- cent decision of the New York Court of Appeals in language which I quote : " The relief demanded by no means characterizes the action, or limits the plaintiff in respect to the remedy which he may have. If there be no answer, the relief granted cannot exceed that which the plaintiff shall have demanded in his com- plaint. But the fact, that after the allegation of the facts relied upon the plaintiff has demanded judgment for a sum of money by way of damages, does not preclude the recovery of the same amount upon the same state of facts by way of equitable relief. The relief in the two cases would be precisely the same ; the difference would be formal and technical. If every fact neces- sary to the action is stated, the plaintiff may even, when no answer is put in, have any relief to which the facts entitle hira consistent with that demanded in the complaint." ^ Although this theory has been accepted by most of the courts, and is approved in numberless cases, at least one tribunal of high character has suggested that the prayer for relief may be properly appealed to 1 Webb V. Bidwell, K Minn. 479, 485. man v. Filmore, 7 Oreg. 374 ; Balle v. -i Goodall V. Mopley, 45 Inil. 355, 359; Mossley, 13 S. C. 439 ; Dawson v. Gra- Lowry i;. Button, 28 Ind. 473; Bennett ham, 48 Iowa, 378 ; Herring i;. Hely, 43 V. Preston, 17 id. 291; Cincinnati, &c. id. 157; Mackey r. Auer, 8 Hun, 180; R. R. ?;. Washburn, 25 id. 259; Hale v. Benedict v. Benedict, 85 N. Y. 625; Omaha Nat. Banlv, 49 N. Y. 626, 631. Tewsbury r. Schulenberg, 41 Wis. 584; This doctrine cannot, of course, be true Gibson v. Gibson, 4G id. 449 ; Acker v. in tlie one or two States whose codes McCullough, 50 Ind. 447 : Rogers v. La- provide for a demurrer wlien tlie facts fayette Co., 52 id. 297 ; Bonnell v. Allen, alleged show tiiat tlie plaintiff is not en- 53 id. 130; Sohn v. Marion, &c. Co., 73 titled to the relief ;S redundancy, and the general denial would remain, under which all the facts constituting the defence, and which had been set forth at large in the rejected paragraphs, could be given in evi- dence at the trial. This practice, I say, is thoroughly settled in Indiana ; and the result is a system of pleading in that State which far surpasses, in its brevity and its adherence to the spirit of the codes, that prevailing in any other State. The cases col- lected in the notes illustrate many forms of pleading to which the rule has been applied, and exhibit its practical workings in a very complete manner.' The same doctrine and practice has been occasionally followed in other States.^ This subject will be again referred to in the subsequent section which deals with the union of defences. It is very plain that the faulty method described and criticised proceeds in a very great measure from an uncer- tainty in the mind of the pleader as to the matter which may be given in evidence under the "general denial:" whatever, then, will remove that uncertainty, will aid in producing a reform in the manner of stating defences in the answer. 1 Adams Ex. Co. v. Darnell, 31 Ind. Lowry v. Megee, 52 id. 107 ; Watts v. 20 ; Indianapolis, &c. R. R. v. Rutherford, Coxen, 52 id. 155 ; Bannister v. Grassy 29 Ind. 82 ; Jeffersonville, &c. R. R. v. Fork Ditch Ass'n, 52 id. 178, 184 ; West- Dunlap, 29 id. 426; Rhode v. Green, 26 ern Union. Tel. Co. v. Meek, 49 id. 53; id. 83 ; Boudurant v. Bladen, 19 id. 160 ; Smith v. Denman, 48 id. 65, 70. Butler V. Edgerton, 15 id. 15 ; Westcott ^ Rost v. Harris, 12 Abb. Pr. 446, per r. Brown, 13 id. 83; Garrison r. Clark, 11 Bosworth J.; Radde v. Ruckgaber, 3 id. 369 ; Cain v. Hunt, 41 id. 466, 471 ; Duer, 684 ; Simpson v. McArthur, 16 Abb. Ferguson v. Ramsey, 41 id. 511, 513; Pr. 302 (n.), per Brady J., Bruck v. Chicago, &c. R. R. v. West, 37 id. 211 ; Tucker, 42 Cal. 346. It is held in Florida Urton V. State, 87 id. 339 ; Port v. Rus- that the court may strike out such a epe- sell, 36 id. 60 ; Day v. Wamsley, 33 id. cial defence or not as it pleases, and 145; Allen v. Randolph, 48 id. 496; Trog- neither ruling will be error. Davis v. den V. Deckard, 45 id. 572 ; Wolf v. Scho- Shuler, 14 Fla. 438, 445. See also Colorado field, 38 id. 175 ; Widener v. State, 45 id. Cent. R. R. v. MoUanden, 4 Col. 154. A 244; Sparks v. Heritage, 45 Ind. 66; denial which is a mere inference from Lewis M. Edwards, 44 id. 333; Ohio and facts alleged is not a good denial. Wright Miss. R. R. V. Hemberger, 43 id. 462, 464 ; v. Schmidt, 47 Iowa, 233. Wilson V. Root, 43 id. 486, 493. See also 686 CIVIL REMEDIES. VI. General Denials of all Allegations not otherwise admitted or referred to. § 633. A practice has recently grown up of framing an answer in the following manner: To admit such of the plaintiff's aver- ments, if any, as the facts of the case require ; to deny others wholly or partially ; to explain and modify others if thought necessary ; in short, to unite in one answer or division thereof a mass of special admissions, denials, explanations, and affirmative statements, and to conclude the whole with a sweeping clause somewhat in this form : " As to each and every other allegation in said complaint not herein expressly admitted or denied or men- tioned, the defendant hereby denies the same ; " or, " And the de- fendant denies each and every other allegation in said complaint not hereinbefore expressly admitted or denied or mentioned.'" Although a somewhat similar mode of putting in issue the aver- ments of a bill in equity was occasionally resorted to by chancery pleaders under the former system, the codes give no countenance to, nor authority for, such a mongrel form of answer. The true spirit and intent of the theory introduced by the reformed pro- cedure plainly demand certainty, precision, and definiteness in the allegations of both parties, and especially in the denials by which the defendant places on the record the exact issues in- tended to be tried. In this respect the new method was to be a complete departure from the vagueness and uncertainty resulting from the broad effect given to the general issues in " assumpsit," " debt," and " trover " by the common-law courts, and also from the loose and incomplete manner of presenting the issues which necessarily characterized the answer in chancery. This design of the codes would, however, be utterly defeated if the vicious style of defence thus described should become common ; and the courts, it is submitted, ought to have pronounced most emphatic- ally against it when it first made its appearance. § 634. The codes require either a general denial, or specific denials, or defences in confession and avoidance ; and also that each defence must be separately stated, so that the issue raised by it may be perceived at once. The " general denial " is evidently intended to be an answer to the entire complaint or petition, — to negative all its averments. The design of the legislature and the PARTIAL GENERAL DENIALS. 687 understanding of the bar upon this point were shown by the im- mediate adoption of the form in use throughout all the States. The code of Iowa, revised in 1873, expressly enacts that the general denial is interposed to the whole petition ; and this pro- vision is plainly a statutory construction of the universally pre- vailing doctrine : a specific denial, on the other hand, must be addressed to some single, particular allegation, and must distinctly indicate the portion intended to be controverted by it. I am of opinion that each specific denial ought to be a single and separate defence by itself, so that, if the issue upon it should be decided in favor of the defendant, the cause of action would be defeated. In this respect, I think, the specific denials of the codes were intended to be analogous to the special traverses provided for by the English judges in their new rules of pleading adopted in 1834. Certain it is that the codes do not, by any stretch of their language, contemplate an answer consisting of a general denial directed to a part only of the complaint or petition, and connected with other admissions, partial denials, and explanations. § 635. Again : this form of answer makes it extremely diffi- cult, and often impossible, to determine what allegations are denied, and what are passed by in silence, and therefore ad- mitted. If the complaint or petition contains numerous aver- ments, and the answer is such a mass of express admissions, partial explanations, and statements of matter which is merely evidentiary, and concludes with the formula above quoted, we have all the evils which can result from the most vicious system or no-system that can possibly be conceived. The object of pleading is to ascertain and present the issues of fact between the litigants, so that they can be readily perceived and decided by the court and jury. The special boast of the common-law methods was, that they brought out these issues singly and clearly. I am confident that the theory of the reformed proce- dure, when lived up to and accurately followed, will give much better practical results than were ever obtained as a whole from the former system. The kind of answer which I have described violates every principle of this theory, and is a contrivance of ignorance or indolence. § 636. Notwithstanding the foregoing considerations, which appear to be such plain and necessary inferences from the lan- guage as well as the intent of the codes, the courts of New York G88 CITIL KEMEDIES. and of some other States have given a seeming approval to this most slovenly manner of stating the defence of denial. So far as their decisions have passed upon the subject, they seem either to approve such answers, or at most to hold, that, if improper, the only mode of correction is by a motion to make them more defi- nite and certain ; in other words, they are sufficient to raise the intended issues. It cannot be said, however, that the question has been settled by authority, or that this species of denial has become an established method of pleading wherever the reformed procedure prevails. The few cases which touch upon the matter will now be cited. In an action upon a policy of life insurance, tlie answer was of the kind mentioned, and concluded as follows : that " the defendant denied each and every allegation of the complaint not therein expressly admitted or denied." The Court of Appeals said of this answer : " It is clear both upon principle and authority, that, under a general or specific denial of any fact which the plaintiff is required to prove to maintain the action, the defendant may give evidence to disprove it.^ If an answer containing denials of the allegations of the complaint, except as thereinafter stated, is rendered indefinite, uncertain, or compli- cated, the remedy is by motion to make the answer more definite, and not by exclusion of evidence on the trial." ^ A similar answer, ending with a denial of " each and every allegation of the complaint except as herein admitted or stated^"" was held by the same court to be good and to raise an issue.^ VII. Allegations of Issuable Facts^ and not Conclusions of Law, should be denied. § 637. The complaint or petition, in addition to the facts from which the right of action arises, sometimes contains the conclu- 1 Wheeler v. Billings, 38 N. Y. 263. 8 Youngs v. Kent, 46 N. Y. 672 ; and 2 Greenfield v. Mass. Mut. Life Ins. see AUis v. Leonard, 46 N. Y. 688. That Co., 47 N. Y. 430, 437, per Grover J. An this form of denial is proper, and sufB- expression in this quotation indicates a ciently raises issues upon the allegations certain misconception on the part of the not admitted, seems to be now settled, at learned judge. A general denial of a fact least in several of the States. Walsh v. is something unknown in the s^'stem of Mehrback, 5 Hun, 448 ; Calhoun v. Hal- pleading established by the codes. See len, 25 Id. 165 ; Penn. Coal Co. v. Blake, also Leyde v. Martin, 16 Minn. 38; 85 N. Y. 226, 236 ; St. Anthony Falls Co. Becker v. Sweetzer, 15 Minn. 427, 434 ; v. King Bridge Co., 23 Minn. 186 ; Ingle Kingsley v. Gilman, 12 Minn. 515, 617, v. Jones, 43 Iowa, 288. 518, which show that this form of denial is fully approved by the Minnesota court. DENIALS OF LEGAL CONCLUSIONS. 689 sions of law which result from those facts, such as the indebted- ness of the defendant, his liability in damages, and the like. It is a fundamental principle of the pleading authorized by the codes, that these averments of fact must be denied, and not merely the legal conclusion therefrom ; a traverse of the latter without one of the former is a nullity, and creates no issue. When the issu- able facts are denied, a denial of the conclusions of law is unne- cessary, but would certainly be harmless. In this respect, the reformed procedure has introduced a new feature into the science of pleading. It is often said, I am aware, by writers of authority even, that, under the common-law methods, the facts were al- ways, and the legal conclusions were never, to be traversed. But this statement is clearly inaccurate. In some of the most com- mon forms of declaration in constant use, the leading averment was that " the defendant is indebted,'''' a mere inference of law ; and the general issue might be, " he is not indebted," or " he was never indebted," which was certainly nothing but the denial of a legal conclusion. All this has been swept away by the codes, and every trace of it left in the modern practice is in direct oppo- sition both to the spirit and to the letter of the statute. A denial of indebtedness or of lialiility, without denying the allegations of fact from which the indebtedness or liability is claimed to have arisen, is a nullity : it raises no issue, and will be held bad on demurrer, as is shown by the subjoined cases : In an action upon a promissory note, the answer admitted the execution of the note, and denied that the defendant owned the debt to the plaintiff. A demurrer to this answer was sustained, the court saying : " This answer under the former mode of pleading would have amounted to a plea of nil debet, and would not have been good, as the suit was brought upon a note in writing having the dignity of a specialty ; and we are of opinion that the answer was not sufficient under the present practice. It was not sufficient to state that defendant did not owe the debt." ^ All the cases, with hardly an exception, are to the same effect : as in an action on a note, an answer saying that " l^he defendants do not owe and ought not to pay the note, for they do not admit the regular pro- test thereof and notice," raised no issue ;2 also where, in an action for goods sold and delivered, the answer "denies that the defend- 1 Haggard v. Hay's Administrator, 13 " Clark v. Finnell, 16 B. Mon. 329, B. Mon. 175. 335. 44 690 CIVIL EEMEDIES. ant is indebted to the plaintiff as stated in the petition ; " ^ and where, in an action on a note, the answer simply denied indebt- edness to the plaintiff as claimed in the petition, or in any other sum or amount whatever.^ § 638. The same is true of any other denials of mere inferences or conclusions of law. Thus, in a suit upon a note given to the plaintiff, a married woman, and made expressly payable to her on its face, a defence that the " note is ©ot her separate property," and a denial that she is the legal owner and holder thereof, were both held nullities, and struck out on motion.^ The defence, in an action to foreclose a mortgage, " that D. [the mortgagor] was regularly and duly discharged from all his debts, including that to the plaintiff, under proceedings in insolvency," was held not to be new matter requiring a reply, " but only a conclusion of law and not of fact," and not to create an issue.* In an action to recover for injuries caused by the negligence of the defendant, the complaint, after stating the necessary facts showing the neg- ligent omissions, and the consequent destruction of the plaintiff's property, concluded, " to his great damage, to wit, in the sum of 8800." The answer simply denied " that the plaintiff had suf- fered damage in the sum of 8800." This denial raised no issue.^ § 639. The converse of the rule illustrated by the foregoing cases is also true. If the answer denies the material facts averred by the plaintiff, or alleges material facts constituting a defence of new matter, it need not deny the plaintiff's conclusions of law, or state any conclusions of law as the inference from the facts which it has pleaded. Thus, in an action upon a contract, the answer alleged all the facts necessary to show that the agreement 1 Francis v. Francis, 18 B. Mon. 57; " Frost v. Hatford, 40 Cal. 165, 166; and see Nelson v. Murray, 23 Cal. 338; Felch v. Beaudry, 40 Cal. 439. Curtis V. Richards, 9 Cal. 33 ; Wells v. * Christy v. Dana, 42 Cal. 174, 178. Mcl'ike, 21 Cal. 215 ; Higgins v. Germain, 5 Huston v. Twin and City, &c. Tump. 1 Mont. 230; Skinner !,-.Clute,yNev. 342. Co., 45 Cal. 550; Higgins v. Wortel, 18 2 Morton v. Coffin, 20 Iowa, 235, 238. Cal. 330. In an action to enforce a lien For further illustrations of the rule stated upon defendant's land, an answer which, in the text, see Man. Nat. Bank v. Kus- without controverting any of the facts al- sell, 6 Hun, 375 ; Starr v. Cragin, 24 Id. leged, simply denied that the plaintiff 177 ; Murray v. N. Y. Life Ins. Co., 85 had any lien, was held to raise no issue. N. Y. 23G, 239; Kentucky, &c. Co. v. Bradhury v. Cronise, 46 Cal. 287. See, Commonwealth, 13 Bush. 436; Louis v. however, Simmona v. Sisson, 26 N. Y. Brown, 7 Oreg. 320 ; Indianapolis, &c. 264, 270, 273. R. R. V. Risley, 50 lud. 60; Hunter v. Martin, 57 Cal. 3G5 DENIALS OF INFORMATION AND BELIEF. 691 was illegal as being in restraint of trade ; but the illegality was not expressly averred, nor relied upon as a defence by means of any clause drawing such a conclusion from the facts which were stated. The defence, however, was held to be sufficient both in form and substance : the facts constituting it were all pleaded ; and that was enough, without adding the legal inferences from them.^ VIII. Denials of Knowledge or Information. § 640. All the denials, either general or specific, to which the rules stated in the foregoing subdivisions apply, may be either positive, or denials of knowledge or information in respect to the matters alleged by the plaintiff. When the latter mode is adopted, the formula prescribed by the statute should be exactly followed, not because there is any value in the form simply as such, but because in no other manner can the defendant satisfy the de- mands of the code, and raise a substantial issue, — an issue which is not a subterfuge and pretence. When the denial is positive, the defendant is required to negative directly each and every allegation of the complaint or petition, or the particular ones controverted by him if less than all. If this cannot be done by reason of the defendant's ignorance, and he is therefore permitted to choose the other alternative, he must deny that he has any knowledge or information concerning the matters alleged suffi- cient to enable him to form a belief respecting them. Any other form must of necessity be evasive. And so the cases all hold ; but a single illustration will suffice. The complaint in an action to recover the price of gas furnished to a city being verified, the answer was as follows : " And this defendant says that the de- fendant has no knowledge or information in relation to the alle- gations of the second count of the said complaint, and therefore denies the same." On the trial, the averments of the second count were treated by the court as not denied, and as therefore admitted to be true ; and this ruling was sustained on appeal. The answer was held to be a nullity : the only denials permitted, it was said, are those positive in form, and those which deny any knowledge or information sufficient to form a belief; any others raise no issue.^ The same conclusion was reached in respect to 1 Frost V. More, 40 Cal. 347. 2 Gas Co. V. San Francisco, 9 Cal. 453. 692 CIVIL REMEDIES. an answer which stated that " the defendant has not sufficient knowledge or information to form a belief whether [certain alle- gations] are true, and therefore denies the same."^ § 641. Although the denial of knowledge or information may- be used in respect to every /onn of traverse, whether general or specific, yet it cannot be resorted to under all circumstances. There are occasions in which the defendant will not be permitted to say that he has no knowledge or information of the matter sufficient to form a belief, because such a statement would be a palpable falsehood, a plain impossibility. When the allegation in the complaint or petition is of a fact which must of necessity be within the personal knowledge of the defendant ; when it avers an act done or an omission suffered Ijy him personally ; when, for example, it states a contract entered into, or a deliber- ate wrong perpetrated, by himself, — he must know whether the averment is true or false. He will not be suffered to assert a defective memory, for such a forgetfulness is contrary to the general experience of mankind. If his recollection is at fault, the law affords him ample opportunity and means of refreshing it during the interval between the service of the adverse pleading and the time for answering. A denial, therefore, of the form described, pleaded in answer to allegations of a nature purely personal to the defendant, will be treated as sham and evasive, and will be struck out on motion. A demurrer would not be the proper remedy ; because the objection is not to the sufficiency as a defence^ but to the bad faith of the party in interposing a plead- ing of such a character. The rule was accurately stated by Mr. Justice Field of the California Supreme Court substantially as follows : " If the facts alleged are presumptively within the knowledge of the defendant, he must deny positively, and a denial of information or belief will be treated as an evasion. Thus, for example, in reference to instruments in writing alleged to have been executed by the defendant, a positive answer will alone satisfy the requirements of the statute. If the defendant 1 Curtis V. Richards, 9 Cal. 33. As to 55 Iowa, 207 ; Claflin v. Reese, 54 id. the proper form of such denials, and their 544 ; Neuberger v. Webb, 24 Hun, 347 ; effect in raising issues wlien thus proper, Mechan v. Harlem Sav. Bank, 5 id. 439; see also Kentucky, &c. Co. v. Common Grocers Bank v. O'Rorke, id. 18; wealth, 13 Hush, 430; Farmers Bank i-. Wiltman v. Watry, 37 Wis. 288; People The Board, &c., 75 N. C. 45 ; Slierman v. v. Curtis, 1 Idaho, 753. Osborn, 8 Oreg. 66 ; Ninde v. Oskaloosa, THE ISSUES FORMED BY DENIALS. 693 has forgotten the execution of the instruments, or doubts the cor- rectness of their description, or of tlie copies in the complaint, he should, before answering, take the requisite steps to obtain an inspection of the originals. If the facts alleged are not such as must be within the personal knowledge of the defendant, he may answer according to his information and belief." ^ IX. Issues raised hy Denials^ and what may he proved under them. § 642. In discussing the topics embraced within this subdi- vision, the same doctrines apply both to general and to specific denials. The only difference is in respect to the extent of their, effect and operation.^ The general denial raises an issue with the entire complaint or petition, and admits evidence in contra- diction to all the plaintiff's material allegations ; while the spe- cific denial raises an issue with the particular allegation alone to which it is directed, and only admits evidence in contradiction thereto. The same rules as to the effect of the general denial upon the issue raised with the whole complaint, and the proofs admissible under it, apply with equal force to the specific denial in respect to the narrower issue which it creates and the evidence which it admits. It will only be necessary, therefore, to discuss the objects and functions of the general denial, since the results of this discussion will be true of specific denials within their limited operation. In pursuing this discussion, I shall inquire (1) into the nature and effect of the general denial and the issues formed by it, and shall therein compare and contrast it with the general issues of the common law ; (2) the general nature of the evidence which may be admitted, and the defences which may be set up under it ; and (3) I shall state and classify a number of particular defences, and matters of defence, which have been held admissible or not admissible, or, in other words, a number of par- ticular defences which have been determined to be defences by way of denial, or to be new matter. 1 Curtis V. Richards, 9 Cal. 33, 38. See rett v. Goodshaw, 12 id. 592 ; Goodell also, to the same effect, Wing v. Dugan, v. Bloomer, 41 Wis. 436 ; Union, &c. Co. 8 Bush, 583, 586; Jackson Sharp Co. r. v. Supervisors, 47 id. 245; Collart v. Holland, 14 Flor. 384, 386. The rule Fisk, 38 id. 238 ; Hathaway v. Baldwin, stated in the text is also sustained by 17 id. 616 ; see Brotherton v. Downey, 21 the following cases : Huffarker v. Na- Hun, 436. tional Bank, 12 Bush, 287 ; Gridler i'. 2 gee Coles v. Soulsby, 21 Cal. 47, Farmers & D. Bank, 12 id. 333 ; Bar- 50, per Field, C. J. 694 CIVIL REMEDIES. § 643. 1. No topic connected with the whole subject of plead- ing is, I think, more important than the questions thus suggested. Undoubtedljs much of the confusion, redundancy, and unscientific character of pleadings under the codes is the result of ignorance or uncertainty as to the power of the general denial to admit de- fences upon which the defendant rehes. In very many instances the answer is made a long and rambling mass of purely evidentiary details, when the simple general denial, not exceeding two or three lines in length, would be fully as efficacious, and would present the issue in a sharper and clearer manner. The general denial is in some respects broader in its scope, and in some respects nar- rower, than the general issues as a whole at the common law. But little aid can be obtained from the rules which governed the use of the latter traverses, except by way of contrast ; and yet a statement in outline of those rules is important, in order that the contrast may be seen. I shall, therefore, by way of preface, collect and arrange the fundamental doctrines of the common law concerning the employment and effect of the general issue in the various ancient forms of action. § 644. All the possible defences in bar may be reduced to a few comprehensive classes ; and this classification will assist us in ap- preciating the distinction between those defences which ma}^ be proved under a traverse of the plaintiff's allegations and those which must be pleaded specially as " new matter," or matter in confession and avoidance. In respect to contracts, all possible defences must either (1) deny that there ever was a cause of ac- tion ; or (2) admit there was once a cause of action, but avoid it by showing subsequent or other matter. The first of these two classes may be subdivided into (a) those which deny that a suffi- cient contract was ever made ; and (h') those which admit that a sufficient contract was originally made, but show that, before breach thereof^ — that is, before the time for performance arrived, — it was in some manner discharged, or ceased to be binding. Similar divisions might be made of the defences in bar to per- sonal actions for all purposes. From this analysis the following conclusions may be drawn : Defences in bar to all legal actions on contract or for tort may be separated into, first, those which deny that the plaintiff ever had the cause of action alleged, because either wo foundation therefor ever existed, or, if such foundation ever existed, it had been in some manner removed before the THE GENERAL ISSUES. 695 cause of action arose therefrom ; and second, those which admit that a cause of action once existed, but show that it no longer exists.^ § 645. The General Issues at the Common Law. 1. In assumpsit. The general issue in the action of assu7npsit, called non-assumpsit, was, " That the defendant did not undertake or promise in the manner and form as the plaintiff hath complained against him." When we look at the grammatical construction of this plea, it is plain that in terms it only denies the promise ; and yet it was un- derstood as putting in issue every allegation of the declaration. The original scope and effect of this general issue were greatly enlarged by and through a long series of judicial decisions, until the following doctrine became fully established by the courts : namely, that, under this general issue in the action of assumpsit, there might be proven any defence falHng within the first of the two general classes stated at the close of the last paragraph ; that is, any defence showing that the plaintiff never had a cause of action, and also most of the defences falling within the second of those classes, and showing that there was no subsisting cause of action at the time of the commencement of the suit.^ The following are examples of the particular defences which illustrate this general proposition, and which might be given in evidence under the general issue of non-assumpsit : Those which insisted that no such contract as the one alleged had ever been m fact made ; those which admitted that the contract had been in fact made, but denied that was in law obligatory upon the defend- ant, which class embraced among others the following particular cases : that another person ought to have been made co-plaintiff; that defendant was an infant, a lunatic, or drunk, or a married woman, and therefore incapable of contracting ; that the contract was made under duress ; want of a sufficient or of a legal con- sideration ; illegality in the contract, as gaming, usury, stock- jobbing, &c. ; that the contract was void under the Statute of Frauds ; release or discharge before breach ; alteration ; non- performance of a condition precedent by the plaintiff: those which admitted not only that the contract had in fact been made, but also that a cause of action thereon had once existed, and asserted that it had been discharged before the suit was 1 See 1 Ch. PI. (Springfield ed., 1840), pp. 471, 472. 2 1 Ch. PI., pp. 476-478. 696 CIVIL REMEDIES. brought ; which class embraced, among others, payment, accord and satisfaction, a promissory note or other negotiable security given for the debt and still outstanding, foreign attachment, ar- bitrament, former recovery for the same cause, a higher security given, and release.^ In many of the States a notice of the matter constituting most of the special defences was required by statute to accompany the general issue in order that the same might be proven on the trial ; but my object is merely to contrast the pure common-law doctrines with those introduced by the code. It is evident that there were very few defences which must have been specially pleaded in assumpsit ; and the result was, that the par- ties went to trial in the majority of cases (where this ancient sys- tem prevailed unchanged) without the plaintiff having received any intimation on the record of the nature of the defence he was to meet. This great evil was remedied in England by statute and by rules of court made thereunder in 1834, which entirely changed the functions of the general issue, and required that most of the foregoing defences should be pleaded specially. § 646. 2. In debt. In the action of deht^ upon simple contract or legal liabilities, the general issue, called nil debet, was, " That the defendant doth not owe the said sum above demanded, or any part thereof, in manner and form as the plaintiff hath above com- plained against him." This language being in the present tense, taken in its plain grammatical sense, denies the existence of the debt at the time from which it speaks. Although, strictly speak- ing, it controverts a conclusion of law only, yet it was regarded as the proper mode of putting in issue all the averments of fact ; and under it, as a general rule, any defence could be proved which showed that nothing was due at tlie time of the pleading, — not only every defence which showed that the debt had never in fact or in law been contracted, but also every one which showed that the debt once contracted had been discharged, as payment, release, and the like. Those which were required to be specially pleaded were very few, and were regarded as ex- ceptions to the general rule ; the most important were the Statute of Limitations, tender and set-off, neither of which could be proved under the plea of nil debet.^ In the action of debt upon a specialty, there were two cases. (1.) Where the deed was the mere inducement to the action, and the other matter of fact 1 1 Ch. PI., pp. 476, 477. « 1 Ch. PL, p. 481. THE GENERAL ISSUES. 697 was the real foundation thereof. In this case also the general issue was nil debet, and it was governed by the same lax rule which controlled its use when the action was upon contracts not under seal.^ (2.) Where the deed was the very foundation of the action. There was in this case no answer of nil debet, nor any analogous thereto. The general issue was non est factum, as follows : " And the said defendant says that the said supposed writing obligatory [or indenture, or agreement] is not his deed." This plea was far more restricted in its operation than either of the others above mentioned. It admitted proof of matters going to show that the instrument was never executed by the defend- ant in point of fact, and of matters tending to show that for some reason the deed was void at the common law ab initio ; but facts designed to show that it was simply voidable, or that it was void by statute, and, in short, all other defences impeaching its legal- ity, and all defences consisting in matters of discharge, such as payment and release, or of performance or of excuse, and the like, must be specially pleaded.^ § 647. 3. In covenant. In the action of covenant, the only plea which might be called the general issue was non est factum. Its form and the rule as to the defences provable under it were iden- tical with those which existed in reference to the same answer in debt upon a specialty. The defendant might prove that he did not execute the agreement in suit, but could not prove that he had not broken its covenants. In other words, this general issue did not put in issue all the allegations of the declaration ; and all defences other than the non-execution of the instrument must be pleaded specially .^ § 648. 4. In account. There was no general issue in this action. All matters which went to show that the plaintiff was not entitled to the judgment for an accounting must be pleaded specially. All other matters which, conceding that the defendant was liable to account, merely affected the act of accounting itself, and the credits and debits therein, could not be pleaded in bar of the action, but were to be set up in the proceeding before the officer who heard it, — the auditor or master.* § 649. 5. In detinue. The action of detinue was used in cases to which that of replevin had been very generally extended in 1 Ibid. p. 482. 8 1 Ch. PI., p. 487. 2 1 Ch. PI., pp. 483, 484. * Ibid. p. 488. 698 CIVIL REMEDIES. the various States, and in which the action " for the claim and dehvery of personal property " is the appropriate means of relief under the code. The general issue, non detinet, was the follow- ing formula : " And the said defendant says that he does not detain the said goods and chattels in the said declaration speci- fied, nor any part thereof, in the manner and form as the said plaintiff hath above complained." It admitted proof of any facts showing that the defendant did not withhold the goods, or that the property or possession thereof was not in the plaintiff. In other words, it put in issue the plaintiffs property and possession and the defendant's detention. This general rule, apparently so simple, had, however, been refined upon, and nice distinctions had been introduced. Thus the defendant could not prove that the goods had been pledged to him, but might prove that they had been given to him by the plaintiff, since the latter fact denied the plaintiff's property. The defence of lien must always have been specially averred. ^ § 650. 6. Li case. The general issue in this most important and comprehensive action was termed not guilty^ and was in the following form : " And the said defendant says that he is not guilty of the premises [or grievances] above laid to his charge, or any part thereof, in manner and form as the said plaintiff hath above thereof complained against him." The action of case was said to have been based upon equity and good conscience ; and, under the above issue, any matter which showed that the plaintiff ought not in justice to recover might in general be proved. The general rule was that the plea of 7iot guilty, denying the entire declaration, admitted proof (1) of all matters which tended to contradict any averment in the declaration, (2) of all matters which operated as a discharge of the cause of action, and (3) of all matters by way of justification or excuse.^ Thus, for ex- ample, in the action on the case for defamation, slander, or libel, all defences could be established under the answer of not guilty^ except those which directly confessed the speaking or publishing the words, and their defamatory nature iinder ordinary circum- stances^ but avoided the cause of action by showing that they were not defamatory under the special circumstances of that case ; namely, the defences of "justification " and of "privileged com- munication." These two defences — the one setting up the 1 1 Ch. PI., p. 488. 2 1 cii. PI., pp. 490, 491. THE GENERAL ISSUES. 699 truth of the words, and the other setting up facts which removed the imputation of malice, and in reality excused the speaking or publishing — must be pleaded specially. Every other matter might be proved under the general issue ; although an election was frequently possible in respect to such defences, whether they should be presented in this manner, or should be pleaded specially.^ § 651. 7. In trover. The general issue in trover was also not guilty, and in the same form as in case, the action itself being a modification or special application of the more general action of case. This general issue was the most comprehensive of any known to the common law, and admitted all possible defences, with perhaps one or two exceptions. In fact, pleading specially was almost unknown in trover. No defences were ever presented in this manner except the Statute of Limitations, and release ; and it was doubted whether such mode was necessary even in these two instances.^ § 652. 8. In replevin. The plea which was called, although im- properly, the general issue in replevin, was non cepit. " And the defendant says that he did not take the said cattle [or goods and chattels] in the said declaration mentioned, or any of them, in manner and form as the said plaintiff hath above complained." This answer put in issue the fact of the taking, and also the tak- ing in the place mentioned in the declaration ; the latter fact being material in the special purposes for which this action was used at the common law.^ The action itself, in respect of its original objects and the rules of pleading controlling it, bears but little resemblance to the action bearing the same name which was generally in use in the various States, and which had been greatly modified by statutes and by judicial decisions; and certainly bears still less likeness to the proceeding for " the claim and delivery of personal property, " introduced by the codes. § 653. 9. In trespass. The general issue not guilty differed slightly in form from that in case. " And the said defendant says that he is not guilty of the trespasses above laid to his charge, or any part thereof, in the manner and form as the said plaintiff hath above complained." The effect of this plea was confined to the scope and extent of its denials in their grammatical sense ; 1 Ibid. pp. 491-497. » 1 Ch. PI., p. 498. 2 1 Ch. PL, p. 498. 700 CIVIL REMEDIES. in other words, as the language puts in issue only the trespasses, tlie defendant was restricted to the proof of matters tending to show that he did not commit the acts complained of. Trespass might be brought for violence to the person, for injury to or the taking and carrying away of goods, and for intrusion upon or in- jur}- to land. In the first case, the defendant might prove that he committed no assault, battery, false imprisonment, &c. ; and, in the second, that he did not injure nor take nor carry away the chattels. In the third case, the scope of the general issue was somewhat broader. To maintain the action, possession of the land by the plaintiff was necessary ; and the declaration averred his right by stating that it was " the close of the plaintiff." The general issue was regarded as denying this possessory right of the plaiutiff in the land ; so that, under it, the defendant might show not only that he did not commit the acts complained of, but also that the plaintiff had no possessory right to the premises, by prov- ing title and the right of possession in himself, or in some other person under whom he claimed, or by whose authority he had acted. All other defences in either of these three phases of the action must be specially pleaded. ^ § 654. 10. In ejectment. The only plea in ejectment was the general issue of not guilty., as in trespass ; and, under it, all pos- sible defences were admitted in proof.^ § 655. The general rules of which I have thus given an outline were greatly modified by statute and by new rules of pleading prepared in pursuance thereof by the English judges in 1834. These modifications, of course, had no compulsive authority in this country ; and, as they effected very great changes in the com- mon-law doctrines, they were not followed by the courts of the American States which adhered to the ancient procedure. The principal object and effect were to restrict the scope and opera- tion of the general issue in certain actions, — assumpsit, debt, case, and trover, — and to require many defences to be specially pleaded which could before have been proved under the general issues. It will be seen in the sequel that the principles of plead- ing embodied in the American codes necessarily lead, in part, to the same results. It is my design, however, to compare or con- trast the doctrines of the reformed American procedure with 1 1 Ch. PI., pp. 500-502. 2 1 Ch. PL, p. 507. THE GENERAL ISSUES. 701 those of the common law, and not with the changes made by English leg^islation. § 656. There are a few points which should be noticed in re- lation to the foregoing rules which governed the use of the gen- eral issue. In the first place, there was no uniformity in its operation. Its effect as a pleading, its extent and scope in the admission of various defences, did not depend upon any qualities inherent in itself, but resulted rather from the particular form of action in which it was employed. In the second place, the for- mula which was adopted in these different actions did not in any single intance purport, according to the literal import of the language, to answer and deny all the allegations of fact contained in the declaration, and which together made up the plaintiff's cause of action, but rather singled out and contradicted some particular one of these averments. As, for example, it denied the promise in assumpsit^ the execution of the deed in covenant and in one species of debt, the commission of the acts complained of in case and in trespass. Even in the single instance of nil debet, where issue seems to be taken by the express terms of the plea with the entire cause of action, the denial was not directed to the facts, but rather to the legal conclusion which arises from these facts. In the third place, this answer, in its practical operation, was miscalled the '•'• geiieral issue ; " for it ranged through almost every possible degree of efiScacy. In some instances, it did not put in issue all the allegations of the declaration, and was therefore far less than a general denial ; in otlier instances, it not only put in issue all the allegations of the declaration, but also admitted proof of nearly all the defences which the defend- ant could rely upon, and thus united in itself all the possible de- nials, and almost all the matters of affirmative defence, which could be used to defeat the plaintiff's recovery. In no single instance did it perform the exact functions of the general denial ; that is, in no case did it barely put in issue all the averments of the declaration, compelling the plaintiff to prove them, and permitting the defendant to disprove them. It either fell short of, or went far beyond, this natural, and, as it seems to me, strictly logical, office and function. In this respect, the theory of plead- ing embodied in the codes is more severely scientific as well as more simple and practical than that which lay at the basis of the common-law system. The general issue of non-assumpsit in 702 CIVIL REMEDIES, assumpsit, of nil debet in debt on simple contract, and of not [juilty in case and trover, in one important feature, resembled the modern " general denial," since they did put in issue the en- tire declaration, and acted as a traverse of all its averments, and as a consequence, admitted any evidence which tended to contra- dict those averments. But they all went far beyond this limit, and allowed the introduction of matters which were in no sense denials or contradictions. This peculiar characteristic of these forms of the general issue makes it impossible to draw analogies from them to aid in determining the true office of the general de- nial. It is only by contrast that any assistance can be obtained from the ancient rules and doctrines. § 657. I pass from the foregoing prefatory matter to examine the nature and office of the general denial, and the issues raised by it. In pursuing this inquiry, I shall rely upon the judicial opinions found in decisions which are universally regarded as au- thoritative, even using their language instead of my own wher- ever practicable. The case of McKyring v. BulP is conceded to be the leading one. The opinion of Mr. Justice S. L. Selden is so full, accurate, and able an exposition of the subject, that other judges have done little more than repeat his conclusions. The action was brought to lecover compensation for work and labor. The complaint alleged that the plaintiff entered into the employ- ment of the defendant at a certain date, and continued in such employment at defendant's request, doing work and labor until another specified date, and that the services so rendered were worth the sura of $650 ; and concluded as follows : " That there is now due to this plaintiff, over and above all payments and offsets on account of said work, the sum of $134 ; which said sum defendant refuses to pay : wherefore the plaintiff demands judgment for the last-mentioned sum, and interest from the 4th day of May, 1854." The answer was only a general denial. On the trial, the defendant offered to prove payment as a defence to the action ; but the evidence was excluded, on the ground that the defence should have been pleaded. He then offered to prove part payment in mitigation of damages ; but this was also rejected for the same reason. The case thus presented two questions to the Appellate Court for decision : (1) Whether payment could 1 McKyring i-. Bull, 10 N. Y. 297, decided in 1857. ISSUES FORMED BY THE GENERAL DENIAL. 703 have been proved as a defence under the general denial ; (2) whether it could have been proved in mitigation of damages. If the action had been assumpsit or debt, the evidence would have been admissible in either aspect. The opinion of Mr. Justice Selden will be found in the foot-note.^ 2 McKyriiig v. Bull, 16 N. Y. 297, 299. " While tiie general issue both in assump- sit and debt was in theory what the gen- eral denial allowed by the code is in fact, — namely, a simple traverse of the mate- rial allegations of the declaration or com- plaint, — yet from the different phraseology adopted in the two forms of action, a very different result was produced. The dec- laration in debt averred an existing in- debtedness ; and this amount was traversed by the plea of nil debet in the present tense : hence nothing could be excluded which tended to prove that there was no sub- sisting debt when the suit was commenced. In assumpsit, on the contrary, both the averment in the declaration and the trav- erse in the plea were in the past instead of the present tense, and related to a time anterior to the commencement of the ac- tion. Under non-assuvipsit, therefore, so long as the rule of pleading which ex- cludes all proof not strictly within the issue was adhered to, no evidence could be received except such as would tend to show that the defendant never made the promise. That this was tlie view taken of these pleas in the earlier cases is clear. . . . We find, however, that a practice afterwards grew up, and came at last to be firmly established, of allowing, under the plea of non-assumpsit, evidence of various defences which admitted all the essential facts stated in the declaration, but avoided their effect by matter subse- quent, such as payment, accord, and satis- faction, arbitrament, release, &c. The history and progress of this anomaly is easily traced." Mr. Justice Selden goes on to cite a series of cases sliowing this course of change by which non-assumpsit came at last to be the comprehensive plea which I have before described, and to state the theories by which judges and text-writers have attempted to reconcile this new doctrine and rule with the gram- matical form of the plea. He then pro- ceeds (pp. 301, 202) : " These errors proved in their consequences subversive of some of the main objects of pleading. The}' led to surprises upon the trial, or to an unnecessary extent of preparation. The courts, however, found it impossible to retrace their steps, or to remedy this and other defects in the system of plead- ing without authority from Parliament. This authority was at length conferred by the act of the 3d and 4th William IV., ch. 42, § 1 ; and the judges in Hilary Term thereafter adopted a series of rules, one object of which was to correct the errors which have been averted to. The first rule adopted under the head of assumpsit provided in substance that the plea of non- assurnpsit should operate when the promise was express as a denial of the promise; and when it was implied, of the matters of fact upon which the promise was founded. The object of this rule was to restore pleading in assumpsit to its origi- nal logical simplicity. It was obviously intended as a mere correction of previous judicial errors. It interprets the plea of non-assumpsit strictly according to its terms, and thus plainly indicates that the courts had erred in departing from those terms. That this was the view of the judges is shown by the different course taken in regard to the plea of nil debet. As this plea, construed according to its terms, included every possible defence within the issue which is formed, the judges did not attempt to change the im- port of those terms, but abrogated the plea. Rule two, under the head of Cove- nant and Debt, provides that ' the plea of nit debet shall not be allowed in any action ; ' and rule three substitutes the plea of nunquam indebitatus in its place. Thus the whole practice, which had con- tinued for centuries, of receiving evidence of payment and other special defences under the plea of nil debet or non-assumpsit, was swept away." Applying this his- torical analysis, he continues (pp. 302, 303) : " There are several inferences to 704 CIVIL REMEDIES. § 658. The discussion of the second question presented in this case is so complete and instructive, that I adopt it as a portion of the text. " The next question is, whether evidence of pay- ment, either in whole or in part, is admissible in mitigation of damages. As the code contains no express rule on the subject of mitigation, except in regard to a single class of actions, this ques- tion cannot be properly determined without a recurrence to the principles of the common law. By these principles, defendants in actions sounding in damages were permitted to give in evidence, / be drawn from this brief review which have a direct bearing upon our new and unformed system of pleading. The first is, that no argument in favor of allowing payment or any other matter in confession and avoidance to be given in evidence under a general denial can be deduced from the former practice in that respect, as this practice has been abandoned in England, not only as productive of serious inconvenience, but as a violation of all sound rules of interpretation. A second inference is, that, in regard to pleading, it is indispensable to adliere to strict logi- cal precision in the interpretation of lan- guage. The anomaly which has been referred to was wholly produced by the slight deviation from such precision in the action of indebitatus assumpsit which has been pointed out. But the most impor- tant inference to be deduced from the his- torical sketch just given consists in an admonition to adhere rigidly to that rule of pleading which permits a traverse of facts only, and not of legal conclusions ; and tliis brings us to the pivot upon which tlic point under consideration must necessarily turn. The council for the defendant insists, that, as the answer con- troverts every allegation of the complaint, it puts in issue the allegation with which it concludes ; viz., that there was due to the plaintiff at tlie commencement of the suit, over and above all payments and offsets, the sum of $134. But this allega- tion is a mere legal conclusion from the facts previously stated. Its nature is not changed by the addition of the words ' over and above all payments.' No new fact is thereby alleged. The plaintiff voluntarily limits his demand to a sum less than that to which, under the facta averred, he would be entitled. "Were courts to allow allegations of this sort to be traversed, they would fall into the same difficulty which existed in regard to the plea of nil debet, and which led the judges of England to abolish that plea. It would be impossible under such a rule, in a great variety of cases, to exclude any defence whatsoever, if offered under an answer containing a general denial. In England, as we have seen, after centuries of experience, it has been found most con- ducive to justice to require the parties virtually to apprise each other of the pre- cise grounds upon which they intend to rely ; and the system of pleading pre- scribed by the code appears to have been conceived in the same spirit. It was evi- dently designed to require of parties in all cases a plain and distinct statement of the facts which they intend to prove ; and any rule which would enable the defend- ants, in a large class of cases, to evade this requirement, would be inconsistent with this design. The case of Van Gieson V. Van Gieson, 12 Barb. 520, 10 N. Y. 316, contains nothing in opposition to the doctrine here advanced. That case simply decided, that, where the complaint con- tained an averment of nonpayment, a plea of payment formed a complete issue ; that, payment having been denied in the complaint, it was unnecessary to repeat that denial in a reply. My conclusion, therefore, is, that neither payment nor any other defence which confesses and avoids the cause of action can in any case be given in evidence as a defence under an answer containing simply a general denial of the allegations of the com- plaint." ISSUES FORMED BY THE GENERAL DENIAL. 705 in mitigation, not only matters having a tendency to reduce the amount of the plaintiff's claim, but, in many cases, facts showing that the plaintiff had in truth no claim whatever. It was not necessarily an objection to matter offered in mitigation, that, if properly pleaded, it would have constituted a complete defence. Thus, in Smithies v. Harrison, ^ the truth of the charge was re- ceived in mitigation in an action of slander, although not pleaded. Again : in the case of Abbot v. Chapman,^ which was an action of assumpsit, the defendant having given in evidence a release, Lord Holt said that ' he should have pleaded exoneravit, but that the evidence was admissible in mitigation of damages.' So too, in the modern case of Nicholl v. Williams,^ which was assumpsit for use and occupation, the defendant, having pleaded payment to a part of the demand, and non-assumpsit to the residue, was per- mitted, upon the trial, to prove payment in full ; but it was held that the evidence could only go in mitigation, and that the plain- tiff was entitled to judgment for nominal damages. It is obvious that this practice was open to serious objections. It enabled de- fendants to avail themselves of their defences for all substantial purposes without giving any notice to the plaintiff. .... But in regard to payment, release, &c., so long as they were received in evidence under the general issue in bar, no objection could be made to allowing them in mitigation. As soon, however, as this practice was abrogated by the rules of Hilary Term, 4th William IV., the question as to the admissibility of payment in mitigation at once arose." The learned judge here traces the course of Eng- lish decisions upon this question, citing and reviewing a number of cases, and referring to certain additional legislation ; * and con- cludes this discussion as follows : " The matter is now placed, therefore, in the English courts, upon a footing of perfect justice. If the 'demand for which an action is brought has once existed, and the defendant relies upon its having been reduced by pay- ment, he must appear and plead. § 659. " It is to be determined in this case whether we have kept up with these courts in our measures of reform. The rules 1 Smithies v. Harrison, 1 Lord Raym.- Lord Denman ; Shirley v. Jacobs, 7 C. & 727. P. 3, per Tindal C. J. ; Henry v. Earl, 8 2 Abbot V. Chapman, 2 Lev. 81. M. & W. 228 ; Rule of Trinity Term, 1st 8 Nicholl V. Williams, 2 M. & W. 758. Vict. 4 M. & W. 4. * Lediard v. Boucher, 7 C. & P. 1, per 46 706 CIVIL EEMEDIES. of Hilary Term (4 William IV.) and the system of pleading pre- scribed by the code have, in one respect, a common object ; viz., to prevent parties from surprising each other b}^ proof of what their pleadings give no notice. These rules, according to the construction put upon them by the courts, were found inade- quate, so far as proving payment in mitigation is concerned, to accomplish the end in view ; and it became necessary to adopt the rule of Trinity Term (1st Vict.) to remedy the defect. If the provisions of the code are to receive in this respect a construction similar to that given to the rules of Hilary Term, then an addi- tional provision will be required to place our practice upon the same basis of justice and convenience with that in England. But is such a construction necessar}^? Section 149 of the code pro- vides that the answer of the defendant must contain, 1. A gen- eral or specific denial of the material allegations of the complaint ; and, 2. A statement of any new matter constituting a defence or counterclaim. The language here used is imperative, — '•must contain.' It is not left optional with the defendant whether he will plead new matter or not ; but all such matter, if it constitutes ' a defence or counterclaim,' must be pleaded ; and this is in entire accordance with the general principles of pleading. The word 'defence,' as here used, must include partial as well as complete defences ; otherwise it would be no longer possible to plead paj'- ment in part of the plaintiff's demand, except in connection with a denial of the residue ; since section lo3 provides that ' the plain- tiff may in all cases demur to an answer containing new matter, when, upon its face, it does not constitute a counterclaim or de- fence.'' Such a restriction would be not only contrary to the general spirit of the code in regard to pleading, but would ob- viously conflict with § 244, subdivision 5, which provides that ' where the answer expressly, or by not denj'ing, admits part of the plaintiff's claim to be just, the court ma}^ on motion, order such defendant to satisfy that part of the claim,' &c. The ques- tion to be determined, then, is, whether these provisions are lim- ited in their operation to cases where the defendant seeks to avail himself of new matter strictly as a defence either in full or pro tanto, or whether they extend to the use of such matter in miti- gation. Were there nothing in the code to indicate the intention of the. legislature on this subject, we might feel constrained to fol- low the construction put by the English courts upon the rules of ISSUES FORMED BY THE GENERAL DENIAL. 707 Hilary Term. But § 246 provides that in all actions founded upon contract brought for the recovery of money only, in which the complaint is sworn to, if the defendant fails to answer, the plaintiff is entitled absolutely to judgment for the amount men- tioned in the summons without any assessment of damages. It is plain, tliat, in this tlass of actions, defendants who have paid part only of the plaintiff's demand must appear and plead such part payment, or they will lose the benefit of it altogether. The pro- visions of § 385 afford no adequate remedy in such cases, because the offer to allow judgment for a part does not relieve the defend- ant from the necessity of controverting the residue by answer. Section 246 could never have been adopted, therefore, without an intention on the part of the legislature that § 149 should be so construed as to require defendants, at least in tliis class of cases, to set up part payment by answer ; and it is difficult to suppose that they intended the section to receive one construc- tion in one class of actions, and a different one in another. My conclusion, therefore, is, that § 149 should be so construed as to require defendants in all cases to plead any new matter constitut- ing either an entire or partial defence, and to prohibit them from giving such matter in evidence upon the assessment of damages when not set up in the answer. Not only payment, therefore, in whole or in part, but release, arbitrament, accord and satisfac- tion, must here be pleaded. In this respect, our new system of pleading under the code is more symmetrical than that prescribed by the rules adopted by the English judges." ^ § 660. To this admirable judgment I shall add a few selections from opinions which seem to express the theory of the new sj's- tem in an accurate manner, or to illustrate its fundamental prin- ciples. The Supreme Court of New York, in an early case, described the office of the general denial in the following brief but ver}^ accurate manner: "Under a denial of the allegations of the complaint, the defendant may introduce any evidence which goes to controvert the facts which the plaintiff is bound to establish in order to sustain his action." ^ "Under the general denial of the code, evidence of a distinct affirmative defence is not admissible. The only evidence which the de- fendant is entitled to give is limited to a contradiction of 1 McKyring v. Bull, 16 N. Y. 297, 304- 2 Andrews v. Bond, 16 Barb. 633, 641, 307. per T. A. Johnson J. 708 CIVIL REMEDIES. the plaintiff's proofs, and to the disproval of the case made by him." 1 § 661. Whenever a reply is made necessary to all new matter contained in the answer, the question as to the nature of a de- fence has often arisen upon the plaintiff's failure to reply to allegations which the defendant insisted werfe new matter, and therefore admitted to be true by means of the omission, but which the plaintiff claimed to be mere argumentative denials, or, in other words, unnecessary averments of evidentiary facts which could be proved under a denial. In passing upon such a question, the Supreme Court of Minnesota fully approved and adopted the general doctrine which has been stated in the text.^ In another case before the same court, the question was examined with great care and marked ability. The action was upon a contract of sale : the answer consisted of specific denials of each allegation in the complaint ; and the defendant offered to prove that the contract was entered into on Sunday, and was therefore illegal and void. An extract from the elaborate opinion of the court will be found in the note.^ 1 Beaty v. Svvarthout, 32 Barb. 293- 294, per E. Darwin Sniitli J. ; and see Wheeler v. Billings, 38 N. Y. 263, 264, per Grover J. 2 Nash V. St. Paul, 11 Minn. 174, 178, per Wilson, C. J.: "An answer must either deny the facts alleged in the com- plaint, or set up new matter by way of avoidance. Those matters which the defendant should affirmatively plead as a defence are ' new matter ' within the mean- ing of our statute ; those that amount merely to a traverse of the allegations of the complaint are not. Was it, in this case, incumbent on or proper for the de- fendant to set out these matters in the answer? I think that it may be correctly laid down as a general rule of pleading thiit a defendant who admits the facts alleged, but wishes to avoid their effect, may and should nffirmatively set up the special matters on whit'h he relies as an avoidance. Finley v. Quirk, 9 Minn. 194. In this case the answer admits a contract in fact with the plaintiff, but denies its legal validity, and sets up the matters which show it void." a Finley v. Quirk, 9 Minn. 194, 200, per Wilson, C. J. : " The plaintiff can only allege facts ; and, in the answer, the defendant must eitlier deny the facts alleged in the complaint, or allege new matter by way of defence or avoidance. And where the answer consists merely in a denial, it is quite clear that the plaintiff will only be required to prove, and the defendant only permitted to controvert, the facts alleged in the complaint. In the language of Selden J., in Benedict v. Sey- mour, 6 How. Pr. 298, ' a general traverse under the code authorizes the introduc- tion of no evidence on the part of the defendant except such as tends directly to disprove some fact alleged in the com- plaint.' If the question of the h-rjality of the sale can be raised by a denial of any allegation of the complaint, it nmst be by a denial of the sale ; for the day or the time of the sale is not a material or trav- ersable fact." The judge then refers to the common-law doctrines respecting the general issue, and, by pursuing a similar train of reasoning to that followed by Sclden J. in McKyring v. Bull, arrives at the same conclusion, that the general de- nial of the codes is not the genernl issue of any common-law form of action. The discussion is thus summed up : " We hold, ISSUES FOIIMED BY THE GENERAL DENIAL. 709 § 662, In an action to recover possession of chattels where the complaint alleged j)roperty in the plaintiff, and the answer was a general denial, evidence tending to show that the plaintiff was not the owner was excluded on the trial. This ruling was dis- approved on appeal, the court saying : " The answer is a denial of each and every allegation of the complaint. The allegation of ownership is therefore denied. In Bond v. Corbett/ it was held that anything which tends to directly controvert the alle- gations in the complaint may be shown under the general denial. The defendant might, therefore, introduce evidence to show that plaintiff was not the owner, nor entitled to possession." ^ The same doctrine is maintained by the Supreme Court of Indiana.^ § 6QZ. The doctrine thus stated has also been approved by the Supreme Court of Missouri.* " It is clear, both upon principle and authority, that, under a general or specific denial of any fact which the plaintiff is required to prove to maintain the action, the defendant may give evidence to disprove it." ^ The true therefore, (1) that an answer merely by way of denial raises an issue only on the facts alleged in the complaint ; (2) that the denial of tlie sale in this case only raised an issue on the sale in point of fact, and not on the question of the legal- ity of such sale; (3) that all matters in confession and avoidance showing the contract sued upon to be eitlier void or voidable must be affirmatively pleaded." 1 Bond V. Corbett, 2 Minn. 248. 2 Caldwell v. Bruggerman, 4 Minn. 270, 276, per Atwater J. 3 Wood V. Ostram, 29 Ind. 177, 186, per Frazer C. J. : " Whatever may have been the rule formerly, it seems to us, that, under our Code of Procedure, the matter is made very clear. A denial ad- mits proof of no affirmative defence as the general issue did. It merely puts the plaintiff upon the proof of his averments, and authorizes the defendant, by Jus evi- dence, to controvert their truth. He can offer no evidence which proceeds upon the ground that tlie complaint is true, but that there are other facts which pre- clude the plaintiff's recovery notwith- standing." * Northrup v. Miss. Valley Ins. Co., 47 Mo. 435, 443, per Wagner J. : " When new matter is relied on in evidence or in defence, it must be set out in the answer. Under the old system, by pleading the general issue, everything was open to proof which went to show a valid defence. But the Practice Act, whicii has substi- tuted for the general issue an answer, and requires a statement of any new matter constituting a defence, in addition to a special denial of the material allega- tions of the petition intended to be con- troverted, has worked a total change in the principles of pleading. The defend- ant, by merely denying the allegations in the plaintiff's petitition, can try only such questions of fact as are necessary to sus- tain the plaintiff's case. If he intends to rely upon new matter which goes to defeat or avoid the plaintiff's action, he must set forth, in clear and precise terms, each substantial fact intended to be so relied on. It follows, that, whenever a defendant intends to rest his defence upon any fact whicli is not included in the allegations necessary to the support of the plaintiff's case, he must set it out according to the statute, or else he will be precluded from giving evidence of it on the trial." 5 Greenfield v. Mass. Mut. Life Ins. Co., 47 N. Y. 430, 437, per Grover J. ; Wheeler V. Billings, 38 N. Y. 263. 710 CIVIL REMEDIES. scope of and limitations upon this form of traverse were well illustrated in a very recent case decided by the Xew York Court of Appeals. The complaint alleged that the j)laintiff was owner of certain shares of stock in a corporation ; that the stock had been transferred to one W. to hold for the plaintiff; that W., without the plaintiff's knowledge, had transferred the same to the defendant, in payment, as defendant claimed, of a debt due from him to defendant ; and prayed that defendant might be compelled to re-transfer and deliver the same to the plaintiff. The answer was a general denial. The nature and extent of the issues thus presented were discussed, and the principle which controlled them was stated by Mr. Justice Grover, who pro- nounced the defence inadmissible.^ § 664. A general denial being pleaded in an action on a non- negotiable note brought against the maker thereof, evidence designed to show a want of consideration was rejected at the trial. The New York Supreme Court, in reviewing this ruling, very properly held that this defence may be proved under an answer of denial in actions upon all contracts which do not import a consideration.^ While the very point decided, that evi- 1 Weaver r. Barden, 49 N. Y. 286, 297 : " To establish a cause of action, the plaintiff was bouiul to prove that he was the legal owner of the stock, or was equitabl}- entitled to it as against the defendant. Under this answer the de- fendant liad a right to give evidence controverting any fact necessar}^ to be establislied by tlie plaintifi" to authorize a reconveyance, but not to prove a defence founded upon new matter." Recapitulat- ing tiie facts actually proved by tlie plaintif}', — namely, those alleged in the complaint as above stated, and tiiat W. held tlie stock as a trustee for the plain- tiff, — he continued: "This established the plaintiff's right to tlie stock as against the defendant, unless he was a Itotin fide purchaser from W. To meet this case, the defendant offered to prove in substance that he was a homi fide, pur- chaser from W. The Special Term held, against j)laintiff 's objection, that this was admissible under the answer. This was error. Under the general denial, the defendant could not introduce ividcnce tending to show a defence founded upon new matter, but such only as tended to disprove any fact that the plaintiff must prove to sustain his case." The court, however, did not pass upon the question thus discussed by Grover J. : the decision was placed upon a difi'erent ground ; viz., that defendant was not a bona fide pur- chaser. - Evans v. Williams. 60 Barb. 346, per T. A. Johnson J. : " Want of considera- tion could always be shown under the general issue. Anything which tended to show that a party to an instrument iievi-r had a cause of action against the other party to it was always competent under the general denial of the cause of action alleged, and is so still. The rule does not apply to the holder of negotiable paper who takes it in good faith. But this is not a negotiable note. A general denial now, like the general issue mider the former practice, puts in issue the ex- istence, at any time, of the cause of ac- tion alleged in the C()m[)laint. and admits of evidence tending to establish such de- fence. If a cause of action has once ac- crued or existed, and has been satisfied ISSUES FORMED BY THE GENERAL DENIAL. 711 dence of a want of consideration could be admitted, is undoubt- edly correct, the opinion as a whole is very careless and inaccurate, and the general criterion which it lays down is clearly erroneous. There are many classes of defences which show that a cause of action never existed, and which cannot be proved under the general denial, but must be pleaded ; as, for example, illegality, fiaud, duress, and the like. The learned judge was entirely misled by the analogies drawn from the ancient practice. The general denial puts in issue the facts, which, if true, consti- tute a prima facie cause of action. A consideration is, in general, one of these facts in actions upon contract. When these facts are admitted, but by reason of some extraneous features or ele- ments affecting them they do not produce the otherwise necessary result, that element which constitutes the defence, and which destroys the prima facie legal aspect of the facts, is certainly not put in issue by the general denial : it is new matter, and must be specially pleaded. § 665. The courts of one State alone dissent from this course of judicial decision, and give to the general denial of the code something of the comprehensive operation which belonged to the general issues of non-assumpsit and nil debet at the common law. The construction adopted in California seems to regard the gen- eral denial — certainly in actions upon contract — as admitting any defences which show that there is no subsisting cause of action at the time of the commencement of the suit. At least the defence of payment is thus held admissible ; and, if it be so, other similar defences, such as release, accord and satisfaction, and the like, cannot with consistency be rejected. This doctrine of the California courts is stated and illustrated in the following cases : In an action upon contract the complaint contained three counts, each in the form of the common-law indebitatus assumpsit. The answer was a general denial. Upon these issues the court said : " In each count of the complaint there is an averment that on, &e., the defendant was indebted to the plaintiff in a specified sum, and promised to pay it, but therein has made default. The answer contained a general denial, which made it incumbent on the plaintiff to prove a subsisting indebtedness from the defend- ant to the plaintiff at the time of the institution of the suit. or defeated by reason of something which matter, wliich must be pleaded in order to has occurred subsequently, that is new render it competent as evidence." 712 CIVIL REMEDIES. Under this denial, it would have been competent for the defend- ant to prove payment.^ For the same reason, it is competent to show that the phiintiff had transferred the demand, and that the defendant, therefore, was not indebted to him." ^ In another case upon a promissorjMiote the complaint was in the usual form, setting out the note, and alleging that it had not been paid, and that there was due upon it a specified sum, for which judgment was demanded. The answer was the general denial. " The question is," said the court, " whether the general denial presents any issue of fact. In Frisch v. Caler,i this question was fully considered. The statute then in force required a replication to new matter in the answer. The answer averred that the note in suit had been paid by the defendant ; and it was contended that that averment was admitted because of the failure on the part of the plaintiff to file a replication denying it. But the court held that it was not new matter ; that the failure to pay the note con- stituted the breach, and must be alleged ; and that the allegation in the answer — that it had been paid — was only a traverse of the allegation in the complaint that it had not been paid. (See also Brown v. Orr.) ^ The doctrine then laid down has not since been departed from, so far as we are aware, except in the case of Hook V. White ; ^ and that case, so far as it holds that the allega- tion in the complaint that the note remains unpaid is immaterial, and that a denial of the allegation does not put any fact in issue, ought, in our opinion, to be overruled. The general denial in this case puts in issue the averment of the complaint, that the prom- issory note remained due and unpaid."^ This decision falls far short of sustaining tlie sweeping doctrine of Mr. Justice Crockett, in the preceding case of Wetmore v. San Francisco, as to the effect of the general denial. When the opinion of Mr. Justice Rhodes is analyzed, it does not in fact lay down any principle different from that maintained by the cases cited from the courts of other States. It simply asserts that the general denial puts in issue the allegations of the complaint, and that the negative averment of non-payment, when traversed in this manner, produces a com- 1 Frisoli V. Caler, 21 Cal. 71; Brown Cal. 572, 574; Brooks v. Chilton, 6 Cal. V. Orr, 29 Cal. 120 ; Davanay v. Eggen- 640. hoff, 43 Cal. 305. s Brown v. Orr, 29 Cal. 120. 2 Wetmore v. San Francisco, 44 Cal. * Hook v. White, 30 Cal. 290. 294, 290. 300, per Crockett J. ; and see ^ Davanay v. Eggenhoff, 43 Cal. 395. especially Fairchild v. Ainsbaugh, 22 397, per Rhodes J. ISSUES FOKMED BY THE GENERAL DENIAL. 713 plete issue, under which evidence of payment may be offered. This is very far from holding, with Crockett J., that the defence of payment is admissible under the general denial in all cases. § 6QQ. The foregoing extracts from the judgments of so man}^ courts leave little room and little need for any addition by way of comments. The unanimity of opinion in respect to the funda- mental principles of pleading embodied in the codes is almost abso- lute ; and this principle has been so clearly formulated by several of the judges, that no difficulty ought to arise in its practical appli- cation. The office of the general denial, like that of the old trav- erses, is twofold : it forces the plaintiff to prove all the material allegations of fact contained in his complaint or petition, and con- stituting his cause of action, by sufficient evidence at least to make out a prima fade case ; it also permits the defendant to offer any and all legal evidence which controverts those aver- ments, and contradicts the plaintiff's proofs. It is clear that no exact statement can be made defining with universal precision what particular issues the general denial raises in all possible cases, and what particular defences it admits ; and in this respect it differs from the general issue. As a result of the common-law methods of pleading, and the uniformity of averment necessarily used in all actions of the same class, the operation of the general issue in every suit was exactly defined ; and this was especially so after the rules made in 4th William IV. (1834.) Certain averments, and none others, of the declaration, were put in issue by it ; certain defences, and none others, were admissible under it. This precise rule cannot be laid down in respect of the gen- eral denial, because there is no necessary uniformity in the aver- ments of complaints or petitions in actions of the same kind brought on the same substantial facts, and seeking the same relief. As the general denial puts in issue all the material allega- tions made by the plaintiff, and admits all evidence contradicting them, what issues it actually raises, and what defences it actually admits, in a given case, must depend upon the frame of the com- plaint or petition, and upon the number and nature of the allega- tions which the plaintiff has inserted therein. It could be said of the general issue in all actions upon contract, — assumpsit, debt, covenant, — after the rules of Hilary Term, 1834, that the defence of payment was never admissible under it. If we would speak with perfect accuracy, such language cannot be adopted as the 714 CIVIL REMEDIES. expression of .a universal rule in respect of the general denial ; for the plaintiff may so shape his pleading, and introduce into it such a negative averment of non-payment, that the proof of pay- ment would be simply supporting the general denials of the answer. Several cases already cited sufficiently sustain the correctness of this position ; and others, to be hereafter more particularly referred to in a subsequent portion of this section, and in the next section under the head of Payment, will furnish various examples of this feature of distinction between the gen- eral denial and the general issue. ^ Additional cases, bearing upon the nature and effect of the general denial, are collected in the foot-note.^ § 667. As the general denial forms an issue upon the entire cause of action set up by the plaintiff, and forces him to prove the same substantially as alleged, the question becomes one of great practical importance : What are the averments in the com- plaint or petition which are thus negatived, and which must be established by sufficient proof on the trial ? The full answer to this question belongs rather to a discussion of the requisites of the plaintiff's than of the defendant's pleading, and will be found in Chapter Third. The universally accepted rule is, that only those averments of the complaint or petition which are material and proper are put in issue by a denial either general or specific 1 See Quin v. Lloyd, 41 N. Y. 349 ; Jolinson v. Cuddington, 35 id. 43 ; Brett v. Marley v. Smith, 4 Kans. 183 ; Frisch v. First Univ. Soc, 63 Barb. 610, 616 ; Cat- Caler, 21 Cal. 71; White v. Smith, 46 lin v. Gunter, 1 Duer, 2-53, 26.5; Robinson N. Y. 418; Van Gieson V. Van Gieson, 10 v. Frost, 14 Barb. 536, 541; Texier v. N. Y. 316. Gouin, 5 Duer, 389, 391 ; Dyson v. Ream, 2 Button V. McCauIey, 38 Barb. 413 ; 9 Iowa, 51 ; Scheer v. Keown, 34 Wis. Schular v. Hudson River R. R., 38 Barb. 349, 3-56. Tlie conclusions of tlie text as 653 ; Schermerliorn t'. Van Allen, 18 Barb, to what allegations in the plaintiff's 29 ; Hendricks v. Decker, 35 Barb. 298 ; pleading the general denial puts in issue Perkins v. Ermel, 2 Kans. 325; Adams and compels him to prove, and what evi- Ex. Co. V. Darnell, 31 Ind. 20 ; Lafayette dence it admits on the part of the defend- &c. R. R. f. Ehman, 80 id. 83; Watkins ant, are further illustrated by Paris v. V. Jones, 28 id. 12 ; Frybarger v. Coke- Strong, 51 Ind. 339 ; Stafford v. Nutt, 51 fair, 17 id. 404; Bingham v. Kimball, 17 id. 535; Bate v. Sheets. 50 id. 329; Mor- id. 396 ; Norris t-. Amos, 15 id. 365 ; gan v. Wattles, 69 id. 260 ; McWilliams v. Hawkins v. Borland, 14 Cal. 413; God- Bannister, 40 Wis. 489; Moulton v. dard v. Fulton, 21 Cal. 430 ; City of Thompson, 26 Minn. 120 ; School Dist. v. Evansville v. Evans, 37 id. 229, 236; Shoemaker, 5 Neb. 36 ; Jones v. Seward Hier v. Grant, 47 N. Y. 278 ; Schaus v. Co., 10 id. 154 ; Scott v. Morse, 54 Iowa, Manhattan Gas-Light Co., 14 Abb. Pr. 732; Amador Co. y. Butterfield, 51 Cal. (n. s.) 371; Hunter v. Matins, 40 id. 520; Elderi;. Spinks, 53 id. 293. 356 ; Ammerman i-. Crosby, 26 id. 451 ; ISSUES FORMED BY THE GENERAL DENIAL. 715 in its form. *' Material " or " proper " are not, however, synony- mous with " necessary." A plaintiff may insert in his pleading allegations which are unnecessary in that position, and which are not in conformity with the perfect logic of the system, but which, when once introduced, become " material," so that an issue is formed upon them by a general or a specific denial. The in- stance just mentioned, of an allegation of non-payment in the complaint met by a denial in the answer, is a familiar example of such averments, material, although not necessary. § 668. It is an elementary doctrine of pleading under the new system, that only the issuable facts — that is, the conclusions of fact which are essential to the existence of the cause of action, or upon which the right to relief wholly or partially depends in equitable suits — are material, and are therefore put in issue by the denial ; and the converse of the pi-oposition is true, that the averments of mere evidentiaiy facts, if inserted in the pleading, are not thus controverted. Although this doctrine is elementary, and appears so simple in the statement, it is nevertheless some- times exceedingly difficult of application in practice ; and the difficulty is enhanced by the frequent inconsistencies of courts in dealing with it. While the general principle, as just stated, is constantly affirmed, yet there are numerous instances of particu- lar causes of action in which the plaintiffs are required to set out in detail matter which is plainly evidentiary, and which is only of value as leading the mind to a conviction that the final or issu- able fact, which is one necessary element of the right of action, exists. In other words, the courts have often, while dealing with particular cases, violated the elementary principle which applies, or should apply, to all cases ; and the result is confusion and un- certainty. It is possible, however, to distinguish between issua- ble, material facts, and evidentiary facts, by an unfailing criterion. In all particular instances of the same cause of action based upon the same circumstances, — that is, arising from the same primary right in the plaintiff, broken by the same delict or wrong on the part of the defendant, — the material or issuable facts which are the essential elements of the right of action must be the same : immaterial circumstances, the time, place, amounts, values, ex- tent of damages, parties, and the like, will be different ; but the substantial elements of the cause of action, the facts which con- stitute it, must in every instance of the same species be the same. 716 CIVIL REMEDIES. On the other hand, the evidentiary matter, the mass of subor- dinate facts and circumstances which must be actually proved, and from which the above-described essential elements result as inferences more or less direct, may vary with each particular instance of the same species of cause of action. The former class of facts are material, issuable, and, when the theory of pleading in legal actions is strictly observed, they alone should be averred, and they alone should be treated as put in issue b}^ the denials, general or specific: the second class of facts — the proper evi- dentiary matter — should not be pleaded, and, if improperly averred, should not be regarded as put in issue by the denials of the defendant. This is the true theory, and is again and again commended by the courts ; but, at the same time, it is constantly violated by the same courts in their requirements in respect to the pleading in certain specie* of causes of action. Another source of difficulty in applying the elementary doctrine is found in the circumstance, that not infrequently the material, issuable fact which must be averred, and which is put in issue, is iden- tical with the fact which must be actually given in evidence. In respect of such matters there are no steps and grades, and pro- cesses of combination and deduction, by which the issuable fact alleged is inferred from the evidentiary fact proved. The two are one and the same ; and thus matter which is truly evidence must in such case be alleged, and matter which is the proper sub- ject of allegation must be directly given in evidence. § 669. Another and the final element which should belong to the averments in the complaint, in order that an issue may be raised thereon by the denial, is, that they must be of fact, and not of law. This particular topic has already been treated of in a former subdivision of the present section. The reformed system of pleading, unlike that of the common law, authorizes no issues to be raised by allegations of legal conclusions, and denials of the same. Although there are traces to be found in some of the cases of the ancient forms of averment in indebitatus assumpsit and in debt, and of answers resembling the plea of nil debet, yet all the decisions of present authority unite in theoretically con- demning such a mode of pleading. I need not, however, dwell u[)on this particular rule, nor again refer to cases which have been so recently cited. An allegation of law in the plaintiff's pleading is not controverted by the defendant's denial : no issue DEFENCES ADMITTED UNDER A DENIA... 717 is formed thereby under which evidence can be admitted from either party. § 670. Second. The General Nature of the Evidence which may he admitted, and the Defences which may be proved, under the Denials of the Answer. The judicial opinions quoted under the preceding head sufficiently establish the principle which controls all the questions embraced under the present, and the cases to be cited in the following one will illustrate the application of that principle. In fact, it is so intimately bound up with the subject last discussed, that it has already been stated and explained. I shall, however, recapitulate and restate this fundamental doc- trine. The material allegations of the complaint or petition, when denied either generally or specifically, determine in each case what evidence and what defences may be given and estab- lished by the defendant. It is impossible to say of any class of cases, that such or such evidence can or cannot be offered as a matter of certain rule, or that such or such a defence can or can- not be set up. As the plaintiff is bound by no inflexible rule as to the form of his pleading, and as to the averments he may choose to introduce into it, so he can widen or contract within distant extremes the extent and nature of the evidence and de- fences which may be interposed by the defendant under a denial.^ As the denial puts in issue all the material allegations of fact made by the plaintiff, whether originally necessary or not, he is at liberty to introduce all and any legal evidence which tends to sustain those allegations. On the other hand, under the same issue, the defendant is entitled to offer any evidence which tends to contradict that of the plaintiff, and to deny, disj)rove, and overthrow his material averments of fact. This is the funda- mental and most comprehensive doctrine of pleading embraced in the new procedure, and it of course determines the nature of the defences which may be set up under a general denial. It is to be observed — although the remark is perhaps unnecessary — that the defendant may in this manner attack any material alle- gation of fact, and thus, if possible, defeat the recovery, while the others are left unanswered or unassailed.^ 1 See Chicago, &c. R. R. v. West, 37 Scott v. Morse, 54 Iowa, 732 ; Roe v. Ind. 211, 215. Angevine, 7 Hun, 679; Manning v. Win- 2 As further illustrations of the text, ter, 7 id. 482 ; Boomer v. Koon, 6 id. 645 ; see Jones v. Seward Co., 10 Neb. 164; Andrews v. Bond, 16 Barb. 633; Beaty v. 718 CIVIL EEMEDIES. § 671. As the allegations of the complaint or petition contro- verted by the denials of the answer determine the nature and extent of the evidence admissible under such denials, it follows that this evidence may be sometimes negative and sometimes affirmative. Herein lies the source of much confusion and uncer- tainty as to the character of the defendant's proofs and defences, and as to their admissibility under the general denial. Evidence in its nature affirmative is often confounded with defences which are essentially affirmative and in avoidance of the plaintiff's cause of action, and is therefore mistakenly regarded as new matter re- quiring to be specially pleaded, although its effect upon the is- sues is strictly negative, and it is entirely admissible under an answer of denial. In other words, in order that evidence may be proved under a denial, it need not be in its own nature nega- tive : affirmative evidence may often be used to contradict an allegation of the complaint, and may therefore be proved to maintain the negative issue raised by the defendant's denials. One or two familiar examples will sufficiently illustrate this pro- position. In certain actions, property in the plaintiff, in respect of the goods which are the subject-matter of the controversy, is an essential element of his claim. His complaint, therefore, avers property in himself : the allegation is material, and is, of course, put in issue by the general or specific denial. To maintain this issue on his part, the plaintiff may give evidence tending to show that he is the absolute owner, or has the requisite qualified prop- erty. The defendant may controvert this fact in two modes. He may simply contradict and destroy the effect of the pLaintiff's proofs, and in this purely negative manner procure, if possible, a decision in his own favor upon this issue. The result would be a defeat of the plaintiff's recovery by his failure to maintain the averment of his pleading : but the jury or court would not be called upon to find that the property was in any other person ; the decision would simply be, that the plaintiff had not shown it to be in himself. On the other hand, the defendant, not attempt- ing directly to deny the testimony of the plaintiff's witnesses, and to overpower its effect by directly contradictory proofs, may in- troduce evidence tending to show that the property in the goods Swartliout, 32 id. 293; Schermerhorn u. 278; Dunliain v. Bower, 77 id. 76; Van Allen, 18 id. 29; Scharz v. Oppold, Brown v. College, &c., 5G Ind. 110. 74 N. Y. 307, 300 ; Heir v. Grant, 47 id. DEFENCES ADMITTED UNDER A DENIAL. 719 is, in fact, in a third person. This evidence, if convincing, would defeat the plaintiff's recovery. It would be affirmative in its direct nature ; but its ultimate effect, in the trial of the issue raised by the answer, would be to deny the truth of the plaintiff's averment. Such evidence, although immediately affirmative, would still, for the purpose of determining the issue presented by the pleadings, be negative. Again : in an action on a promis- sory note against the maker or indorser, the complaint might allege title in the plaintiff, and the fact that he was the owner and holder thereof. The answer of denial would put this aver- ment in issue, as it would be material, and its truth essential to the recovery. Proof by the defendant, that, prior to the com- mencement of the action, the plaintiff had assigned the note to a third person, would be affirmative in its immediate nature, but negative in its effect upon the issue ; for it would controvert the truth of the plaintiff's allegation. Cases cited under the next subdivision hold that the evidence which I have thus described in both of these examples is admissible under the general denial. § 672. The theory of the general denial is completed by con- sidering what evidence cannot be given, and what defences can- not be set up, under it. This subject will be discussed at large in the following section : but some reference to it is appropriate in the present connection. The codes divide defences into denials and new matter. New matter must be specially pleaded. De- fences at the common law were separated into traverses general and special, and pleas by way of confession and avoidance. The general traverses were the general issues, and special traverses were denials of some particular allegation. The common-law distinction between these classes of defences was generally stated by the text-writers as follows : The general issue, when used in accordance with the original theory in those actions which ad- mitted its full efficacy, put in issue the entire cause of action, and under it the defendant was permitted to offer any evidence and set up any defence which showed that the right of action never ^ in fact, existed. The plea by way of confession and avoid- ance, on the other hand, did not deny the facts from which the cause of action arose. It admitted or " confessed " that a cause of action once existed as averred, and set up other and subse- quently occurring facts which showed that the right after it had occurred had been in some manner discharged, satisfied, or de- 720 CIVIL REMEDIES. feated. Is it possible to draw the same distinction between the general denial and the new matter of the code ? I answer, It is not. Such a distinction, although correct in many instances, is not true absolutel3^ One reason for this is, that the plaintiff may so frame his complaint or petition, may insert in it allega- tions of such a sort, that a general denial will admit proof of facts which would be strictly matter by way of confession and avoid- ance under the former procedure. Certain passages in judicial opinions which have identified the " new matter " of the codes with the pleas by way of confession and avoidance of the com- mon law, are, therefore, inaccurate : they were written by their authors in forgetfulness of the inherent difference between the fixed forms of the common-law declarations, and the varying forms of the complaints and petitions which may properly, though not perhaps scientifically, be used under the new sys- tem. To illustrate: Payment after breach of a contract, and therefore after a cause of action arose, is certainly matter by way of confession and avoidance ; and yet a complaint may be so drawn that payment will not be new matter, but will be prov- able under a general denial. Other examples might be given ; but this single one suffices. § 673. The result is, that the new matter of the code does not, like the matter in confession and avoidance of the common law, depend upon the essential nature of the cause of action and of the defence^ but, like the effect of the general denial, it depends pri- marily upon the nature of the material allegations which are em- braced in the complaint. Any facts which tend to disprove some one of these allegations may be given in evidence under the denial ; any fact which does not thus directly tend to disprove some one or more of these allegations cannot be given in evi- dence under the denial. It follows, that if such fact is in itself a defence, or, in combination with others, aids in establishing a defence, this defence must be based upon the assumption, that, so far as it is concerned, all the material allegations made by the plaintiff are either admitted or proven to be true. The facts which constitute or aid in constituting such a defence are " new matter." In this respect the new matter of the codes is analo- gous to the pleas by way of confession and avoidance of the com- mon law, since it does, in truth, confess and avoid. The two definitions may now be given, and their contrast will be plain. DEFENCES ADMITTED UNDER A DENIAL. 721 A plea by way of confession and avoidance admitted that the cause of action alleged did once exists and averred subsequent facts which operated to discharge or satisfy it. The new matter of the codes admits that all the 7naterial allegations of the com- plaint or petition are true^ and consists of facts not alleged therein which destroy the right of action^ and defeat a recovery. To sum up these conclusions, the classification of and distinction between defences at the common law depended upon the intrinsic, essen- tial nature of the causes of action and of the defences. The analogous classification and distinction between defences admis- sible under a denial, and those which are new matter, in the new procedure, depend primarily upon the structure of the complaint or petition, and the material averments of fact which it contains. All facts which directly tend to disprove any one or more of these averments may be offered under the general denial : all facts which do not thus directly tend to disprove some one or more of these averments, but tend to establish a defence independently of them, cannot be offered under the denial ; they are new mat- ter, and must be specially pleaded. I shall now apply these gen- eral principles to some particular instances. § 674. Third. Some Particidar Defences tvhich have been held Admissible under the Greneral Denial. I shall in this subdivision classify and discuss only those cases in which defences have been held admissible : those which have been pronounced inadmissible, for the reason that they fell within the denomination of "• new mat- ter," will be given in the next succeeding section.^ In an action by an attorney and counsellor to recover compensation for pro- fessional services, the complaint stating the retamer, the services and their value, and the answer being a general denial, the plain- tiff proved the services, and gave evidence showing their reason- able value. It was held that the defendant might, under his denial, show that the services were rendered upon a special agree- ment to the effect that the plaintiff would look to the recovery of costs from the adverse part}^ as his sole mode of compensation, and would make no personal claim against the defendant.^ And 1 For a summary of recent decisions, allegation of indebtedness, the plaintiff see the additions to the last note under had proved certain services rendered and §682. their value. It was surely competent for 2 Schermerhorn v. Van Allen, 18 Barb, the defendant, under a denial of such in- 29, per Parker J. : " The evidence was debtedness, to prove that he never in- improperly excluded. Under a general curred or owed the debt. He had a right 46 722 CIVIL REMEDIES. in a similar action under the same answer the defendant may prove the phiintiff's negligence and want of skill, by which the value of the services was diminished or destroyed.^ In general, in actions to recover compensation for work and labor upon a quantum meruit the defendants may, under the general denial, prove that the work was negligently or unskilfully done, and thus contest its value ;^ and may prove that the plaintiff had assigned and transferred the demand before suit brought, for this controverts the defendant's indebtedness to him.^ § 675. In actions for injuries to person or property alleged to have resulted from the defendant's negligence, he may prove under a general denial that the wrong was caused by the negli- gence of third persons not agents of the defendant, and for whom he M^as not responsible;^ or may prove contributory negligence of the plaintiff.^ In accordance with the principle of these de- cisions, the defence of non superior is always admissible under a general denial of complaints which allege the commission of in- juries by means of defendant's servants, employees, or agents. § 676. In an action upon a promissory note or other security, the defendant may under the general denial show an assignment of the thing in action to a third person before the suit was com- menced, since this directly controverts the averment of title in to prove that the services were rendered 294, 299. And in an action for goods sold as a gratuity, or that tlie plaintiff liimsclf and delivered, the defendant may show had fi.xed a less price for their value than that the plaintiff acted as agent for an- he claimed to recover. The services other person, whose name was disclosed, being proved, the defendant might show and who was the actual vendor. Merritt that they were rendered, not for him, hut v. Briggs, 57 N. Y. 651. on the credit of some other person, or ■• Schular v. Hudson Eiver R. R., 38 that the plaintiff himself undertook to run Barb. G53 ; Scliaus i'. Manhattan Gas- the risk of the litigation. It was not an Light Co., 14 Abb. Pr. n. s. 371 ; Jackson attempt to show an extinguishment of v. Feather River, &c.. Co., 14 Cal. 18; the indebtedness by payment, release, or Adams Ex. Co. v. Darnell, 31 Ind. 20. In otherwise; but it was an offer to show this case, proof that the goods were stolen that such indebtedness never existed, was admitted in an action against a cora- The defendant was at liberty to prove mon carrier. any circumstances tending to show that ^ Schaus v. Manhattan Gas Co., 14 he was never indebted at all, or that he Abb. Pr. x. 8. 371 ; New Haven, &c. Co. owed less than was claimed." v. Quintard, 6 Abb. Pr. n. s. 128 ; Indian- 1 Bridges t;. Paige, 13 Cal. 640, 641. apolis, &c. 11. R. v. Rutherford, 29 Ind. 82 ; 2 Raymond v. Richardson, 4 E. D. Jeffersonville, &c. R. R. !-. Dunlap, 29Ind. Smith, 171. But under a mere denial of 426 ; Hathaway v. Toledo, &c. R. R., 46 the value, the defendant cannot show that Ind. 25, 27. Tliis decision is placed upon the services were not rendered. Van the ground that in Indiana the plaintiff Dyke «. Maguire, 57 N. Y. 429. must allege and prove the absence of 3 Wetmore v. San Francisco, 44 Gal. negligence on his part. DEFENCES ADMITTED UNDER A DENIAL. 723 the plaintiff;^ and where the note is non-negotiable, a want of consideration may be shown.^ The general denial to a com- plaint in the ordinary form, for goods alleged to have been sold and delivered by the plaintiff, admits the defence that a third person who actually made the sale was himself the owner of the goods, and was not acting in the transaction as agent for the plaintiff; for this proof contradicts the allegation of a sale by the plaintiff: 3 and that the person who actually bought the goods in the name of the defendant was not the latter's agent, but that his prior authority had been revoked, and the plaintiff had been notified thereof; for this proof contradicts the allega- tion of a sale to the defendant.* § 677. In an action for the conversion of chattels, the com- j)laint of course averring property in the plaintiff, the general denial permits the defendant to show that the property is not in the plaintiff;^ as, for example, by proving that a third person is owner of the goods either by an absolute or qualified title.^ This latter proposition is, however, denied by some of the cases, Avhich hold that the defence of property in a third person, or in the 1 Andrews V. Bond, 16 Barb. 633. And see Wetniore i-. San Francisco, 44 Cal. 294, 299. Tlie exact contrary is lield in Brett V. First Univ. Soc., 63 Barb. 610, 618, per Leonard J. Tiie opinion in tliia case is, however, manifestly incorrect. Under the denial of " execution " in an action on a note or other written contract, the defendant may prove that his signa- ture was obtained by fraud, Corby v. Weddle, 57 Mo. 452, 459 ; or that the in- strument was not delivered, Fisher v. Hamilton, 48 Ind. 239. But see Dunning V. Rumbaugh, 36 Iowa, 566, 568. In an action upon an account stated for services, the defendant cannot, under the general denial, attack any of the items in tiie ac- count, Warner i'. Myrick, 16 Minn. 91. The defence of alteration cannot be sliown imder the general denial in an action upon a written contract, Boomer v. Koon, 6 N. Y. S. C. 645. This citation of Boomer V. Koon is an error. The opinion of Mul- lin J. reported in the volume cited as the prevaihng opinion is a dissenting opinion. The decision of the court is reported in 6 Hun, 645, and is exactly the opposite of that stated above ; it holds that the de- fence was odmissible. 2 Evans v. Williams, 60 Barb. 346; Bondurant ?;. Bladen, 19 Ind 160; But- ler V. Edgerton, 15 Ind. 15. But not when the consideration is presumed, as in a sealed instrument or negotiable paper, Dubois V. Hermance, 56 N. Y. 673, 674 ; Eldridge v. Mather, 2 N. Y. 157 ; Weaver I'. Barden, 49 N. Y. 286. 3 Hawkins v. Borland, 14 Cal. 413 ; and see Ferguson v. Ramsey, 41 Ind. 511, 513. * Hier v Grant, 47 N. Y. 278 ; and see Day V. Wamsloy, 33 Ind. 145, in which the defence was admitted that the goods were sold to defendant's wife, who had left him witliout cause, against his con- sent, and witliout Ins knowledge. ^ Robinson v. Frost, 14 Barb. 536. '> Davis V. Hoppook, 6 Duer, 254. He may show title in himself or in a third person. Sparks v. Heritage, 45 Ind. 66; Kennedy f. Shaw, 38 Ind. 474 ; Farmer V. Calvert, 44 Ind! 209, 212 ; Thompson V. Sweetser, 43 Ind. 312; Davis v. War- field, 38 Ind. 461. See also Jones v. Rahilly, 16 Minn. 320, 325. 724 CIVIL REMEDIES. defendant, must be specially pleaded. ^ Under a general denial in the same action, or a specific denial of tlie conversion, any facts may be proved in defence which go to show that there was no conversion ; as, for example, that the goods were lost without fault of the defendant,^ or were taken under an execution against the plaintiff.^ § 678. When the action is brought to recover possession of goods, the compUiint alleging title or right of possession in the plaintiff, the defendant may, under the general denial, introduce evidence to show that the plaintiff is not the owner nor entitled to possession of the chattels,^ but cannot show that the plain- tiff's title is fraudulent and void as against his creditors.^ Nor can the defendant in such action, when the record presents the same issue, justify as sheriff under process against A., and assert that the goods in controversy were the property of A. fraudu- lently transferred to the plaintiff: this defence is new matter, and must be pleaded,^ § 679. In an action to recover possession of land, if the com- plaint is in the usual form, merely averring that the plaintiff is owner in fee of the premises described and entitled to their pos- session, and that the defendant unlawfully withholds the same, the general denial admits proofs of anything that tends to defeat the title which the plaintiff attempts to establish on the trialJ 1 Dyson v. Ream, 9 Iowa, 51 ; Patter- Farmer v. Calvert, 44 Ind. 209, 212 ; son V. Clark, 20 Iowa, 429. The doctrine Tliompson v. Sweetser, 43 Ind. 312. of tliese cases is clearly opposed to the * Frisbee y. Langworthy, 11 Wis. 375. true theory of the general denial. ® Glazer v. Clift, 10 Cal. 303. 2 Willard V. Giles, 24 Wis. 319, 324. 7 Lain v. Shcpardson, 23 Wis. 224. ' McGrew v. Armstrong, 5 Kans. 284; 228, per Paine J. : " Under such a com- or that the goods were taken with the plaint, the plaintiff is allowed to show plaintiflf's consent, Wallace v. Kobb, 37 any title he can ; and, from the necessities Iowa, 192, 19o ; and the defendant in such of the case, the defendant, under a mere action may prove any facts in reduction of denial, must be allowed to prove anything damages ; as, for instance, that the maker tending to defeat the title which the plain- was insolvent in an action for the conver- tiff attempts to establish. He cannot be sion of a note made by a third person, and bound toallegespceific objections to a title owned by the plaintiff, Booth v. Powers, which the complaint does not disclose, 56 N. Y. 22, 27, 31, 33 ; Quin v. Lloyd, and which he may have no knowledge of 41 N. Y. 349. until it is revealed by the evidence at the * Caldwell V. Bruggerman, 4 Minn, trial." Mather v. Hutchinson, 25 Wis. 270; Woodworth v. Knowlton, 22 Cal. 27; Miles v. Lingerman, 24 Ind. 385; 164. In this case, defendant proved that Marshall v. Shafter, ."2 Cal. 176 ; the de- the 'goods were the property of a third fendant may prove title in himself, and person. See also Sparks v. Heritage, 45 an allegation to that effect in the answer Ind. 66 ; Kennedy v. Shaw, 38 Lid. 474 ; is not new matter ; Bruck v. Tucker, 42 DEFENCES ADMITTED UNDER A DENIAL. 725 In some States the defence of the Statute of Limitations may even be rehed upon in this action under a general denial ; ^ but cannot be in the other States, whose codes expressly require the statute to be pleaded.^ An equitable defence to the action must, however, as it seems, be specially pleaded ;^ and the defence that a deed to the plaintiff absolute on its face, under which he claims title, is only a mortgage.* § 680. In an action to recover damages for a malicious prose- cution, the complaint alleging malice and the want of a probable cause, the general denial puts these averments in issue, and admits any evidence going to show a want of malice and the existence of a probable cause ; as, for example, when the com- plaint charged that the defendant wrongfully procured the plain- tiff to be indicted, proof on the part of the defendant that he was a grand juror, and that all the acts complained of were done by him in that capacity, was held proper.^ The same principle must apply to all cases in which malice is an essential ingredient in the right of action, and is alleged in the complaint or petition : all facts tending to disprove the malice are clearly admissible under the denial. § 681. When the general denial is pleaded in an action to com- pel the specific performance of a contract to convey land, it is held in some cases that the defence of the Statute of Frauds ma,y be relied upon ; for the answer puts the existence of the contract in issue : ^ other cases, however, hold the contrary, and require the statute to be pleaded.^ And the Statute of Limitations may Cal. 346. 351 ; Bledsoe v. Simms, 53 Mo. be proved under the general denial, be- 305, 307. In several States, by virtue of cause it controverts tlie plaintiff's legal the statute, every defence, legal or equi- title. To this effect is Brown v. Freed, 43 table, may be proved under the general Ind. 253, 254-257, and cases cited, denial, Vanduyn v. Hepner, 45 Ind. 589, * Davenport v. Turpin, 43 Cal. 597; 591 ; Franklin v. Kelley, 2 Neb. 79, 113- Hughes v. Davis, 40 Cal. 117. 115 (fraud). ^ Ammerman v. Crosby, 26 Ind. 451; 1 Nelson v. Brodback, 44 Mo. 596; Hunter v. Mathis, 40 Ind. 356; Rost v. Bledsoe v. Simms, 53 Mo. .305,307. Harris, 12 Abb. Pr. 446 ; Radde v. Ruck- 2 Orton r. Noonan, 25 Wis. 672. A gaber, 3 Duer, 684 ; Simpson t-. McArthur, defence arising after the commencement 16 Abb. Pr. 302 (n.) ; Levy v. Brannan, of the action cannot be proved, but must 39 Cal. 485 ; Trogden v. Deckard,^45 Ind. be set up by a supplemental answer. 572; but see Scheer v. Keown, .34 Wis. McLane r. Bovee. 35 Wis. 27, 34. 349, an action for false arrest and im- 3 Stewart v. Hoag, 12 Ohio St. 623; prisonment. Lombard v. Cowham, 34 Wis. 486, 491. « Hook r. Turner, 22 Mo. 333; Wild- The court, in the last case, held that, when balin v. Robidoux. 11 Mo. 659. the deed under which the plaintiff claims ^ Livesey r. Livesey, 30 Ind. 398 ; Os- is fraudulent and void, that defence may borne v. Endicott, 6 Cal. 149. 726 CIVIL REMEDIES. be set up under a general denial in the same action, whenever it is not expressly required by the codes, as in certain States, to be pleaded.! § 682. When the complaint in an action upon a covenant of warranty, contained in a deed of land to the plaintiff, alleged the conveyance, the covenant, and a breach thereof by means of an outstanding paramount title and a recovery on the same, the general denial put all these averments in issue, and enabled the defendant to prove any facts going to show that there was no such paramount title. ^ In an action upon a judgment recovered in another State, the complaint set out the recovery of the judg- ment, and all the other allegations necessary to constitute the cause of action. The defendant pleaded (1) the general denial ; (2) that there was no such record ; (3) that the judgment was obtained without any notice given to the defendant, without ser- vice of process on him or appearance by him, he being all the time a non-resident of the State in which the judgment was recovered. All the matters alleged in these two special defences wei-e, it was held, embraced within the general denial, and could be proved under it : the defences themselves, according to the well-settled practice in Indiana, were struck out on motion, because they were equivalent to the general denial, and redun- dant.^ 1 Wiswell V. Tefft, 5 Kans. 263. because the defendant, having in his first 2 Rhode V. Green, 26 Ind. 83. In a paragrapii pleaded the general denial, creditor's suit to set aside the debtor's cannot be allowed in another paragraph fraudulent transfer of land, the grantee to plead what is in effect the same de- may prove, under the general denial, that fence." The following recent cases show the land was a homestead, for this rebuts what defences have or have not been ad- the alleged fraud charged by the plain- mitted uniler the general denial in vari- tiff, Ilibben v. Soyer, 33 Wis. 319, 322 ; ious actions. Some of these decisions also any facts showing absence of fraud, can hardlj' be reconciled with the well- Sunomers v. Hoover, 42 Ind. 153, 156. settled doctrine concerning the office of 3 Westcott 1'. Brown, 13 Ind. 83. the general denial, especially some cases Davison J., after saying that the second dealing with the actions for the recovery defence was equivalent to nul tiel record, of land, and of chattels, ejectment and proceeded- " The code points out no such replevin. In actions for conversion. On- distinctive plea, but, in lieu of the general tario Bk. v. N. J. Steamboat Co., 59 N. Y. issue as it stood at the common law, sim- 510; McClelland v Nichols, 24 Minn, ply authorizes a general or specific de- 170; Moulton v. Thompson, 26 id. 120; nial. Here the defence in que.stion con- Smith v. Hall, G7 N. Y. 48; in nclions of iroverts the entire cause of action, and ejecttnent, Tracy v. Kelly, 52 Ind. 535; therefore amounts to a full denial of Freeman u. Sprague, 82 N. C. 346 ; Powers the complaint; and if, as such denial, it v. Armstrong, 35 Ohio St. 357; Pliiliippi stood alone, it might be sustained. But v. Thompson, 8 Oreg. 428; Freser v. in this instance it is not well pleaded, Charleston, 11 S. C. 486; Weeks i;. DEFENCES ADMITTED UNDER A DENIAL. 727 X. Some Special Statutory Rules. § 683. This discussion will be ended by a brief reference to some special statutory rules, prescribing the effect and operation of denials in certain cases, which have been adopted in various States. These rules do not belong to the general theory of pleading embodied in the new system ; they rather break the symmetry of that theory ; but as they are practically important, they cannot be passed by without notice. In New York, a stat- ute, general in its terms, requires the corporate existence of the plaintiff in an action by a corporation to be specifically denied if at all in the answer, and the fact of its existence is not put in issue by the general denial ; ^ but this provision, it is held, applies only to domestic corporations, so that a foreign corporation when suing must establish its existence when the game is traversed by a general denial.^ In Indiana a sworn answer is made necessary to put in issue the legal existence of alleged corporations in actions brought by them ; but a general denial verified complies with this statutory requirement, and compels the plaintiff to prove its corporate character.^ In Wisconsin, an answer denying Smith, 18 Kans. 508; Clayton v. School in adion/orneif/i'gence, Jones r. Sheboygan, Dist., 20 id. 206 ; Emily v. Harding, 53 &c. R. R., 42 Wis. 307 ; defence of accord Ind. 102 ; Steeple v. Downing, 60 id. 368 ; and satisfaction, Looby v. West Troy, 24 Webster v. Bebinger, 70 id. 9 ; Over v. Hun, 78 ; in action for a divorce, defences Sliannon, 75 id. 352 ; in actions of replevin, in abatement and the statute of limita- Branch v. Wiseman, 51 Ind. 1 ; Wilier v. tions, Dutcher i'. Dutcher, 39 Wis. 651, V. Manby, 51 id. 169 ; Stowell v. Otis, 71 and numerous cases cited. N. Y. 36 ; Staubach v. Kufford, 2 Mont. i 2 R. S. 457, 458, § 3. 565; Creighton v. Newton, 5 Neb. 100; 2 Waterville Man. Co. v. Bryan, 14 Riciiardson r. Steele, 9 id. 483 ; Bailey ;;. Barb. 182. Bayne, 20 Kans. 657 ; in aclions on promis- 3 Chance v. Indianapolis, &c. Road Co., sorij notes, Casad v. Holdridge, 50 Ind. 32 Ind. 472. disapproving a contrary doc- 529 (illegality of consideration cannot be trine in Cicero, &c. Co. v. Craighead, 28 shown) ; Scliwarz v. Oppold, 74 N. Y. Ind. 274, and approving West v. Craw- 307 (alteration may be shown); in con- fordsville, &c. Co., 19 Ind. 242 ; Williams tract for materials, Si~c., Kea-ch r. Decker, 5 v. Franklin, «&c. Assoc, 20 Ind. 310; Hun, 646; contract for services, Blizzard v. Adams Ex. Co. jj. Hill, 43 Ind. 157; In- Applegate, 61 Imi.mS ; for rent on a lease, dianapolis F. & M. Co. v. Herkimer, 46 Mack V. Burt, 5 Hun, 28 ; on an oral con- Ind. 142, 144. A similar statute in Wis- tracl. Bush v. Brown, 49 Ind. 573; to re- consin, it is held, applies to both foreign scind a contract for fraud, Dalrymple v. and domestic corporations, R. S. ch. 148, Hunt, 5 Hun, 111 ; to recover a deficiency §§ 3, 11 ; Williams Mower, &c. Co. v. on a mortgage foreclosure, Scofield t'. Dor- Smith, 33 Wis. 530; Central Bank w. chen, 72 N. Y. 491, 495, 496; for dam- Knowlton, 12 Wis. 624. ages, Wandell v. Edward, 25 Hun, 498 ; 728 CIVIL EEMEDIES. the partnership of the plaintiffs in an action by a firm must be verified, or it forms no issue. An unverified denial, therefore, either general or specific, admits the partnership as averred.^ § 684. In Indiana, in actions upon written instruments against the original parties, makers, indorsers, acceptors, obligors, and the like, an unsworn general denial puts in issue only the existence of the writing, and requires its production ; but does not put in issue its execution, and therefore admits no evidence tending to dispute the signature of the defendant or any other facts in- cluded within the execution. If verified, the denial puts in issue both the execution and the existence.^ The rule is differ- ent, however, in actions against the executors or administrators of deceased parties to written instruments : the unverified gen- eral denial pleaded by them raises a complete issue.^ An un- verified general denial also admits the plaintiff's legal capacity to sue in Indiana.^ A statute of Iowa enacts that, in actions or defences on written instruments, " the signature or indorsement thereto shall be deemed genuine and admitted, unless the party whose signature it purports to be shall deny the same under oath in the pleading." In an action upon a promissory note against the maker, the defendant pleaded an unverified general denial, and under it insisted as a defence that he did not sign the writ- ing as a note, but executed it with the supposition that it was a simple receipt. This defence being objected to as inadmissible, the court held that the statute referred only to the genuineness of the signature, and did not prohibit the defendant from showing that he did not execute such a contract as the one in suit, but executed an entirel}^ different instrument, for example, a receipt, and that the same had been altered into a note.^ In another case upon a note the petition set it out in hcec verba, averring that it was executed by the defendant. The answer was verified, but simply denied knowledge or information sufficient to form a belief whether the allegations of the petition were true. This 1 Statute of 1858, ch. 137, § 98 ; Fisk Intl. 44 ; Riser v. Snoddy, 7 Ind. 442 ; V. Tank, 12 Wis. 276, 301 ; Martin v. Ma lion's Administrator v. Sawyer, 18 Am. Ex. Co., 19 Wis. 336. Ind. 73. 2 2 R. S., p. 44, § 80; Stebbins v. * Downs v. McCombs, 16 Ind. 211; Goldtbwaite, 31 Ind. 150 ; Evans v. Soutli- Jones v. Cin. Typo Foundry, 14 Ind. 8!) ; ern Turnp. Co., 18 Ind. 101 ; Price v. Iluaston ?;. Cincinnati. &c. R. R., 16 Ind. Grand Rapids, &c. R. R., 18 Ind. 137 ; 275; Harrison v. Martinsville, &c. R. R., Hicks v. Keigle, 32 Ind. 360. 16 Ind. 505. 8 Cawood's Adniinibtrator v. Lee, 32 ^ Lake v. Cruikshank, 31 Iowa, 395. DEFENCE OF NEW MATTER. 729 form of verified denial, it was held, did not comply with the requirements of the statute in question, and raised no issue in respect of the signature.^ § 685. The general denial, at least when verified, cannot be struck out as sham on motion. In accordance with the settled rule of the former procedure, the general issue could not be struck out for such cause ; and in this respect the general denial is its equivalent. " It gives the defendant the same right to re- quire the plaintiff to establish by proof all the material facts necessary to show his right to a recovery as was given by that plea [the general issue]." 2 The same rule applies to a denial, general in form, of certain specified allegations constituting a part of the complaint, and is applicable as well to equitable as to legal actions,^ and to all partial denials,* and is not restricted to those which are verified.^ SECTION FOURTH. THE DEFENCE OF NEW MATTER. § 686. Much of what might properly be included in this sec- tion has already been necessarily dwelt upon in discussing the de- fence of denials. The two subjects so correlate and support each other, that the one cannot be explained in full without, to some extent, explaining the other also. I shall not repeat the propo- sitions and definitions given in the last section, but shall content myself with adding examples and illustrations drawn from de- cided cases. The subject-matter of this section will be distrib- uted into three subdivisions: I. How defences of new matter should be pleaded ; II. What is new mat*^er in general, with a 1 Hall I', ^tna Man. Co., 30 Iowa, 215, 238 , Preston v. Roberts, 12 Bush, 570 ; 217, 218. See Lyon v. Bunn, 6 Iowa, 48, Ranson v. Anderson, 9 S. C. 438 ; Sully for a construction of a prior statute v. Goldsmith, 49 Iowa, 690. somewhat different in its language from ^ Wayland v. Tysen, 45 N. Y. 281, the one quoted in the text. See also State 282. See also Grocers' Bank v. O'Rorke, V. Cliamberlin, 54 Mo. 338, that in actions 6 Hun, 18. upon written instruments the denial of ^ Thompson v. Erie R. R., 45 N. Y. their execution must be under oath in 468, 472. Missouri. See also Ewen v. Chicago, &c. * Ciaflin v. Jaroslauski, 64 Barb. 468. R. R., 38 Wis. 64 ; Sanford v. McCreedy, 5 Brooks v. Chilton, 6 Cal. 640. 28 id. 103; Wittman v. Watry, 37 id. 730 CIVIL REMEDIES. particular reference to defences in mitigation and those in abate- ment ; and, III. Some particular examples of new matter classi- fied and arranged. I. How Defences of New Matter should he pleaded. § 687. A denial when properly pleaded does not state any facts ; it simply denies facts.^ A defence of new matter, on the other hand, does not deny any facts ; it assumes the averments of the complaint or petition to be true ; and under the ancient system a plea of confession and avoidance xau^t give color to these averments, or it would be fatally defective. The "giving color" was simply the absence of any denials, and the express or silent admission that the declaration, as far as it went, told the truth.^ The defence of new matter consists, therefore, of facts, — positive facts ; and these should be averred as carefully and with as much detail as the facts which constitute the cause of action and are alleged in the complaint. The defence of new matter depends upon the existence of facts from which it results as truly as the cause of action results from other facts. The rule for setting forth the facts which constitute the defence is, therefore, the same as that for setting forth the facts which constitute the cause of action. In each case, all the material, issuable facts which make up the cause of action or the defence must be averred, while the detail of mere evidentiary matter should properly be left to be used as proofs at the trial. I need not further enlarge upon this proposition, but will illustrate it by a few judicial decisions. Thus it is a settled rule that, when fraud is relied upon as a defence, a general allegation charging fraud or a fraudulent in- tent will not suffice : all the facts which the law requires as the elements of fraud, and all which are claimed to be the constituents of the fraud in the particular case, must be averred ; and their absence may destroy the intended effect of the pleading, and shut out all evidence in its support at the trial.^ ^ See Town of Venice v. Breed, G5 must contain no denial ; such denial Barb. 597, 603, per Mulliii J., for a state- should be pleaded in a separate defence, mentoftlie comparative effects of denials if at all. Morgan i*. Hawkeye Ins. Co., 37 and of new matter in raising issues. Iowa, 359; Anson v. Dwiglit, 18 Iowa, 2 Under the new procedure, in every 241. This is nothing more than the sim- defence of new matter there should be, pie rule that two distinct defences should eitlier expressly or by implication, a con- not be mingled together, fession that, but for such new matter, the ' Jenkins ;;. Long, 19 Ind. 28, 29, per action could be maintained ; the defence Frazer J. : " At the common law, fraud DEFENCE OF NEW MATTER. 731 § 688. Akin to the defence of fraud is that of duress : the facts constituting the duress must be stated, and a mere general aver- ment will not sufiSce ; as, for example, in a suit to foreclose a mortgage given by a married woman upon her own land, a de- fence that " she was induced by the coercion of her said husband to execute the said mortgage." ^ A defence of justification in an action for trespasses and other torts must by appropriate aver- ments identify the wrongs complained of with the acts described in the answer and justified, or else it will fail of its purpose and be worthless.^ In Indiana, the defence of a former recovery for the same cause of action between the same parties must set out the record of such former suit, or it will be insufficient and bad on demurrer.^ The following are some further illustrations of the general rule : A defence of jettison by a common carrier on the water should allege all the facts showing the jettison to have could be given in evidenee under the gen- eral issue, or under a general plea of fraud. But, under the code, fraud must be specially pleaded ; and the answer of fraud must contain all the elements necessary to be proved to make out the fraud : and theseare, that the representation must go to a material fact ; must be made under such circumstances that the party had a right to rely on it; and it must be false to a material extent." Keller v. Johnson, 11 Ind. 337. In an action on notes, a de- fence " that he was induced to execute the notes mentioned by the fraud, covin, and deceit of tiie," &c., was held bad on demurrer. Capuro v. Builders's Ins. Co., 30 Cal. 123 ; Oroville, &c. R. R. v. Super- visors, &c., 37 Cal. 3-54 ; Kent v. Snyder, 30 Cal. 666 ; Fankboner v. Fankboner, 20 Ind. 62 ; Ham v. Greve, 34 Ind. 18, 21. a defence " that his signature was ob- tained by the fraud of the plaintiff," with- out stating any circumstances, was held a nullity. Hale v. Walker, 31 Iowa, 344, 355, a defence which simply stated that the contract in suit " was either false or fraudulently so written or so done by mistake," admitted no proof of fraud. " In order to admit evidence of fraud, there should, under our system of plead- ing, be at least a general statement of the facts constituting the fraud." Lefler v. Field, 52 N. Y. 621, action for the price of barley bargained and sold; answer, that the barley was bargained for by defend- ant's agent ; that he contracted to buy plaintiff's barley, provided it was mer- cliantabie ; that plaintiff represented it good, first quality, and mercliantable ; that tiie agent relied on sucii representa- tions ; that the barley was not mercliant- able, which fact was known to the plaintiff. Although the plaintiff" went to trial on this answer without prior objec- tion, the Court of Appeals held it was worthless, since it omitted two essential elements of the fraud, — (1) the plaintiff 's intent to deceive, and (2) that defendants were in fact deceived. See also Cum- mings V. Thompson, 18 Minn. 246, 256, in which the rule is given as follows : " A general statement of tlie matters of fact constituting the fraud is all that is re- quired : it is not necessary to charge minutely al! the circumstances which may conduce to prove the general charge." Dubois V. Hermance, 56 N. Y. 673, 674; Joest V. Williams, 42 Ind. 505, 568 ; Curry V. Keyser, 30 Ind. 214 ; Leighton v. Grant, 20 Minn. 34-5, 354. 1 Richardson v. Hittle, 31 Ind. 119; Conn. Life Ins. Co. v. McCormick, 45 Cal. 580. 2 Gallimore v. Ammerman, 39 Ind. 323 ; Isley v. Huber, 45 Ind. 421 ; Boaz v. Tate, 43 Ind. 60, 71. 3 Norris v. Amos, 15 Ind. 365; 2 R. S., p. 44, § 78. 732 CIVIL REMEDIES. been necessary;^ a defence of usury must narrate all the par- ticulars of the agreement and transaction ; ^ a defence of long- continued user or prescription should aver that the possession or user by the defendant was adverse ; ^ and the defence that the plaintiff is not the real party in interest must state all the facts which show that legal conclusion."* § 689. When the defendant sets out new matter which he re- lies upon, not as defensive merely, but as the basis of affirmative relief, either in the form of a strictly legal counter-claim or of an equitable cross-demand, he becomes in truth an actor pro tanto : his answer is to that extent equivalent to a cause of action asserted in a complaint or petition, and is to be governed by the same rules. It must aver all the material, issuable facts consti- tuting the right of action in his favor, and must demand the relief legal or equitable which is sought to be obtained from the plaintiff.^ The foregoing cases are given as illustrations and examples of the general doctrine, and not as exhaustive of its scope and application. The rule applies to all defences of new matter. The material, issuable facts which constitute tlie defence must be averred, so that its sufficiency in law may fully appear on the record : the facts themselves, and not the legal conclusions from assumed facts, are to be stated.^ 1 Eentley v. Bustard, 16 B. Mon. 643. 2 Manning v. Tyler, 21 N. Y. 567,568, and cases cited ; Gaston i-. McLeran, 3 Oreg. 380. 3 Wliite V. Spencer, 14 N. Y. 247. * Raymond v. Pritcliard, 24 Ind. 318, and cases cited ; Heretli v. Smitli, 33 Ind. 514, and cases cited ; Sliafer v. Bronen- berg, 42 Ind. 89, 90. The following recent cases give additional illustrations of tlie text, and of various defences held to have been properl}' or improperly pleaded : Becker v. Boon, 61 N. Y. 317 (tender) ; Manufac. Nat. Bank v. Russell, 6 Ilun, 375 (mistake) ; Bush v. Brown, 49 Ind. 573 (want of consideration and duress) ; Zeidler v. Johnson, 35 Wis. 385 (statute of limitations, hypothetical) ; Van Trott v. Wiesse, 36 id. 439 (fraud) ; Freeman v. Engleman Tran. Co., 3G id. 571 (contributory negligence) ; Klais v. Tulford, 36 id. 587 (justification by pub- lic offiocrs) ; Staley r. Ivory, 65 Mo. 74 (failure of consideration) ; Foy i;. Haugh- ton, 83 N. C. 467 (fraud) ; Ilendrix i;. Gore, 8 Oreg. 406 (payment) ; Wallace V. Lark, 12 S. C. 576 (illegality) ; Ken- dig V. Marble, 55 Iowa, 386 (fraud) ; Clayes v. Hooker, 4 Hun, 231 (usury); Lord ;;. Lindsay, 18 Hun, 489 (duress) Jones V. Frost, 51 Ind. 69 (fraud) ; Young I'. Pickens, 49 id. 23 (title) ; Mahoney i'. Robins, 49 id. 146 (fraud and failure of title) ; Van Wy v. Clark, 50 id. 259 (fraud) ; Jones v. Shaw, 67 Mo. 667 ; Keini, &c. Co. i'. Avery, 7 Neb. 54 ; Sar- gent V. R. R. Co., 32 Oiiio St. 449 ; Stow- ell V. Otis, 71 N. Y. 36; McKissen v. Sherman, 51 Wis. 303; when the defend- ant must or need not negative the excep- tions in a statute on which liis defence is based, see Harris r. White. 81 N. Y. 532, 646 ; Clark v. Clark, 5 Hun, 340; Flem- ing V. People, 27 N. Y. 329. ^ Rose v. Tread way, 4 Nev. 455 ; Hook ?'. Craighead, 32 Mo. 405; Wliite r. Allen, 8 Oreg. 103. *> Northrup v. Miss. Valley Ins. Co., 47 GENERAL NATURE OP NEW MATTER. 733 II. The General Nature of New Matter; Defences in Mitigation of Damages, and in Abatement. § 690. The cases quoted from in the preceding section to show the judicial definition of the general denial exhibit also the in- terpretation put by the courts upon the term '■' new matter ; " and the decisions which will be cited in the next subdivision of this section will show how that interpretation has been applied in a great variety of particular instances. It would be a needless labor to repeat the extracts referred to, or the general discussion of the nature and properties of new matter. It is elementary that a defence of new matter should be pleaded ; and as new matter must of necessity be a distinct defence from a denial, it follows that it cannot properly be associated or mingled up with denials general or specific in one paragraph or plea. For the same reason, each defence of new matter must necessarily be complete and single, as much so as each cause of action, and should be separately stated in a plea by itself. This subject will be treated of at large in a subsequent section. § 691. The overwhelming weight of judicial opinion has with almost complete unanimity agreed upon the principle which dis- tinguishes denials from new matter, and determines the office and function of each. The general denial puts in issue all the material averments of the complaint or petition, and permits the defendant to prove any and all facts which tend to negative those averments or some one or more of them. Whatever fact, if proved, would not thus tend to contradict some allegation of the plaintiff's first pleading, but would tend to establish some cir- cumstance, transaction, or conclusion of fact, not inconsistent with the truth of all those allegations, is new matter.^ It is said to be " new," because it is not embraced within the statements Mo. 435, 443, per Wagner J. ; State v. ^ The following recent decisions illus- Cent. Pac. R. R., 9 Nev. 79, 87 (pay- trate the text : Roe u. Angevine, 7 Hun, ment) ; Pease v. Hannah, 3 Oreg. 301, 679; Read v. Decker, 5 id. 646: Doiig- (defence in action to recover land) ; Heas- las v. Haberstro, 25 id. 262; Saunders ton V. Cincinnati, &c. R. R., 16 Ind. 275. r. Chamberlain, 13 id. 668; Allen v. But it was held in Hunter v. McLaughlin, Saunders, 6 Neb. 436 ; Burlington, &c. R. 43 Ind. 38, 45, that the following was a R. v. Board of Comm'rs, 7 id. 33 ; Swen- sufficient averment of a want of considera- son v. Cresop, 28 Ohio St. 668. tion ; that the notes " were given without any consideration whatever." 734 CIVIL REMEDIES. of fact made by the plaintiff; it exists outside of the narrative which he has given ; and proving it to be true does not disprove a single averment of fact in the comphiint or petition, but merely prevents or destroys the legal conclusion as to the plaintiff's rights and the defendant's duties which would otherwise have resulted from all those averments admitted or proved to be true. Such is the nature of the new matter which cannot be presented by means of a denial, but must be specially pleaded, so that the plaintiff may be informed of its existence and of the use to be made of it by the defendant. Whether it is "new" in the sense described must of necessity depend, and depend alone, upon the nature, extent, and variety of the material allegations which the plaintiff inserts in his pleading. I shall not repeat the observa- tions upon this point contained in the preceding section, and simpl}' remark that the plaintiff may, by making unnecessary although material averments in his complaint or petition, greatly enlarge the scope of the general denial, and prevent those de- fensive facts from being in his case new matter, which in another case, and from the operation of a more scientific and correct mode of pleading, would clearl}' be new matter. The criterion under the code system is not, therefore, in every case, the intrinsic, essential nature of the defence itself proposed by the defendant : it is to be found rather in the frame of the complaint or petition, in the material statements of fact made by the plaintiff therein. It cannot then be said, for example, that "payment" is always new matter; for the plaintiff may so construct his complaint that facts showing payment will be directly contradictory of a material averment embraced within it, and therefore plainly admissible under the general denial. It is impossible for this reason to col- lect, arrange, and classify a mass of different defences, and say of them, as could be said under the old system, that tliey are all necessarily by way of confession and avoidance, and therefore all of necessity " new matter." § 692. It follows from the foregoing discussion, that consider- ing the office and function of the general denial, and the distinc- tion between it and new matter, the latter confesses and avoids all the material allegations of the complaint or jyetition; that is, it admits all the material facts averred therein, and avoids their legal result by means of the additional facts which are relied upon as constituting the defence. A particular defence may DEFENCES IN MITIGATION. 735 therefore, when set up in answer to one complaint, be new mat- ter, and require to be pleaded : the same kind of defence, when set up in answer to another complaint, may not be new matter, but may be proved under the general denial without being specially pleaded. Undoubtedly the defence of payment in its various phases is the one which most frequently assumes this double aspect ; but the principle plainly applies to other defences, and is general. This description of new matter and the discus- sion of its nature will be so fully illustrated by the cases to be cited in the following subdivision of the present section, that none need now be quoted in support of the foregoing positions. There are, however, two special classes of defences, which, though embraced under the denomination of new matter, are so peculiar, and so radically different from all others of that name, that they require a separate mention, — defences in mitigation of damages, and defences in abatement. § G93. Defences in Mitigation of Damages. The theory of the common law in respect of full and partial defences has already been stated.^ Each defence in bar by way of confession and avoidance must have been a complete answer to the whole cause of action. Facts which fell short of that result, but which con- stituted a partial answer, were not regarded as true " defences." As they did not defeat a recovery, but always allowed a judg- ment for at least nominal damages, the severe logic of the system did not suffer them to be pleaded separately in the form of a bar. This logic demanded a perfect issue upon the record, — an asser- tion on the one side, and a complete denial thereof on the other, — or else the record admitted the plaintiff's right to recover. If the defendant should plead facts which constituted a partial de- fence merely, there would be no issue, and the common-law devotion to logical /orwzs could not admit such a violation of its theory. As the partial defences, if pleaded, would raise no issue, the rule was adopted that they should not be pleaded, but that the general issue should be interposed, and the facts consti- tuting them should be given in evidence under that answer. Matters in mitigation are partial defences, and it became the settled doctrine of the former procedure that they were to be proved under the general issue. Mitigating circumstances were not confined to actions for torts, to " trespass," '* case," or 1 See supra, §§ 607, 608. 736 CIVIL REMEDIES. " trover : " they were possible and proper as well in actions upon contract, in " covenant " and " assumpsit." Part payment was of course such a circumstance ; and even full payment might be proved in mitigation, reducing the plaintiff's recovery to nominal damages.^ § 694. The common-law logic does not control the forms of pleading and of the issues under the present system. The notion of a partial defence on the record of an answer which does not go to the whole cause of action, is neither opposed to the spirit nor to the letter of the codes ; on the contrary, it is in full har- mony with the spirit, and seems to be demanded by the letter. The obvious intent of the system — the central conception — is not an observance of logical forms, but that the facts which con- stitute the plaintiff's cause of action, and the defendant's resistance thereto, shall be stated in a plain and concise manner, in ordinary language, without reference to any technical require- ments of form or theory. The very primary design of the pro- cedure is that the truth as it is between the parties must be first alleged, and then proved. The letter carries out this spirit, because it requires that the answer onust contain (1) the denials, and (2) a statement of ani/ new matter constituting a defence and that the defendant may set forth as many defences as he shall have. No other clauses of the statute limit this general language, or restrict it to entire defences. From the nature of the case, when a complaint or petition is in an ordinary form, con- taining only the averments necessary to state the cause of action, facts in mitigation of damages must be new matter rather than denials. It follows that the fair and obvious interpretation of the codes not only permits but requires that this class of defences, when they are new matter, should be pleaded. It is clearly contrary to the entire theory of the system that ani/ new matter, however incomplete may be its effect upon the plaintiff's recovery, should be proved under a denial: there is not the slightest warrant for such a use to be made of the general de- nial, whatever may have been the function of the general issue in this respect. In interpreting the language of the codes, all the common-law notions as to the impossibility of pleading par- 1 For a full statement of these com- ion of Selden J. in McKyring v. Bull, 16 mon-law doctrines, and tlicir practical N. Y. 804, supra, §§ G58, 659. effect on the trial of causes, see the opin- DEFENCES IN MITIGATION. 737 tial defences should be wholly rejected ; for they were based upon reasons purely technical and arbitrary, — mere formulas of verbal logic without any real meaning. The statute should be construed in its own spirit as an independent creation, and not in the light of ancient dogmas which it was designed to supersede. I need not collate and compare the various provisions of the code bear- ing upon the question in order to establish the textual interpre- tation. Nothing can be added to the demonstration which Mr. Justice Selden has worked out in the opinion already mentioned and quoted at length in the preceding section, and that opinion has not been and cannot be answered.^ § 695. On principle, then, all defences in mitigation of dam- ages, when the}' consist of new matter, should be pleaded, and cannot be proved, under the general denial. How does the ques- tion stand upon authority? It is, of course, put at rest in New York by the decision of the tribunal of last resort in McKyring V. Bull.^ The ratio decidendi of that case is universal in its application : it is not confined to the defence of payment ; the argument embraces all instances of mitigation, for it is not based upon the particular nature of any defence, but upon an interpre- tation of the language used by the legislature. This decision has been followed by other courts and in other States, but the cases are not unanimous : in some, the ancient common-law dog- mas have been appealed to and accepted as controlling. I will collect the more important of these adjudications. A defence in mitigation having been pleaded to an action for false arrest and imprisonment, the Supreme Court of New York, in denying a motion to strike out the answer, said : " It has been held in sev- eral cases that mitigating circumstances in actions of this nature may be proved without being set up, if admissible in evidence at all. Whatever weight may be given to these authorities, I am inclined to think that the case of Foland v. Johnson,^ which was decided by the general term of this district, settles the question in favor of the doctrine that mitigating circumstances may be set up by way of answer in a case like the present one."^ In Foland » McKyring i'. Bull, 16 N. Y. 804. 2 Poland v. Johnson, 16 Abb. Pr. 235, See supra, §§ 058, 659. See also Wil- 239. bour V. Hill, 72 N. Y. 36, 38 ; Spooner v. ^ Beckett v. Lawrence, 7 Abb. Pr. n. s. Keeler, 51 id. 527 ; Wachter v. Quenzer, 403, 405. 29 id. 547. Confipare Wandell v. Edwards, 25 Hun, 498 ; Jauch v. Jauch, 50 Ind. 135. 47 738 CIVIL REMEDIES. V. Johnson,^ which was an action for assault and battery and false imprisonment, it was held that a separate defence in miti- gation was proper. McKyring v. Bull was distinctly recog- nized as overruling previous cases, and as laying down the universal rule of interpretation for all causes of action and defences. It had been said in several early New York cases that matter in mitigation cannot be pleaded, but must be proved under a general denial : these decisions were all pronounced before that made in McKyring v. Bull, and must therefore be considered as overruled.^ There is a dictum in Travis v. Barger,^ to the effect that circumstances in mitigation may be proved under the gen- eral denial ; but the facts did not call for any decision. The proposition was stated by the judge arguendo, and the opinion itself was prior to the announcement of the contrary doctrine by the Court of Appeals. § 696. In Indiana the common-law dosfma is still adhered to. 1 Poland V. Johnson, 16 Abb. Pr. 235, 239. 2 Saltus ('. Kip, 5 Duer, 646 (Sp. Term); Kneefller v. Sternbergli, 10 How. Pr. 67 (Sp. Term); Dunlap v. Snyder, 17, Barb. 561; Anonymous, 8 How. Pr. 434 (Sp. Term) ; Gilbert v. Rounds, 14 How. Pr. 46 ; Lane v. Gilbert, 9 How. Pr. 150. 3 Travis v. Barger, 24 Barb. 614, 623, per Birdseye J. Tliere are New York cases, however, subsequent to McKyring V. Bull, which utterly disregard it, and might be considered as overruling it, were it possible for a lower court, and a single judge quoting himself as authority, to overrule the decisions of a higher tri- bunal. In Harter v. Grill, 33 Barb. 283, per Morgan J., which was an action for crim- inal conversation, it was held that facts in mitigation could be proved under the general denial. McKyring v. Bull was mentioned, and its authority was denied because tlie mitigating circumstances did not constitute a defence. It was said that the section requiring new matter to be pleaded (§ 149 of the New York code) includes only those cases in which the facts to be alleged amount to a comf)lete defence. In short, the entire argument, the whole course of reasoning approved by the court of last resort, was disregarded. No analysis or comparison of other sec- tions and passages bearing upon the ques- tion was made : the results reached by the Court of Appeals, after a most careful examination of the text of the statute aided by the light of experience, were overturned by a bare assertion. Finally, in Tompkins v. Wadley, 3 N. Y. S. C. 424, 430, per Morgan J., whicli was an action lor tlie breacli of a promise to marry, evi- dence in mitigation was held adn)issible under the general denial. The same judge again delivered the opinion, and cited Harter v. Grill, Travis v. Barger, 24 Barb. 614, 623, and Kniffen v. McGonnell, 30 N. Y. 290, in support of his position, McKyring v. Bull not being mentioned. The two former cases have already been commented upon. In the head-note of Kniffen v. McGonnell, the reporter states that "it seems matter in mitigation may be proved under the general denial ; " but there is nothing in the opinion of the court which furnishes the slightest warrant for even that guarded statement. The doc- trine of the text is therelore fidly sus- tained by judicial authority in New York. The two opinions of Mr. Justice Morgan can hardly be regarded as overturning the judgment pronounced by the tribunal of final resort ; and the argument of Mr. Justice Selden is certainly unanswered and unanswerable on principle. Sec, however, O'Brien v. McGunn, 58 N. Y. 373, 376. DEFENCES IN MITIGATION. 739 The rule as stated by the Supreme Court of that State is, that "matter in mitigation only cannot be specially pleaded or set up by way of answer, but may be given in evidence under the gen- eral denial. We know of no authority, either at common law or by statute, allowing matters in mitigation only, except in actions for libel and slander, to be specially pleaded or set up in the answer." ^ In Kentucky it would seem that a partial defence in mitigation should be pleaded.^ The codes expressly authorize mitigating circumstances to be pleaded in actions for libel or slander. § 697. Defences in Abatement. At the common law, all pleas were divided into two general classes, — those " in bar " and those " in abatement." " Whenever the subject-matter of the defence is, that the plaintiff cannot maintain any action at any time, whether present or future, in respect of the supposed cause of action, it may and usually must be pleaded in bar; but matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should in general be pleaded in abatement.''^ ^ The most common defences in the present system analogous to the ancient pleas in abatement are those which setup want of jurisdiction in the court, or a present want of legal capacity in the plaintiff to sue, or a defect of par- ties, or the pendency of another action. There was a marked difference between these two classes of pleas at the common law, and certain special rules regulating the use of those in abatement. Among these rules, the following were important. A plea in abate- ment could not be joined with one in bar in answer to the same subject-matter ; but the former must be pleaded by way of intro- duction, and must be disposed of before a plea in bar could be interposed. As a consequence, the pleading a defence in bar waived all defences in abatement to the same matter. The judgments rendered upon the two classes of pleas were different : for the one simply dismissed that suit, and did not prevent the plaintiff from commencing another ; while the other ended the judicial controvers}' in respect to the subject-matter involved. ' Smith V. Lisher, 23 Ind. 500, 502, per for libel or slander, and cannot be proved Elliott J. ; and see Allis v- Nanson, 41 under a general denial. Langton v. Ilag- Ind. 154, 157, 158, per Worden J. erty, 35 Wis. 150, 161, 162; Wilson r. 2 Hackett v. Scliad, 3 Bush, 353, 355, Noonan, 35 Wis. 321, 348, 349. See per Robertson, J. Mitigating facts and Desmond v. Brown, 33 Iowa, 13. circumstances must be pleaded in actions ^ 1 Ch. PI. 44G. 740 CIVIL REMEDIES. § 698. There are in the new procedure no such divisions and classes. Defences still exist of the same essential nature as those which were formerly set up by means of a plea in abatement, and a judgment thereon in favor of the defendant does not for ever bar the plaintiff from the further prosecution of his demand. Thej^ are governed, however, by the same rules of procedure that regulate all the other defences which may be relied upon by a defendant. There is no difference in the methods of pleading them, of trying them, or of adjudicating upon them : the only difference is in respect to the conclusive effects of the judgments rendered upon them. In other words, so far as concerns the manner of alleging and of trial, all distinctions between these two classes of defences have been abolished, and both have been placed in the same category.^ All defences which are analogous to the ancient pleas in abatement — that is, all which are based upon the same facts — are evidently new matter: they cannot be proved under the general denial, but must be specially pleaded. III. Some Particular Defences of New Matter classified and arranged. § 699. In all the following examples in which it has been held that the defences are new matter, it must be under- stood that the complaints or petitions were in the proper form, containing the allegations necessary to constitute the causes of action, and no more. When the plaintiff's pleadings deviated from this usual type, and were so framed that the defences could l)e admitted under the general denial, this fact will be particularly mentioned. § 700. Payment. It is the settled rule, except perhaps in Cali- fornia, that when the complaint or petition is in the customary 1 Stone's Administrator i'. Powell, 13 ment are new matter and must be pleaded, B. Mon. 312; Sweet v. Tattle, 14 N. V. is further illustrated by the following 4»'>5, 468, per Comstock J. (defect of par- cases: Allison v. Chicago, &c. R. R., 42 ties); Gardner v. Clark. 21 N. Y. 399 Iowa, 274; Plath ;;. BoansdorfT, 40 Wis (pending of another action) ; Mayhcw i'. 107; AYliitc r. Miller, 7 llun, 427; Daw liobinson, 10 How. Pr. 102 (defect of par- ley c. Brown, id. 461; Levi v. Haver ties); Bridge v. Payson, 5 Sandf. 210 steck, 51 Ind. 236 ; Stafford »;. Nutt, 51 id (defectof parties) ; Freeman I'. Carpenter, 535; Smith v. Peckham, 39 Wis. 414; 17 Wis. 126 (pendency of another action) ; Nowhall House Co. v. Flint, &c. R. R., 47 Thompson j;. Greenwood, 28 Ind. 327; id. 510; Dutcher u. Dutciier, 39 id. 651, Bond V. Wagner, 28 Ind. 462. The rule and numerous cases cited, stated in the text, that defences in abate- EXAMPLES OF NEW MATTER. 741 form, not averring the fact of non-payment in so distinct a man- ner that an issue would be raised upon it hy a denial, the defence of payment is new matter, and must be pleaded as such.^ When, however, the complaint or petition contains negative averments of non-payment, so that a traverse of them is in fact equivalent to an allegation of payment, an issue is made by the mere denial general or specific, which admits the defence, of payment to be proved under it. This is not an exception to the foregoing rule ; for an issue upon the very fact of payment is actually formed by such assertions and denials. The decided cases present some differences in respect to the form of the averment in the com- plaint or petition, which, by being traversed, permits the defence to be interposed ; but the principle upon which they were decided is the same in all. In an action to recover for work and laboi', the complaint stated the agreement, the performance of services at a stipulated price, and that on a certain day named the defendant " was indebted to the plaintiff in the sum of $333, being the balance remaining due after sundry paj^ments made by defendant to the plaintiff." The answer was a general denial. Evidence offered by the defendant to prove payments made bj'^ him on account, the New York Court of Appeals held, ought to have been admitted under this issue, distinguishing the case from McKyring v. Bull by reason of the peculiar averments in the complaint.^ Where a complaint set out an indebtedness 1 McKyring v. Bull, 16 N. Y. 297 ; suit brought. Held, that defendant should Morrell r. Irving Fire Ins. Co., 33 N. Y. have set up the defence in a supplemental 429, 443, per Davies J. ; Texier v. Gouin, answer. See also Everett v. Lockwood, 5 Duer, 389, ;391. per Oakley C. J. ; Mar- 8 Hun, 356; Knapp v. Runnells, 37 Wis. tin V. Pugh, 23 Wis. 184 ; Phillips v. Jar- 135 ; Hegler v. Eddy, 53 Cal. 597 (tender), vis, 19 Wis. 204 ; Stevens v. Thompson. 2 Quinn v. Lloyd, 41 N. Y. 349, 352. 5 Kans. 305, distinguishing Marley v. perLott J. :" Tlie denial involved an issue Smith, 4 Kans. 183, on the ground that upon all tlie facts above stated and denied, in the latter case the allegations were not only of the agreement and of the time unusual; Baker v. Kistler, 13 Ind. 63; which the plaintiff worked, but necessarily Hubler v. Pullen, 9 Ind. 273; Bassett v. of the different payments made, so as to Lederer, 1 Hun, 274, an action for goods determine what in fact was the balance of sold and delivered. The complaint stated the defendant's debt. That balance could that defendant " had not paid the price, not be ascertained without an inquiry as nor any part thereof: " the answer was a to the amount of the payments, as well general denial. Held, that proof of pay- as the value of the work performed." ment under the issue was error. This case Also per Woodruff J. (p. 354): " It was certainly goes further than any other, wholly unnecessary for the plaintiff to sue and is inconsistent with those cited in the for a balance as such. He might allege next following note. Hall v. Olney, 65 the contract, performance on his part. Barb. 27, an instance of payment after and claim payment; and then, if the 742 CIVIL REMEDIES. by the defendant, and added " that the same was still due and unpaid," the general denial was held a sufficient answer to allow proof of payment.^ In an action for work and labor, the complaint alleged the services to a specified amount in value, and that there was a balance due the plaintiff, " after deducting all payments made by defendant to plaintiff thereon, of fl75." The general denial, it was held, entitled the defendant to prove all the payments which he had made.^ This special rule has been repeatedly acted upon by the courts of California. Indeed, as has been before stated, they have gone much farther, and have made it a general requisite, in actions upon promissory notes at least, that the complaint must aver the non-payment as a breach in a distinct form, or it will fail to state a cause of action ; and that the general denial of such a pleading necessarily admits evidence of payment. In some of the cases the judges have gone to the length of declaring that the general denial, like the general issue of nil debet or non assumjysit, always admits the defence of payment.^ § 701. When a defence of payment is pleaded, it is competent to show that the payment was actually made in cash, or in some other manner agreed upon by the parties : as that it was made by the delivery of chattels, which were received by the creditor in satisfaction of his demand ; * or by the giving and acceptance of anything that is received in the place of money, and in discharge of the debt.^ But under the answer of payment in an action upon a note, the defendant cannot prove a want of consideration for the note, or a mistake in its execution, or an error in the prior accounting and the ascertaining the balance for which it was given, or the execution of a contemporaneous writing which modifies or controls the legal effect of the note ; and the same defendant desired to prove payment, lie faction was allowed to be proved under a must allefie payment in his answer. I5ut general denial). wliere the plaintiff sues for a balance, he ■* Frisch v. Calcr, 21 Cal. 71 ; Fair- voluntarily invites examination into the child y. Amsbaugh, 22 Cal. 572 ; Wetmore amount of the indebtedness, and the e.x- v. San Francisco, 44 Cal. 294, 299, per tentof the reduction thereof by payment." Crockett .1.; Davanay f. Eggenhoff, 43 1 Marley v. Smith, 4 Kan. l'83, 186. Cal. 395, 307, per Rhodes J. Explained in Stevens v. Thompson, 5 * Farmers' Bank r. Sherman, 33 N. Y. Kan. 305. 69. Also, receipt by plaintiff of the '^ White V. Smith, 46 N. Y. 418. See proceeds from collaterals in his hands, also Looby v. West Troy, 24 Hun, 78 (a Wolcott !>. Ensign. 5:5 Ind. 70. special case in which an accord and satis- * Hart v. Crawford, 41 Ind. 197. EXAMPLES OF NEW MATTER. 743 doctrine is plainl}' applicable to actions upon any species of writ- ten agreement.^ § 702. The defence of an arbitrament and award covering the same matters in controversy as those stated in the complaint is new matter, and must be pleaded ;2 and so also is the defence of a former recovery for the same cause of action,^ and of a former partial recovery.^ § 703. Actions to recover Possession of Chattels. In an action to recover possession of chattels, the complaint alleging property in the plaintiff, and the answer specifically denying the wrongful taking and detention of the goods, and no more, the facts relied upon by the defendant as constituting his actual defence were, that the plaintiff and one G. were partners and the real owners of the goods in question, and that G. had bailed them to the de- fendant, who retained them in virtue of such bailment. This defence, however, was held inadmissible under the pleadings, because, first, the unqualified ownership of the plaintiff was ad- mitted on the record by the failure of the answer to deny the allegation of property contained in the complaint ; and, secondly, the authority conferred by one owner, G., upon the defendant, to take and retain possession of the chattels, was new matter, and should have been pleaded.^ And, in a similar action, a defence that the defendant had loaned money to the plaintiff's intestate, who was the late owner of the chattels, and had received from him the possession thereof, and retained them in possession as security for such advances, is new matter, and cannot be proved unless specially pleaded ; ^ and the same is true of the defence, that the plaintiff's title is fraudulent and void as against his cred- itors." § 704. Actions for Torts. In an action to recover damages for 1 Lowry v. Shane, 34 Ind. 495. category ; for the defences admit the con- 2 Brazill v. Isham, 12 N. Y. 9, 17, per tract as stated, and avoid its effect by Gardiner J.: "The defendants cannot matter ex /)os< /(/do." avail themselves of tlie award in this case ^ Hendricks v. Decker, 35 Barb. 298; as a defence, as they have not insisted Piercy v. Sabin, 10 Cal. 22 ; Norris v. upon it in their answer. The plaintiff liad Amos, 15 Ind. 365. See also Cave v. stated in his complaint a prima facie cause Crapto, 53 Cal. 135. of action arising on the original retainer * Morrell v. Irving Fire Ins. Co., 33 of the defendants. To meet the case thus N. Y. 429, 443. made by new matter constituting a de- ^ Tell i'. Beyer, 38 N. Y. 161. fence, it must be set forth plainly in the ^ Gray r. Fretwell, 9 Wis. 186. answer. An award or former recovery ^ Frisbee v. Langworthy, 11 Wi8. for the same cause would fall within this 375. 744 CrVIL REMEDIES. the conversion of chattels, a justification by the defendant as sheriff, under an attachment, judgment, execution, and levy against a third person, charging that the goods were the property of such judgment debtor, and had been fraudulently assigned and transferred by him to the plaintiff, so that the latter's title was void, cannot be proved under an answer of denials, but must be pleaded as new matter.^ There are cases which go to the extent of holding that, under the general denial, — which traverses the indispensable averment of a sufficient property in the jjlaintiff, — the defendant cannot show property in himself: ^ but this ruling seems opposed to the weight of authority ; and it is certainly contrary to the plainest principles of pleading, for such facts, when proved, merely contradict the plaintiff's averment of his own title. ^ § 10'). In the action for breaking and entering the plaintiff's premises (trespass qu. cl.fr.^, with the complaint in the proper form, and without any unnecessary averments, the general denial does not raise any issue as to the title to the land, and no evidence attacking such title can be received except under a separate defence ;* nor can any defence of justification be proved unless specially pleaded.^ Where two or more unite as plaintiffs in an action for the taking and carrying away their goods, a de- fence that " the plaintiffs are not joint owners of the goods and chattels mentioned in the complaint" is new matter.^ To a complaint for an assault and battery committed by a railroad con- ductor in forcibly ejecting the plaintiff from the cars, the general denial was pleaded : under this issue, the defendant was not per- mitted to show the regulations of the company, that they were reasonable, and that he was complying with them in doing the act complained of.^ The defence of recaption, or its equivalent, 1 Jacobs V. Remsen, 12 Abb. Pr. 390 ; 43 ; Langton v. Hagerty, 35 Wis. 150, Graham r. narrower, 18 How. Pr. 144. IGl. In the latter case, T. R. Strong J. seems ^ Dyson v. Ream, 9 Iowa, 51. to concede, that, under a denial of the al- ^ See supra, §§ 077, G78. But the de- legation of property in the plaintiff, the fence of title in a third person is new defendant may prove general jjroperty in matter. Smith v. Hall, G7 N. Y. 48. himself, but not a justification tmderjudi- * Squires r. Seward, 1(5 IIow. Pr.478; cial process. Frisbee w. Langworthy, 11 Rathbone v. McCoiincU, 20 Barb. 311; Wis. 37.5, an action to recover posses- Althouse v. Rice, 4 E. I). Smith, "47. sion, but governed by the same rule as ^ Johnson v. Cuddington, 35 Ind. 43. to pleading a justification. Isley v. IIu- •' Walrod v. Bennett, C Barb. 144. ber, 45 Ind. 421 ; Boaz v. Tate, 43 Ind. " Pier i;. Finch, 29 Barb. 170. In an 00, 71,72 ; Johnsons. Cuddington, 35 Ind. action for false arrest and imprisonment. EXAMPLES OF NEW MATTER. 745 in an action against a sheriff for an escape, is new matter. An answer setting up tliis defence having been pleaded, the defend- ant, at the trial, offered to prove, not the return or the retaking of the prisoner, but that he would have voluntarily returned, and was intending to do so, had he not been prevented from ac- complishing his purpose by the fraud of the plaintiff. This defence was held inadmissible under a general denial, or under the special answer of recaption, because it was new matter, and the allegations and proofs must agree.^ The defence of recoup- ment of damages is in all cases new matter, and must therefore be pleaded, although it is often a partial defence analogous to those in mitigation.^ § 706. Actions concerning Lands. In the legal action to recover possession of land, the complaint or petition being in the common form, alleging in general terms that the plaintiff is seised in fee of the premises, and the wrongful taking and withholding posses- sion thereof by the defendant, and the answer consisting merely of denials general or specific, the defendant cannot, it has been held, prove a prior equitable title in himself derived from the plain- tiff or his grantor, although a legal title in himself may be proved, as this would directly contradict the averment in the complaint that the plaintiff was owner of the premises.^ An action was proof of the plaintiff's bad character in and prove to maintain his action is the respect to tlie offence for which he was recovery of tlie judgment, the issue and arrested cannot be proved under the gen- delivery of execution to the sheriff, the eral denial. Scheer v. Keowii, 34 Wis. capture of the debtor on the execution. 349. The following defences are further and the escape from custody before suit instances of new matter, — in an action brought against tiie sheriff tlierefor. We against a sheriff for false return, &c., de- have seen that the sheriff mt, "setoff," which is an independent cause of action arising on contract or ascertained by tlie decision of ti)e court, and can be pleaded only in an action on contract ; secondly, " counter- clain), which is a cause of action in favor of the defendants, ov some of them, against the plaintiffs, or some of them, arising out of the contract or transaction set forth in the plaintiff's petition as the foundation of his claim, or connected with tlie subject of the action; tldrdhj, "cross-demand," wliich is a statement of any new matter constituting any cause of action in favor of tlie defendant, or all the defendants, if more than one, against the i)laintiff, ovall the plaintiffs, if more than one, and wliich the defendant or defendants might have brought when the suit was commenced, or which was then held, whether matured or not, if matured when pleaded. " The ' cross-demand ' is more comprehensive than either the set-off or the counter- claim. A set-off is onlv pleadable in an action on a contract, and must itself arise on contract. A counter-claim must arise out of the cause of action, or be connected therewith. A ' cross-demand,' however, arises upon any independent cause of action, whether on contract or tort. But a ' cross-detnand,' unlike a counter-claim, must exist in favor of all the defendants, if there are more than one, and against all the plaintiffs, if there are more than one. This is the plain reading of the statute ; so that, when there are several defend- ants, a ' cross-demand ' in favor of one only cannot be pleaded." Applying these principles, the answer in question was held to be wholly bad. The demands were certainly not set-offs, since they arose out of torts : they were not counter- claims, because they did not arise out of, nor were they connected with, the plain- tiff's cause of action. If it is said they were " cross-demands," they were inad- missible, because they were in favor of one defendant alone. The claim of dam- ages for the tort to the wife was declared to be one in her own favor, if it existed at all; and the husband could not join with her in enforcing it, whether she brought an action on it as a plaintiff, or pleaded it as a " cross-demand " in an action against her. COUNTER-CLAIM. 801 when the defendants in an action are jointly and severally liable, although sued jointly, a counter-claim, consisting of a demand in favor of one or some of them, may, if otherwise without objec- tion, be interposed. Thirdly^ since it is possible, pursuant to express provisions of all the codes, for persons severally liable to be sued jointly under certain circumstances in a legal action, — that is, in an action brought to recover a common money judg- ment, — a counter-claim in favor of one or more of such defend- ants may be pleaded and proved. Fourthly^ in all equitable suits wherein persons having different interests, and against whom different reliefs are demanded, may be, and constantly are, united as co-defendants, a counter-claim existing in favor of one or more of such defendants may be interposed, free from any objection based entirely upon the situation of the parties. Fifthly^ when two or more persons have a joint right of action, and unite as plaintiffs to enforce the same, a counter-claim cannot be admitted against one or some of them in favor of any or all the defendants. Sixthly, when two or more persons have separate rights of action, and they are properly united as plaintiffs in one action to enforce these rights, a counter-claim may be set up against one or more of them, as the case may be. . Seventhly, if two or more plaintiffs should bring an action joint in form, and should allege and claim to recover upon a joint cause of action, — even a contract, — but in fact the joinder was improper because as to some, or perhaps all but one, there existed no right of action, a recovery could be had in favor of the one or more who established a cause of action, and the complaint be dismissed as to the others ; and it would seem to follow as a necessary corollary that a counter-claim might be interposed againt the one or more of the plaintiffs under such circumstances in whose favor a separate judgment could be ren- dered. Lastly, in equitable actions, counter-claim, in favor of one or some of the defendants, and against one or some of the plain- tiffs, must be permissible as a general rule, since in equity the common-law doctrine of joint right and liability does not gen- erally prevail, and separate judgments, or judgments confer- ring separate relief, among the parties, are almost a matter of course. § 762. Counter-claims otherwise proper may be inadmissible or ineffectual for the want of the necessary parties before the court, since the same rules as to parties must apply to them as would 51 802 CIVIL REMEDIES. be applied if the facts alleged and the relief demanded were stated in a complaint or petition as the basis of a separate action. Tiiis objection will more frequently present itself in counter- claims that are equitable in their nature. As the relief miist be denied to the plaintiff in an equitable action unless he has brought all the necessary parties before the court, and may be denied unless he has brought in all the proj^er parties, and as the defend- ant pleading a counter-claim is in the same condition as an ordi- nar}^ plaintiff, while the plaintiff against whom it is pleaded is in the position of an ordinary defendant, it follows, firsts that the relief demanded by the counter-claim must be refused if all the necessary parties are not present ; and, secondly^ that it may be refused if any proper parties have been omitted. These propo- sitions require no argument or citation in their support. They result inevitably from the fact that the counter-claim is in its nature a cross-action, governed by the same rules which control a suit when proceeding in the ordinary and direct manner. Several examples of legal actions in which the counter-claim has failed for want of the necessary parties have already been quoted ; namely, those decisions in which counter-claims against the plaintiff in the action, and others jointly liable with him, or in favor of the defendant and others jointly interested with him have been overruled.^ A single additional authority will suffice to illustrate a principle which really needs no illustration. In an action to foreclose a mortgage, brought by an assignee thereof, the mortgagee not being a party to the record, the defendants alleged, as an equitable counter-claim, facts tending to show that the mortgage and the note secured by it were procured to be executed b}'' the mortgagee's fraud, and that the plaintiff took with notice of the fraud, and prayed that the note and mortgage might be cancelled, and the plaintiff enjoined from enforcing them. The court said : " It is evident that, if the allegations of this answer were in the form of a complaint in a separate action asking that the note and mortgage be surrendered and cancelled, the railroad [the mortgagee] would be a necessary party defend- ant. The defendant then could not set up the facts alleged in his answer as a counter-claim in this action, for the reason that a new party must be brought before the court." ^ In a few States 1 Sec supra, §§ 754 et scq. See also Coursen v. Hamlin, 2 Duer, 513; 2 McConihe v. UolUster, 19 Wis. 2G9. Curamings v. Morris, 25 N. Y. G25. But COUNTER-CLAIM. 803 this difficulty is very properly met and obviated by express pro- visions of their codes, which authorize the addition of new par- ties in order that the relief demanded by the counter-claim or set-off may be granted.^ III. Tlie Suhject-Matter of Counter-claims^ or the Nature of the Causes of Action which may be pleaded as Counter-claims. § 763. This general subdivision is naturally separated into three heads, which I shall proceed to examine in the order stated. A. Nature of the subject-matter generally, with special refer- ence to the question whether the counter-claim may be an equi- table cause of action and may result in the granting of equitable relief, or whether it must be restricted to legal causes of action and reliefs. B. The particular questions which arise under the first clause or branch of the statutory definition. C. Those which arise under the second clause or branch of the same pro- vision. A. Whether a Counter-claim, may he an Equitable Cause of Action, and the Means of obtaining Equitable Relief ; or whether it must be restricted to Legal Causes of Action and Reliefs. § 764. From the decisions cited in the foot-note, the following doctrines and rules are clearly and firmly established. In an equitable action, a counter-claim consisting of an equitable cause of action, and demanding equitable relief, may be interposed if it possesses all the other elements required b}' the definition, and may, in many if not most cases, be pleaded by one or more of the defendants less than all against one or more of the plaintiffs. The language of the statute does not confine the use of this affirmative species of defence to legal actions, nor require that it see Du Pont v. Davis, 35 Wis. 6.31, 640, which holds the contrary, was expressly 641, which holds that an equitable conn- disapproved. See also Pennoyeri". Allen, ter-claim of reformation, and the like, 50 Wis. .308. may be sustained, and the relief granted, ^ Ohio, §§ 96, 98; Kans. §§ 97, 99; without the presence of parties collater- Neb. §§ 103, 105 ; Ind. § 63 ; Iowa, ally interested ; as, for example, tlie § 2662. See these sections quoted at grantor in the deed to be reformed. The large, supra, § 584, note, case of Hicks v. Sheppard, 4 Lans. 336, 804 CIVIL REMEDIES. should necessarily be of a legal nature itself. Adapting itself to the character of the action in which it is introduced, in those which are legal it resembles, although much broader and more comprehensive, the former set-off and recoupment, while in those which are equitable it often takes the place of a cross-bill or complaint. In a legal action, also, an equitable counter-claim may be set up and affirmative relief may be granted by its means. As the codes in express terms permit equitable defences in such actions, and as in the self-same provision, and by means of the same language, the statute authorizes the joining of as many defences and counter-claims, whether legal or equitable^ or both, as the defendant may have, to deny the possibility of an equitable counter-claim in a legal action, would make it necessary, if any consistency were preserved, to deny also the possibility of an equitable defence. The courts, as may be seen from the cita- tions made below, have, with a few unimportant exceptions, been unwilling to nullify tlie language, and defeat the design of the legislature in this manner, and following its plain meaning and import, they have freely admitted and sustained the equi- table counter-claim in all actions, whether legal or equitable, where that form of relief was appropriate, and was authorized by the descriptive tei-ms of the statute.^ § 765. Whether all affii-mative equitable relief granted to a defendant must be limited to the cases in which a counter-claim is possible, that is, whether a defendant is unable to set up a case for equitable afhrmative relief, and obtain a judgment therefor in 1 Hicksville, &c. R. R. r. Long Island amples of equitable counter-claims. Lawe R.R., 48 Barb. 355, 360; Fisher y.Moolick, v. Hyde, 39 Wis. 845 (no Icrjal counter- 13 Wis. 321 ; Sample v. Kowe, 24 Ind. claim possible in an action of ejectment) ; 208; Lombard i'. Covvham, 34 Wis. 486, Stowell o. Eldred, .39 id. 014; Perkins v. 41*1, 4!>2, and cases cited, which sliow that Town of Port Washington, 37 id. 177; in Wisconsin every equitable defence must Ingles v. Patterson, 36 id. 373; Glen & be a counter-claim. Vail v. Jones, 31 Ind. Hall Man. Co. v. Hall, 61 N. Y. 226, 2.36 ; 467 ; Charlton v. Tardy, 28 Ind. 4.")2; Du Cook v. Jenkins, 71) id. 575; Winslow v. Pont V. Davis, 35 Wis. 031, 0.39-641; Winslow, 52 Ind. 8 ; Hinkle »>. Margerum, Spalding v. Alexander, 6 Bush, IGO ; 50 id. 240 ; McManus i'. Smith, 53 id.211 ; Jarvis v. Peck, 19 Wis. 74; Grimes v. Gossard y. Ferguson, 54 id. 519 ; Teague Duzan, 32 Ind. 301 ; Woodruff i\ Garner, v. Fowler, 50 id. 509 ; Morrison v. Kramer, 27 Ind. 4 ; Eastman v. Linn, 20 Minn. 58 id. .38 ; Tabor v. Mackee, 58 id. 290 ; 433 ; Andrews v. Gillespie, 47 N. Y. 487, Conaway i'. Carpenter, 58 id. 477 ; Jeffer- 490; Cavalli v. Allen, 57 N. Y. 508, 514. sonvilie, &c. R. R. v. Oyler, 60 id. 383; See, per contra, that the counter-claim Ilampson v. Fall, 04 id. 382 ; Scliafer v. must always be a legal cause of action, Schafer, 68 id. .374; Moyle v. Porter, 51 Jones V. Moore, 42 Mo. 413, 419. The Cal. 639 ; Wheable v. Reddick, 79 N. C. following cases furnish additional ex- 621. COUNTER-CLAIM. 805 his favor against the phiintiff, unless he can bring the facts con- stituting his cause of action within some one of the species of counter-claim defined by the codes, is another question. There are decisions which answer this question in the affirmative, and hold that all such relief must be denied unless the defendant's cause of action is a proper counter-claim. This doctrine was recently maintained by the Supreme Court of New York. An action was brought to restrain the defendant from using a trade- mark alleged to be the sole property of the plaintiff. The answer asserted that the trademark in question belonged in fact exclu- sively to the defendant, that the plaintiff had no right to it, but was unlawfully and wrongfully using it, and thereby interfering with and injuring the defendant's business, and concluded by praying for an injunction, an account, and judgment for dam- ages. At the trial, the defendant's allegations were fully sus- tained by the proofs, and he obtained the judgment demanded. This judgment was reversed on aj^peal, the court saying: "To entitle the defendant to affirmative relief, the answer must set up a counter-claim.^ The claim of defendant for relief is not a counter-claim within the meaning of that term as used in the code. It does not arise out of the transaction set forth in the plaintiff's complaint, nor does it arise on contract." ^ The gen- eral subject of the affirmative equitable relief which may be obtained by a defendant has been already discussed, and the discussion need not be repeated. Undoubtedly, in the great majority of instances, any equitable affirmative relief properly conferred upon a defendant would fall within some description of a counter-claim ; in order that it should not be a counter-claim, it must be a cause of action entirely independent of that set forth by the plaintiff, and not arising from a contract. Under the equity practice and system of pleading which prevailed prior to the codes, the matters which could be set up by a defendant in a cross- bill, as the foundation for affirmative relief to him, must have some connection with the matters originally charged against him by the plaintiff's bill, even if his demand did not directly arise out of such original matters ; an entirely distinct and inde- 1 Wright V. Delafield, 25 N. Y. 266 ; reversed on appeal, and the counter- Garvey v. Jarvis, 54 Barb. 179. claim was sustained as valid. Glen & 2 Glen & Hall Man. Co. v. Hall, 6 Hall Man. Co. v. Hall, 61 N. Y. 226, 236. Lans. 168, 161, 162. This decision was 806 CIVIL REMEDIES. pendent cause of action could not be alleged by the defendant in a cross-bill ; if he had such a claim, he could only enforce it by a separate suit.^ The codes do not seem to have, in any express manner, enlarged the scope and operation of the defendant's equitable affirmative relief otherwise than by the provisions relating to the counter-claim. In actions of a legal nature it is very clear that no affirmative relief can be obtained by a defend- ant, unless his cause of action or demand is a proper counter- claim. § 766. I shall close this branch of the subject by mentioning some special instances, or actions of a particular character, iu which it has been held that a counter-claim is not possible, or that the affirmative relief demanded by the defendant could not be the subject of a counter-claim. In an action for a limited divorce on the ground of cruelty, the defendant's answer, charging adul- tery by the plaintiff and demanding an absolute divorce, is not a proper counter-claim ; ^ nor, in an action for an absolute divorce because of adultery, is an answer alleging cruelty and praying for a judicial separation.^ In some States a mechanic's lien is enforced, not by any special proceedings, but by an ordinary equitable suit. An answer in an action for such a purpose, alleging that the premises described in the complaint formed the defendant's " homestead," and were therefore, pursuant to stat- ute, free from all lien or charges in favor of creditors, was held not to be a counter-claim, since it stated no cause of action against tlie plaintiff, and was, in fact, tantamount to a denial."* § 767. It would seem that, in an action to recover the posses- sion of specific chattels, no counter-claim is possible, unless, per- haps, equitable relief may be awarded under some very exceptional circumstances. A judgment for a return to the defendant of the chattels in controversy is not a counter-claim, for it is expressly provided for by the codes, the very issue in the action being. Which party is entitled to the possession ? and the court by its judgment awarding the possession, or the value in money 1 Daniell's Clian. PI. and Prac. 1047 ; see Armstrong r. Armstrong, 27 Ind. 186; Story's Eq. PI. §§ .389, 307. McN.nmara v. McNamara, 9 Abb. Pr. 18, ■■* Henry v. Henry, 3 Robt. 614 ; 17 in wliich such relief was granted to the Abb. Pr. 411. defendants. 3 Diddell V. Diddell, 3 Abb. Pr. 167; * Engiebreclit v. llickert, 14 Minn. Griffin v. Griffin, 23 How. Pr. 183; Tcr- 140. hune V. Terhuno, 40 How. Pr. 258 ; but COUNTER-CLAIM. 807 if possession cannot be given, to the one who establishes the right; if, therefore, the plaintiff had taken the goods into his own cus- tody by the authoi'ized preliminary proceedings, they or their value must be restored when the action fails.^ If a counter-claim can be interposed in this suit, it must be either (1) a demand for money, or (2) a demand for the possession of certain other and different chattels, or (3) a demand for some kind of equitable relief. A counter-claim for money could not be admitted under the principle established by the cases, that the relief must have some connection with that asked for by the plaintiff, and must tend to diminish or modify it in some manner. A judgment for money obtained by the defendant could not interfere with or be counter to a judgment awarding possession of chattels to the plaintiff.^ The same difficulties attend the second alternative. It seems impossible that when the plaintiff seeks to recover pos- session of certain specific chattels, the defendant's right to the possession of other and distinct articles could arise out of the same transaction which is the foundation of the plaintiff's claim or could be connected with the subject of the plaintiff's action. The "transactions," which are the foundations of their respective causes of action, must, from the very nature of the case, be dif- ferent. It is not pretended that the action, or the cross-demand, is based upon contract. And, finally, the relief granted to the defendant would be entirely independent of that conferred upon the plaintiff; the two would be complete and entire each by itself, and thus there would be in effect two judgments, not modi- fying or interfering with each other, and not relating to the same subject-matter. This reasoning, and the conclusion reached by it, have been sustained by judicial decision, and thus seem to be supported alike by principle and by authority.^ It is possible, 1 See De Leyeri'. Michaels, 5 Abb. Pr. vendee. In an action brought to recover 203, in whicli this doctrine was atHrmed, the chattels under such circumstances, tlie although it plainly needs no authority in defendant might, perhaps, set up as a its support. counter-claim an independent demand due '^ See Moffat v. Van Doren, 4 Bosw. to himself from the plaintiff on contract, 609. It is possible, perhaps, that the and thus diminish or extinguish the un- plaintiff's right to the possession might paid balance of the purchase price. Such depend upon the defendant's failure to a counter-claim would be analogous to the pay a stipulated sum of money, as in the similar one in a suit by a vendor of land case of a conditional sale and delivery, against the vendee, which was sustained when the property was to remain in the in Cavalli i\ Allen, 57 N. Y. 508. vendor until the price was paid, although ^ Lovensohn v. Ward, 45 Cal. 8. This possession had been transferred to the case expressly holds that a claim to re- 808 CIVIL REMEDIES. perhaps, though hardl}' probable, that equitable relief may, under certain exceptional circumstances, be recoverable by the de- fendant in an action similar in its nature and object to the ancient replevin or detinue. Courts of equity, however, very rarely interfered in controversies concerning the title to and possession of chattels. B. The Particular Questions which arise under the First Clause or Branch of the Statutory Definition. § 768. The language of the first clause or branch of the definition, which is found in all the codes except those of Indiana and Iowa, and which is now to be interpreted, is: "A cause of action arising out of a contract or transaction set forth in the complaint [petition] as the foundation of the plaintiff's claim, or connected with the subject of the action." Following the order of this language, it is plain that three different subjects are embraced within it, and the whole discussion must therefore be separated into three corresponding divisions: namely, 1. Cases in which the cause of action alleged as a counter-claim arises out of the contract set forth in the complaint ; 2. Those cases in which it arises out of the transaction set forth in the comj^daint ; 3. Those cases in which it is connected with the subject of the action. A complete examination of these three subdivisions re- quires a construction of certain particular phrases which form a part of the statutory definition. These are («) " foundation of the plaintiff's claim," or when is a contract or transaction the foundation of the plaintiff's claim? (6) "arising out of," or when does a cause of action arise out of a contract or transac- tion ? (c) " transaction ; " (t?) " subject of the action ; " (e) " con- nected with," or when is a cause of action connected with the subject of the action ? Although the signification of all these phrases and terms must be determined, for upon it depends the interpretation to be given to the entire provision, yet it will be impracticable to take them up and examine them separately. Each is so connected with the others, that, in ascertaining their sense, all must be considered together. Tlie courts liave invari- ably pursued this method ; and their opinions, from which our cover tlie possession of distinct and separate chattels cannot be set up as a counter-claim. COUNTER-CLAIM. 809 interpretation will be taken, have always construed the statutor}- clause as a whole, and have not attempted to distinguish and analyze its constituent parts. I shall therefore pursue tlie order already mentioned, and shall discuss the three subdivisions into which the subject has been separated, and in so doing shall inci- dentally define the legal import of the several phrases and terms above enumerated. The decisions which have given, or have attempted to give, a construction to the clause are numerous and conflicting. I shall freely refer to these cases, citing those which represent all theories and schools of interpretation, and shall endeavor to collect from them such doctrines and practical rules as seem to be correct upon principle and to be supported by the weight of authority. As a preliminary step to the discussion of the three subordinate heads, I shall quote and analyze certain judicial opinions which have treated of the clause as a whole, and have proposed general rules by which its meaning may be determined. Having thus ascertained these general rules, I shall inquire what particular cases or classes of cases do or do not fall within one or the other of the three subdivisions before mentioned. § 769. General Principles of Construction. The cases now to be cited throw more or less light upon the meaning of the statu- tory clause as a whole, and also, to a certain extent, upon that of the special phrases and terms which it contains ; and from them some general principles of interpretation can be inferred. The lower floor of a building having been leased, the landlord brought an action for rent due. The answer was pleaded as a counter- claim. It alleged that the plaintiff occupied the upper floors of the building ; that he wantonl}' and negligently suffered water- pipes to get out of repair and to leak, and by this means caused filthy water to come upon the defendant's premises ; also that plaintiff wantonly and negligently caused filthy water to be thrown from his rooms upon defendant's premises ; that by these acts damages were caused to the defendant in an amount speci- fied, for which judgment was demanded against the plaintiff. A demurrer to this answer having been sustained, the defendant appealed to the New York Court of Appeals, which affirmed the decision below.^ As already said in a former chapter, the diffi- 1 Edgerton v. Page, 20 N. Y. 281, 285. ing extracts are taken : " The demand of From the opinion of that court the follow- the defendant set out in the answer does 810 CIVIL EEMEDIES. culty in arriving at the true interpretation of the term "transac- tion " lies in the fact that it had no strict legal meaning before it was used in the statute. Being phiced in immediate connec- tion with the word "contract," and separated therefrom by the not arise out of the contract set forth in the complaint. That contract is for the payment of rent upon a lease of the de- mised premises. The defendant's de- mands arise from the wrongful acts of the plaintiff In permitting water to leak and run into the premises, and in causing it to be thrown upon the premises and prop- erty of the defendant. These acts are entirely independent of the contract of hiring, upon which the action is brought. The demands are not connected with the subject of the action ; that is, the rent agreed to be paid for the use of the premises. The defendant's demands are for a series of injuries to his property deposited upon the premises, and for impairing the value of tlie possession. It would be a very liberal construction to hold that, in an action for rent, injuries arising from trespasses committed by the lessor upon the demised premises might be interposed as a counter-claim. The acts of the plain- tiff in this case are of a similar nature. They are either acts of trespass or of negligence from which the injuries to the defendant accrued. Such a construction could only be supported by the idea that the subject of the action was the value of the use of the premises. But where there is an agreement as to the amount of the rent, that value is immaterial. Unless the acts of the plaintiff amount to a breach of tlie contract of hiring, they are not connected with the subject of the action." The opinion proceeds to show that the acts complained of were not a breach of an implied covenant of quiet enjoyment, and concludes : " There is nothing in the answer in tiiis case tending to show that any of the acts of the ])laintiff were done uniler any claim of riglit whatever. They did not, therefore, amount to a breach of the contract created by the lease ; and the injuries sustaineil by the defendant do not, therefore, constitute a counter-claim coimected with the subject of the action." To tlie same effect are the decisions and the general interpretation given to the clause in Mayer v. Parker Vein Co., 12 Abb. Pr. 300, 301 ; per Woodruff J. ; As- kins V. Hearns, 3 Abb. Pr. 184, 187, per Emott J. ; Schnaderbeck v. Worth, 8 Abb. Pr. 37, 38, per Ingraham J. ; Drake v. Cockroft, 4 E. D. Smith, 34, 3'J, per Wood- ruff J. ; Bogardus v. Parker, 7 How. Pr. 303, 305; Barhyte v. Hughes, 33 Barb. 320, 321, per Gierke J. These cases all give a very narrow meaning to the term " transaction," and incline to the position that a cause of action on contract, and one for tort, or two causes of action for tort, can never be said to arise out of the same transaction. The last case cited, Barhyte v. Hughes, goes so fjir as to hold that " transaction " and " contract " are synonymous ; in other words, that no cause of action can arise out of a " trans- action " unless it springs from a contract. The following recent decisions illustrate the questions discussed in the paragraphs of the text (§§ 769-776) ; Brady v. Bren- nan, 25 Minn. 210 (in an action on con- tract, defendant ma}' counter-claim a demand arising out of conversion, by waiving the tort, &c.) ; People v. Den- nison, 84 N. Y. 272, 279, citing Smith v. Hall, 07 id. 48 ; Pattison v. Kicliards, 22 Barb. 143 (in an action fora tort — fraud — a counter-claim on contract cannot be set up, since it would not arise out of the same transaction, — a very important case) ; Smith v. Hall, G7 N. Y. 48 (in an action for a conversion, there can be no counter-claim, — not the same transac- tion) ; Carpenter v. Manhattan Life Ins. Co., 22 Hun, 49 (in an action for damages from a tort, defendant nunj counter- claim a demand for tort, if connected with the subject of the action or arising out of the same transaction) ; on the general subject of arising out of the same transaction, see Bernheimer v. Wallis, 11 Hun, It) ; Bradhurst ij. Townsend, 11 id. 104 ; Gilpin r. Wilson, 53 Ind.443;Teague (•. Fowler, 50 id. 509; Douthitt v. Smith, G9 id. 403; Whoable v. Heddick, 79 N. C. 521 ; James v. Cutter, 53 Cal. 31. COUNTER-CLAIM. 811 disjunctive " or," one conclusion is certain at all events ; namely, that the legislature intended by it something different from and additional to " contract." The most familiar rules of textual inter- pretation are violated by the assumption that no such signification was intended. The only question at all doubtful is, How far did the law-makers design to go, and how broad a sense did they attach to the word? Is it to be used in its widest popular mean- ing, or must it be narrowed into some limited and technical meaning, and thus be made a term of legal nomenclature ? While in common speech, a single assault or slander or lie would not be called a "transaction," yet the whole series of events grouped around such a central fact, and connected with it, would, I think, be so designated in popular language, and a fraudulent scheme, or in other words a cheat, is a most familiar example of the class of events to which the term is usually applied. But taking the word " transaction " in the limited sense of a " negotiation of business," or some other similar expression, it is certainly a mis- take to say that torts cannot arise out of it different from and adverse to the plaintiff's cause of action. In the first place, it is certain that a cause of action based upon the plaintiff's fraud may arise out of sucli a " transaction," for it may sjjring from a contract pure and simple. In the second place, as the "negotia- tion" or "business " or " conduct of affairs" may be concerned with property, with the title to or possession of land or chattels, it is easily conceivable that a distinct cause of action in favor of the defendant may arise out of a tort to property committed by the plaintiff in the course of the " business " or " negotiation " or " conduct of affairs," such as a claim for the taking or conver- sion of goods, or for a trespass to or wrongful detention of land. Indeed, the difficulty in conceiving of distinct torts arising from one and the same " transaction " is confined almost entirely to the cases of torts to the person. It may be noticed that most of the decisions alread}^ cited, in which the possibility of distinct torts having such a common legal origin is denied, directly relate to personal wrongs alone ; and the reasoning of the courts is extended from them to all torts, without any discrimination between their different classes, and the different rules which may govern them, § 770. The cases thus far cited have all been decided by courts of New York ; I shall now quote a few which have arisen in other 812 CIVIL REMEDIES. States. A complaint alleged tliat the plaintiff delivered certain flour to the defendant to be sold on commission, but that the latter had converted the same, or the proceeds thereof, to his own use, and prayed judgment for its value as damages. The answer set up the following facts as a counter-claim : that defendant had leased a flouring-mill to the plaintiff, who covenanted in the lease that he would furnish to defendant constant employment during the continuance of the term for two teams in drawing flour to Milwaukee at a stipulated sum for each load, and further cove- nanted that all the flour sent from the mill should be delivered to the defendant at Milwaukee, to be sold by him on commission, in pursuance of which agreement the flour mentioned in the com- plaint was in fact delivered ; that the plaintiff had neglected and refused to perform both of his said covenants, by reason of which the defendant had sustained damages to a specified amount, and judgment was demanded for such sum. A demurrer was inter- posed to this counter-claim, and was sustained by the Supreme Court of Wisconsin.^ This opinion, quoted at large in the note, necessarily leads to the conclusion that when the plaintiff has an election to adopt one or the other of two forms of remedy, one on the contract for the breach thereof, and the other in tort for a ^ Scliennert v. Kaehler, 23 Wis. 523, is the tort or wrong done in the conversion per Dixon C. J. : "Assuming that a coun- of tiie money; that is the foundation, ter-ciaim may be pleaded to an action of and tlie sole foundation, of the plaintiff's tort, — a question not necessary to be de- claim in this form of action ; for, unless cided, — and assuming also that no objec- the money was unlawfully converted, tion exists, because the contract for the the action cannot be maintained." The breach of which the defendant claims counterclaim was therefore held to be damages is not set forth in the complaint, inadmissible. See also, Akcrly r. Vilas, but that the counter-claim would be ad- 21 Wis. 88, 109, 110, which holds that niissible, if at all, under the last clause of the counter-claim must he di recti i/ con- the subdivision as being connected with nected with the subject of the plaintiff's the subject of the action, the question re- action, or so connected that a cross-bill solves itself into an inquiry as to the ori- would have been sustained, or a rccoup- gin of the cause of action stated in the nient allowed under the former practice, complaint, — whether it arises upon the when it is claimed to fall within the last contract set forth in the answer, or origi- clause of the first subdivision ; and Vilas nates in facts outside of and disconnected v. Mason, 25 Wis. 310, 821, where, in witii that contract. If the former, then an action brought upon a contract, — on the counter-claim would seem to be clearly a lease against the tenant, — a counter- within the statute; but, if tlie latter, then claim for the conversion of chattels which it would not be." The opinion states that the defendant hail placed upon the de- the plaintiff might have sued upon con- niised promises, was sustained, on the tract for a violation of it, or might have ground that both causes of action arose sued in tort for the wrong done him, and out of the same tran-saction ; also Ains- tliat he had chosen the latter form of ac- worth v. Bowen, 'J Wis. 348. tion, and adds ; " The subject of the action COUNTER-CLAIM. 813 conversion, and the like, the ability of the defendant to plead a counter-claim depends upon the kind of action selected ; in other words, the propriety of the counter-claim does not depend upon the actual facts out of which the plaintiff's remedial rights arise, but upon the mere nature of the remedy which he elects to en- force, and of the; means which he employs for such enforcement. The result would be, that by changing the kind of action the plaintiff may cut off a counter-claim otherwise admissible. In my opinion, it was not the intention of the legislature, in adopting the reformed procedure, that the essential rights of defendants should be made to rest in this manner upon the form of remedy chosen by the plaintiffs. § 771. In a case already quoted under a former head, an action brought to set aside a deed of lands on account of the defendant's fraud, to which a counter-claim was pleaded denying the fraud, alleging the validity of the conveyance, the plaintiff's continued possession of the land and pernancy of the rents and profits, and praying a judgment awarding possession, quieting title, and giv- ing damages, the Supreme Court of Indiana sustained the answer, and granted the relief demanded by the defendant.^ The same court has discussed the legal meaning of the phrases " arising out of " and " connected with," and has arrived at one general prin- ciple, at least, which may aid in determining their application to all particular cases. The action was to recover money deposited with the defendant who had refused to deliver it when demanded. 1 Woodruff V. Garner, 27 Ind. 4, per the plaintiff directly, and is therefore Frazer J. : " The plaintiff's cause of ac- autiiorized by the statute." The " trans- tion is the alleged fraud of tlie defendant action " set forth in the complaint was in procuring the deed sought to be re- not simply the alleged fraud : it was the scinded. The defendant's cause of action entire business or matter of agreeing to averred in the counter-claim does not sell and purchase the land, and of exe- arise out of the plaintiflF's cause of action, cuting and delivering the deed in pursu. for it cannot even exist consistently with ance of such agreement. The plaintiff it. If the fraud alleged by the plaintiff averred tliat the defendant was guilty of was perpetrated, then the defendant can- fraud ; and such fraud was therefore a not have any right of action whatever, part of the transaction, according to the So the defendant found it necessary to plaintiff's version. The defendant's cause deny the fraud. But the deed sought to of action arose out of the same transac- be set aside constitutes part of the trans- tion, — infact it it-os the entire transaction, action upon which the plaintiff and the except tlie element of fraud, wliich lie as- defendant both rely for a recovery. It is serted did not exist. No plainer illustra- the Hnk which forms the direct connec- tion of a cause of action arising out of tion between the two diverse causes of the transaction which was also the foun- action. So the counter-claim for possession dation of the plaintiff's claim could be is connected with the cause of action of imagined. 814 CIVIL KEMEDIES. The defendant pleaded by way of counter-claim that the plain- tiff had falsely charged him with stealing the money deposited, and had slandered him by uttering such charge in the presence of others, and prayed judgment for damages. In sustaining a demurrer to this answer the court suggested a rule of construc- tion which may be followed in all cases.^ The High Court of Appeals in Kentucky has construed the phrases " arising out of the transaction" and "connected with the subject of tlie action " in a very liberal and broad manner. An action was brought on an injunction bond given by T. and sureties. The plaintiff had originally commenced proceedings to obtain possession of a farm in the occupancy of T. T. had thereupon brought an equitable suit to restrain these proceedings, had obtained a preliminary in- junction, and had given the bond in question. The suit being dismissed, this action was brought on the bond, the plaintiff there- in claiming damages for being kept out of possession of the farm by means of the injunction during the continuance of the suit. The defendant T. pleaded a counter-claim, alleging that notwith- standing the injunction, and before it was dissolved, the plaintiff — the defendant in the injunction suit — wrongfully took pos- session of the land and seized the crops thereon, and converted the same to his own use, and demanding judgment for the dam- ages thus caused. At the trial the defendant had a verdict which was sustained on appeal.''' 1 Conner I'. Winton, 7 Ind. 523. "The made, they could have intended might, question is, Wliat is the legal effect of in some event, give one party a claim the words ' arising out of or ' connected against the otiier for compliance or non- with'? Do they refer to those matters compliance with its provisions. We refer which have an immediate connection with in this connection, of course, to actions tlie transaction? or do they include also ex cuntractu only. About actions for tort those which have a remote relation with it is not necessary to say anything at it by a chain of circumstances which were present." not liad in view at its incei)iion 1" Sup- - Tinsley v. Tinsley, 15 B. Mon. 454, pose C. [the defendant] had beaten W. 459, per Marshall J. " It is not required [the plaintiff] for uttering the slander, that the counter-claim itself sliall be could W. Jiave replied the damages oc- founded in contract, or arise out of the casioned by the battery to those resulting contract set forth in the petition : but it is from the slander ? and could the jiarties sufficient that it arise out of the trans- have settled ail their quarrels in tlie ac- action set forth in the petition, or be con- tion to recover the money ? We do not nected with the subject of tlie action. As think that the statute contemplates any the petition states the occupation of the such practice. A counter-claim is that land by Mrs. T. |tlie present defendant which might have arisen out of, or could and the plaintiff in the equity suit] during have had some connection with, the ori- the pendency of the injunction, and claims ginal transaction in the view of the parlies, damages therefor, any interference by the and which, at the time the contract was pluiutitt' which rendered such occupation COUNTER-CLAIM. 815 § 772. The New York Court of Appeals has passed upon the question, How far the form of the action chosen by the phiintiff, when he has an election to sue for a tort or on a contract, can affect the defendant's right to interpose a counter-claim, and has declared that it can produce no effect ; if the defendant would have been able to plead a counter-claim to a cause of action upon an implied promise, growing out of a certain state of facts, the plaintiff cannot, by adopting an action in form for a tort under the same circumstances, cut off or abridge this substantial privi- lege ; the chief design of the new procedure was to subordinate form to substance and not substance to form. An action was brought to compel the delivery of certain bills of lading, the plaintiffs alleging that the shipment was on their account, and that the goods and the bills of lading thereof belonged to them- selves, and were wrongfully detained by the defendants. The answer put these averments in issue, and also set up by way of counter-claim that, since the commencement of the action, the plaintiffs had wrongfully taken possession of the goods, and had converted the same to their own use, and prayed judgment for the value thereof. The court pronounced the defendants' demand to be a cause of action plainly arising out of the transaction set forth in the complaint, or at least connected with the subject of the action, being, as it was, for the value of the very goods which the plaintiffs sought to reach, and added the following : " I do not think it lies with the plaintiffs to allege that their taking was a mere tort for the purpose of defeating the counter-claim. And, even if an action sounding in tort might be maintained by the defendants for the taking, I am still of opinion that the cause of action for the value of the goods would constitute a good counter- claim in such a case as this." ^ § 773. I shall end this particular branch of the subject by quoting from a very able and instructive decision made by the less profitable or less valuable to tbe oc- to property was held to be a proper coun- cnpant constituted a cause of action aris- ter-claim in an action on contract, ing out of tlie transaction set forth in the i Thompson v. Kessel, 30 N. Y. 383, petition, and is connected with the plain- 389, per Johnson J. The same doctrine tiff's cause of action ; and although it has been recently approved and enforced, amount to a trespass or other tort, it may after an exhaustive examination of the constitute the ground of a counter-claim." authorities by the Supreme Court of In Wadley v. Davis, 63 Barb. 500, the Missouri, in Gordon v. Bruner, 49 Mo. same principle was approved and fol- 670, 571, per Bliss J., supra, § 609 n. lowed; and a demand arising from tort And see Brady v. Brennan, 25 Minn. 210. 816 CIVIL REMEDIES. Superior Court of New York City, in which the statutory defini- tion was fully analyzed as to all its parts, and an attempt was made to reach the basis of a true interpretation. The action was brought to recover damages for the wrongful conversion of cer- tain bills of exchange. The plaintiffs had been the owners of the bills which were drawn by divers persons ou different payees ; they indorsed the same and delivered them to the Ohio Life Insurance and Trust Company, for the purpose of collection only ; this company transferred them to the defendants, who now retain them ; it was alleged that the defendants took the bills with notice of all these facts, and were not holders in good faith for value. The complaint stated a demand and refusal, an un- lawful detention and conversion, and demanded judgment for the value of the securities as damages ; it was strictly for an alleged tort. The answer was pleaded as a counter-claim. It set up the drawing of the bills, their indorsement by the plaintiffs, their delivery to the Ohio Trust Company, their transfer to the defend- ants for full value and without notice, demand of payment, non- payment and notice thereof to the plaintiffs, and prayed judg- ment against the plaintiffs as indorsers for the amount due on the drafts. In other words, it was like an ordinary complaint in an action by the indorsees against the indorsers to recover the sum due on a bill or note. A motion to strike out this counter-claim was denied at the special term, and the plaintiffs appealed to the general term, which, after stating the facts and the questions presented by the record, and reciting the two subdivisions of § 150 of the New York Code, pronounced the opinion found in the note.^ 1 Xenia Branch Bank v. Lee, 7 Abb. division would therefore be unmeaning Pr. 372, 389, per Woodruff J. : " Tliis as a separate definition, if it neither con- division of the section shows that there templated cases in which the action was may be a counter-claim when the action not brought on the contract itself in the itself docs not arise on contract; for the Sense in which these words are ordinarily second clause is expressly confined to used, nor counter-claims whicli did not actions arising on contract, and allows themselves arise on contract. The first counter-claims in such cases of any other subdivision, by its terms, assumes that tlie causes of action also arising on contract ; plaintiff's complaint may set forth, as the and this may embrace, probably, all cases foundation of the action, a ' contract ' or heretofore denominateii " set-off," legal a ' transaction.' The legislature, in using or equitable, and any other legal or equi- both words, must be assumed to have table demand liquidated or unliquidated, designed that each should have a mean- whether within tlie proper definition of ing ; and, in our judgment, their coiistruc- set-off or not, if it arise on contract. Glea- tion should be accordini] to the natural and ton V. Moen, 2 Duer, 642. Tlie first sub- ordinary signification of the terms. In this COUNTER-CLAIM. 817 § 774. While the foregoing decisions do not furnish any general formulas for determining in all cases what is the " transaction " set forth in the plaintiff's petition or complaint, or what is the "subject of the action," or when the defendant's cause of action sense, every contract may be said to be a transaction ; but every transaction is not a contract. Again, the second sub- division iiaving i)rovided for ail counter- claims arising on contract, and all actions arising on contract, no cases can be sup- posed to wliicli ilie first subdivision can be applied, unless it be one of three classes ; viz., 1st. In actions in which a contract is stated as the foundation of the plaintiff's claim, counter-claims which arise out of the same contract ; or, 2d. In actions in which some transaction, not being a contract, is set forth as the foun- dation of tlie plaintiff's claim, counter- claims which arise out of the same trans- action ; or, 3d. In actions in which either a contract, or a transaction which is not a contract, is set forth as the foundation of tlie plaintiff's claim, counter-claims which neither arise out of the same contract nor out of the same transaction, but which are connected with the subject of the ac- tion." After some discussion upon the difference between the provision in the first subdivision and that in the second subdivision in reference to actions and counter-claims based upon contract, in wliich he points out that, in the former, the language is " contract which is the fonndaiion of the plaintiff's claim," and, in the latter, " actions arising on contract," and that this language appropriately ap- plies, in the first subdivision, to certain classes of actions in which a contract is the foundation of the plaintiff's claim, although the action does not strictl)' arise on the contract, and, in the second subdi- vision, to all those actions which are strictly brought on the contract, — the learned judge proceeds with the main subject : " Cut, secondly, the subdivision authorizes in actions in which a trans- action, not being a contract, is set forth as the foundation of the plaintiff's claim, counter-claims which arise out of the same transaction. Tliis, we think, in- cludes the case before us. The ' trans- action' here in question may either in- clude the history of the bills, so far as the title of the plaintiffs or defendants depends upon that history ; or the ' transaction ' may, perhaps, be confined to the manner and circumstances of the transfer to the defendants." The opinion recapitulates the facts of the case, and shows that, giving to the term " transaction " the first of these two meanings, the defendants' cause of action arose out of it, and adds a ver^' important suggestion which had been overlooked in some of the decisions heretofore cited : " Some facts enter into the plaintiff's case which do not enter into the defendants' case, and i-ice versa. But, from the nature of tlie subject, this must always be so. The legislature were not so absurd as to mean that the defend- ant might counter-claim when the very facts alleged by him, with all their partic- ulars, were identical with those alleged by the plaintiff. . . . So, if the transaction set forth as the foundation of the plaintiff's claim be regarded as more narrow, and as being the transfer of the bills by the Ohio Trust Company to the defendants, then, as before, the defendants' counter-claim arises out of tlie same transaction ; to wit, the transfer. The circumstances that the defendants have to superadd an allegation of demand, protest, and notice to the plaintiffs as indorsers, does not alter the case. This added fact is only a means of showing how the defendants' cause of action arises out of he transac- tion relied upon, and is made complete." Finally, Mr. Justice Woodruff reaches the conclusion that, even if the defend- ants' cause of action does not arise out of the " transaction " set forth in the com- plaint, it " is directly and immediately connected with the subject of the action. The subject of the action is either the right to the possession of the bills of ex- change, or it is the bills themselves. The defeijdants* counter-claim is not only con- nected with, but is inseparable from, either or both. The ohjrct of the action is damages ; but the subject is the bills of exchange, or the right to their posses- sion." 52 818 CIVIL REMEDIES. "arises out of the transaction set forth in the complaint," or when it is " connected with the subject of the action," they do throw some light upon the true intent of the legishiture in using these phrases, and they settle some princijjles which, when properly applied, may assist in constructing the universal rules so much needed by the profession and the bench. It is very evident that there has existed in the minds of judges a radical difference of opinion in respect to the import of the controlling terms of the stat- utory definition, and especially in respect to the word " transac- tion." One school would narrow its meaning so as to deprive it of all separate significance in the clause where it is found. They would make iteither synonymous with "contract," or would regard it as being merely the very cause of action which the plaintiff" has alleged in his pleading as the ground of recovery. The other school give to the word a broader and more comprehensive mean- ing. £x vi termini it imports something different from " con- tract," and is to be taken in its ordinary and popular sense. It is more extensive than " cause of action " or " subject of the action ; " for out of it the defendant's " cause of action " is said to " arise," and it is also to be set forth in the complaint or peti- tion, not as the " cause of action," but as the " foundation " of the plaintiff's claim. It must, therefore, be something — that combination of acts and events, circumstances and defaults — which^ viewed in one aspect, results in the plaintiff's right of action, and^ viewed in another aspect, results in the defendant's right of action. As these two opposing rights cannot be exactly the same, it fol- lows that there may be, and generally must be, acts, facts, events, and defaults in the transaction as a whole, which do not enter into each cause of action, but are confined to one of them alone.^ § 775. In regard to what constitutes the " subject of the action," there is no agreement whatever in the judicial opinions. Some of them have treated it as identical with the " cause of 1 The reader should consult the anal}'- repeat in the text the former full discus- sis of cases, and the discussion in relation sion ; but it is plain that the decisions to the same word given in a former chap- there cited, and tiie results tliere reached, ter (Cliap. III., ISec. 2). The language apply with equal force to the questions of the clause there under examination is now under consideration. There is an almost identical with that of the present evident connection between the subject passage; and the same meaning must, of of uniting causes of action in one corn- course, be attributed to the words " trans- plaint, and the uniting them in one con- action " and " subject of the action" in troversy, although they are set forth in both sections of the statute. I do not the adverse pleadings. COUNTER-CLAIM. 819 action," which is plainly incorrect. As I have already shown, the " cause of action " consists in, 1st, the primary right, and the facts from which it flows ; and, 2d, the breach of that right, and the facts constituting such breach. These taken together create a remedial right, and are the cause of action. The remedy itself is certainly the "object" of the action. The "subject" is cer- tainly not the cause of action : but when we have reached this conclusion we find very little judicial aid in arriving at any other and more affirmative one. Some judges have said that in all possessory actions, and all actions to establish property, the " subject of the action " denotes the things to assert a right over which, or to obtain the possession of Avhich, the action is brought, as the land in ejectment and in many equity suits, or the chat- tels in replevin. Some have said that the "subject" denotes the same in other classes of actions, not brought to recover pos- session or expressly to establish title, but in which, nevertheless, the plaintiff's right to recover is based upon his property in a specific thing, as for the conversion of chattels, or for trespass to lands or chattels ; while some have applied the same principle to actions not based upon any alleged pro-perty of the plaintiff in a specific thing, and have gone to the extent of holding that, in actions upon contract to recover the debt due or damages for the non-performance thereof, the " subject " is the very contract itself, — the instrument in suit, as, for example, in an action upon a bill or note, the " subject," according to this view, would be the bill or note sued upon. Other judges have said that the " sub- ject " is the right which is sought to be enforced in the action ; meaning thereby the primary right, which has been infringed upon as distinguished from the remedial right, and from the delict and the remedy. Thus in the case last quoted, which was an action for the conversion of bills, Mr. Justice Woodruff declared that the subject was either the bills themselves, or the plaintiff's original right to their possession. It would, as it seems to me, be correct to say in all cases, legal or equitable, that the " subject of the action " is the plaintiff's main primary right which has been broken, and by means of whose breach a remedial right arises. Thus, the right of property and possession in ejectment and replevin, the right of possession in trover or trespass, the right to the money in all cases of debt, and the like, would be the "subject" of the respective actions. Although in a certain 820 CIVIL REMEDIES. sense, and in some classes of suits, the things themselves, the land or chattels, may be regarded as the " subject," and are some- times spoken of as such, yet this cannot be true in all cases ; for in many actions there is no such specific thing in controversy over which a right of property exists. The primary right, however, always exists, and is always the very central element of the con- troversy around which all the other elements are grouped, and to which they are subordinate. In possessory and proprietary actions, this right, which will then be always one of property or of possession, will be intimately associated with the specific thing itself which is the object of the right ; but this relation is not and cannot be universal. It seems, therefore, more in accordance with the nature of actions and more in harmony with the lan- guage of the statute to regard the " subject of the action " as denoting the plaintiff's principal primary right to enforce or main- tain which the action is brought, than to regard it as denoting the specific thing in regard to which the legal controversy is car- ried on. In this manner alone can we arrive at a general rule applicable to all possible cases, and the rule thus reached fully satisfies all the requirements of the legislative language, and can be invoked in all classes of actions. While I suggest and adopt this meaning of the term "subject,"! freely concede that no decision, so far as I have discovered, pronounces this interpreta- tion to be the only one admissible ; many cases sanction it, none directly reject it ; but none, on the other hand, have gone so far as to declare in its favor to the exclusion of all other meanings. The construction proposed, as it has been judicially approved in many instances, would remove all doubt and conflict of opinion, and would furnish a simple and practical rule of universal appli- cation. § 776. In respect to the phrase " connected with " the subject of the action, one rule may be regarded as settled by the deci- sions, and it is recommended by its good sense, and its conve- nience in practice. The connection must be immediate and direct. A remote, uncertain, partial connection is not enough to satisfy the requirements of the statute. The criterion proposed by the Supreme Court of Indiana in one of the cases cited is as certain and practical as the nature of the subject admits, and only needs to be known to be universally accepted. It is, that tlie connec- tion must be such that the parties could be supposed to have COUNTER-CLAIM. 821 foreseen and contemplated it in their mutual acts ; in other words, that the parties must be assumed to have had this connection and its consequences in view when they dealt with each other. I now pass, according to the order already stated, to the three branches into which the subject-matter is naturally separated. I. Cases in which the Cause of Action alleged as a Counter-claim arises out of the Contract set forth in the Complaint or Petition as the Foundation of the Plaintiff'' s Claim. § 777. Mr. Justice Woodruff, in the opinion last quoted, de- clares that the second subdivision of the definition was intended to embrace all cases in which the plaintiff's cause of action arises on contract, and the defendant's counter-claim also arises on con- tract, either the same or another, and that the clause of the first subdivision above mentioned was designed to include only those cases in which the contract is set forth by the plaintiff as the foundation of his action, although the action itself is not 07i the contract. This is, I think, attributing too much nicety and pre- cision of thought to the legislature, and assumes that it would never enact any duplicate provisions. The first subdivision no doubt covers the cases mentioned bv Judge Woodruff, but it also embraces many others. Undoubtedly, the codifiers and the legis- lature in drawing and adopting the first subdivision had in mind the doctrine of recoupment, and so framed the language that it should include cases of recoupment and all others, legal and equi- table, analogous to it, — that is, all cases in which the right of action of the plaintiff and that of the defendant arise from the same contract. It describes, therefore, not only the special and infrequent classes of instances in which the plaintiff's claim is not technically on the contract, although a contract is set forth as its foundation, but also all other instances in which the plaintiff's action is strictly brought on the contract, while the defendant's counter-claim in both cases arises from the same contract. The central idea of this subdivision then is, that one and the same contract is the basis of both parties' demand for relief. Passing to the second subdivision, the central thought is equally plain, viz., that the plaintiff's cause of action, and that of the defend- ant, spring from different contracts ; in other words, the codifiers and the legislature had in mind the familiar case of set-off, both 822 CIVIL REMEDIES. legal and equitable. But, in framing the clause, the language was made broader than was necessary, and it actually covers all cases in which the plaintiJEf 's cause of action is on contract, and the defendant's counter-claim is also on contract the same or another. The law-makers have thus in fact given us two provi- sions authorizing a counter-claim arising from the same contract as that from which the plaintiff's cause of action results, but only one authorizing a counter-claim springing from another contract than the one upon which the plaintiff's demand is based. The same case may therefore be often referred to both of these sub- divisions ; but I shall, following what seems to be the plain design of the statute, consider under the first all those instances in which the demands of both parties arise from the same con- tract, and postpone to the second all those in which each demand arises from a separate contract. That this is the correct construc- tion of the whole provision is made certain, when we turn to the form which it assumes in all the codes which constitute the sec- ond group according to the classification stated at the commence- ment of this section. 1 § 778. It may be stated as a general proposition that in all actions to recover a money judgment, debt or damages, upon a contract, or where a contract is set forth as the foundation of the plaintiff's claim, a counter-claim of a money judgment against the plaintiff for his breach or non-performance of any stipulations of the same agreement, or for his fraud in procuring the same to be entered into, is admissible. The following examples will illus- trate this proposition. In an action for rent brought by the lessor or by the grantee of the reversion against the lessee or an assi(j:nee of the term, where the lease contains a covenant to repair on the part of the landlord, damages sustained by the de- fendant from a breach of this covenant may be alleged, and 1 The following recent decisions give Townsend, 7 id. .375; Griffin i;. Moore, examples and illustrations of counter- 52Ind.205; McMahan r. Spinning, 51 id. claims aiising out of the contract, &c. : 187; Ilinkle v. Margerum, 50 id. 240; More V. Kand, 60 N. Y. 208, 214 ; King v. Black v. Elmer, 54 id. 544 ; Morrison v. Knapp, 5!) id. 400 ; Boyd v. Schlesinger, Kramer, 58 id. 38 ; Howe Machine Co. v. 59 id. 301, .'305, Howard v. Johnston, 82 Reber, 06 id. 489; Merrill r. Nightingale, id. 271 ; Nat. Bk. of Auburn ;;. Lewis, 81 .39 Wis. 247 ; Bonnell v. Jacobs, 80 id. 59; Id. 15; Cook v. Jenkins, 79 id. 575; Croumger i-. Parze, 48 id. 229 ; Caleb v. Levy i;. Loeb, 85 id. 365 ; Read v. Decker, Morgan, 83 N. C. 211 ; Craig v. Heis, ,30 5 Hun, GIO ; Morgan v. Smith, 5 id. 220; Ohio St. 550 ; Hade c. McVay, 31 id. 231 ; Elwell V. Skiddy, 8 id. 73 ; Nichols v. Fraker v. Callum, 24 Kans. 679. COUNTER-CLAIM. 823 recovered as a counter-claim. The damages in one such case, where the demised premises were a hotel, were held to be the sum paid by the defendant for making the necessary repairs, together with the amount of loss occasioned by the inability to use certain rooms in the hotel while they were out of repaii'.^ In an action by the buyer against the seller to recover damages for the non-delivery of goods bargained and sold, the latter may counter-claim the unpaid price of that part of the goods already delivered under the contract.^ When sued for the price of two articles sold under one agreement, the defendant may set up and recover damages resulting from the fraudulent representations of the plaintiff in respect to one of them, even though such damages exceed in amount the whole price agreed to be paid for both.^ A person having sold his business and good-will at a certain price, and having covenanted in the same agreement not to engage therein at the same place, and the damages for a breach of this covenant having been liquidated and fixed at a specified sum, in an action brought by the vendee to recover this amount of liqui- dated damages on the ground that the vendor had violated his agreement, the defendant Avas permitted to recover the unpaid portion of the purchase price as a counter-claim.* § 779. It is settled by numerous decisions, although there were at first some expressions of a contrary opinion, that in an action to recover the price of goods #old and delivered, or bargained and sold, the purchaser's demand of damages for the plaintiff's breach of his warranty of the quality of the goods may be pleaded as a counter-claim ; in fact, there can be no simpler and plainer illustration of a counter-claim arising out of the very contract set up by the plaintiff as the basis of his recovery.^ When the plain- 1 Myers v. Burns, 35 N. Y. 269; Cook grounds of recovery or defence ; and proof V. Soule, 56 N. Y. 420; 1 N. Y. S. C. 116; of one cannot be given when the other Benkard v. Babcock, 2 Robt. 175. alone is pleaded, Dudley v. Scranton, 57 - Leavenworth v. Packer, 52 Barb. N. Y. 424, 427. 132, 136. 4 Baker v. Connell, 1 Daly, 469 ; and 3 Rawley v. Woodruff, 2 Lans. 419, see Ainsworth v. Bowen, 9 Wis. 348. and see Hoffa v. Hoffman, 33 Ind. 172, 5 Lemon v. Trull, 13 How. Pr. 248; where damages from fraud were counter- Warren v. Van Pelt, 4 E. D. Smith, 202; claimed in a foreclosure suit. When, in Dounce v. Dow, 57 N. Y. 16; Love v. an action on a contract, the defendant set Oldham, 22 Ind. 51; French v. Saile, up a counter-claim of damages from the Stanton's Code (Ky.), 96; Morehead v. plaintiff's fraud, he cannot, at the trial, Halsell, ib. 96; Earle v. Bull, 15 Cal. 421; rely upon a mistake in making the agree- Hoffa r. Hoffman, 33 Ind 172. See contra, meut : fraud and mistake are distinct Nichols ;;. Boerum, 6 Abb. Pr. 290. This 824 CIVIL KEMEDIES, tiff, who had been employed as a superintendent of the defend- ant's manufactory under a written agreement stipulating for his services in that capacity at a specified salary for a year, brought an action for his wages, alleging that he had been wrongfully discharged, a counter-claim of damages sustained by the de- fendants in their business, through the negligent and unskil- ful conduct of the plaintiff in violation of the provisions of the same contract, was pleaded, and was fully upheld by the court.^ § 780. I have collected and placed in the foot-note a number of additional cases in which the answers were sustained as valid counter-claims on the ground that they arose out of the contract set forth in the complaint or petition ; in some of them, however, the court merely said that they arose either from the " contract or transaction set forth " by the plaintiff, and did not distinctly determine which of these expressions was strictly the proper one to be used. 2 case lias been expressly overruled. See also Nichols v. Townsend, 7 Hun, 375, citing Gurney v. Atlantic, &c. R. R., 58 N. Y. 358; Bounce v. Dow, 57 id. 16; Day V. Pool, 52 id. 416 ; Merrill v. Night- engale, 39 Wis. 247 ; Bonnell v. Jacobs, 36 id. 59 ; Giffert v. West, 33 id. 617. 1 Lancaster, &c. Man. Co. v. Colgate, 12 Ohio St. 344 ; Stoddard v. Treadwell, 26 Cal. 294. But see Barker v. Knicker- bocker Life Ins. Co., 24 Wis. 630, in which, under exactly similar circum- stances, the defendant's claim that the contract should be cancelled was refused, on the ground that the facts made out a perfect defence at law ; but no counter- claim of damages was pleaded. 2 Racine Bank v. Keep, 13 Wis. 209; Butler !•. Titus, 13 Wis. 429 ; Koempel v. Shaw, 13 Minn. 488 ; Gicadell v. Thomson, 50 N. Y. 194, 198; Isham »;. Davidson, 62 N. Y. 237 , Whalon v. Aldrioh, 8 Minn. 346; Mason v. Ileyward, 3 Minn. 182; Dale i;. Masters, Stanton's Code (Ky.), 97; Dennis 1-. Belt, 30 Cal. 247; Wilder V. Boynton, 63 Barb. 547 ; Burton v. Wilkes, 06 N. C. 604, 610 ; Hay v. Short 49 Mo. 139. See McKegney i'. Widekind, 6 Bush, 107, as to the extent of the relief which may be granted to the defendant in a legal action, and when the contract must be reformed by an equitable pro- ceeding. For examples of valid counter- .jjjclaims where the defendant had an election to sue for a tort or on contract, see Gordon v. Bruner, 49 Mo. 570; Tins- ley V. Tinsley, 15 B. Mon. 454; Norden r. Jones, 33 Wis. 600, 604; but per con- tra, see Slayback v. Jones, 9 Ind. 470. Damages resulting to the defendant from a wrongful issue of an attachment in the action may be (counter-claimed, if such act of the plaintiff was a breach of the contract sued on, Waugenheim v. Graham, 39 Cal. 169, 176 ; but such damages cannot generally be recovered by way of a coun- terclaim, Ilembrock v. Stark, 63 Mo. 588 ; Nolle V. Tliompson, 3 Mete. (Ky.) 121. A counter-claim of damages from a per- sonal tort, as e. , per Paine J., counter-claim First Nat. Bank, 17 Minn. 35 ; Emmer- of damages for non-performance of a build- son's Administrator y. Herriford, 8 Bush, ing contract by tlie builder ; Bidwell v. 229, and cases cited ; Woody v. Jordan, Madison, 10 Minn. 13, action by a bank on 69 N. C. 189, 197. For an example of a note, counter-claim of damages from the tliis species of counter-claim or set-off, see negligence of the bank in not collecting MulU'ndore v. Scott, 45 Ind. 113 ; Curtis another note left with it for collection ; v. Barnes, 30 Barb. 225, action for goods Louisville, &c. II. II. v. Thompson, 18 B. sold, counter-claim of damages from the Mon. 735, 742, action by a railroad to re- breacii of an arbitration bond, cover stock-subscription, counter-claim of - See e. (/., Evens v. Hall, 1 Handy, damages from a breach of an agreement 434 (Cincinnati Sup. Ct. at Sp. Terra), to pay for land taken by the railroad ; Tiiis construction is given to the provi- Williams v. Weiting, 3 N. Y. Sup. Ct. sion in Nebraska ; it is held that a claim 43'J, 440, action by a veterinary surgeon for unliquidated damages oven on con- to recover for professional services ;coun- tract cannot be set off under a clause ter-claim, that defendant bought a span of identical with the second subdivision in horses, relying upon plaintiff's knowledge the codes of the first group. Boyer v. and recommendation, uud promise to pay Clark, 3 Neb. 101, 108, 169. for them if they were not good, &c.,— ^ Schmidt v. Coulter, 3 Minn. 492. COUNTER-CLAIM. 839 by plaintiffs in stating their causes of action. All the facts con- stituting the cause of action must be averred in the same manner and with the same degree of particularity as would be requisite were the pleading a complaint or petition.^ § 799. In an action on an ordinary contract the defendant may set up as a counter-claim a judgment which he has recovered against the plaintiff, and this without leave first obtained from the court, where such leave is necessary in order to sue on tlie judgment.^ The doctrine also applies to those rights of action which, although allowed only by statute, are regarded as arising on an implied promise, and under the old system would have been enforced by an action ex contractu. As, for example, where the plaintiff sued to recover back money lost by a wager and paid to the defendant, a counter-claim of a similar demand against the plaintiff, originally in favor of a third person and duly assigned to the defendant, was sustained by the New York Supreme Court.^ It is now established in opposition to some of the earlier deci- sions which have been expressly overruled, that a demand grow- ing out of the unsettled partnership transactions between the plaintiff and defendant may be pleaded as a counter-claim. It is necessary, however, that the defendant should not only aver the existence of such unsettled transactions and ask an accounting, but allege that upon such accounting a balance will be found due him from the plaintiff, and he must demand judgment therefor. Withotit the averment of such a balance, the counter-claim will be bad on demurrer.* § 800. An executor de son tort becomes liable to those inter- ested in the estate to the extent of the value of the property which he appropriated ; this is not the liability of a mere tort- feasor towards the owner of the thing injured : it is the same liability which flows from the ordinary trust relation of executor towards the creditors and legatees, enforceable by actions of ac- counting, &c. It has been held, therefore, that such responsi- bility of the plaintiff may be interposed as a counter-claim by a 1 Holgate V. Broome, 8 Minn. 243, a * Hendry i-. Hendry, 82 Ind. 349; counter-claim lield bad because defendant Waddell r. Darling, 51 N. Y. 327, 330; did not state his cause of action for goods Clift v. Northrup, 6 Lans. 330 ; per contra, sold and delivered with sufficient fulness. Hammond v. Terry, 3 Lans. 186 ; Ives v. 2 Wells t;. Henshaw, 3 Bosw. 625; Miller, 19 Barb. 196; Iliff v. Brazill, 27 Clark V. Story, 29 Barb. 295. Iowa, 131 ; Haskell v. Moore, 29 Cal. 8 McDougall V. Walling, 48 Barb. 364. 437. 840 CIVIL EEMEDIES. defendant sued on contract, when he is a creditor of the estate with which the plaintiff has wrongfully intermeddled. ^ An action by a pledger of stocks against the pledgee, to recover damages for their wrongful sale at private sale and without notice, has been said to be on contract and not for conversion, and for that assigned reason a counter-claim based upon another contract was held admissible.^ § 801. It may be regarded as a doctrine established by the overwhelming weight of authority, that, whenever by the prin- ciples of the law, independent of the new procedure, a cause of action may be treated as arising either from tort or on contract, 1 McKenzie v. Pendleton's Adminis- trator, 1 Bush, 164. As a general rule, when a receiver, executor, administrator, or trustee, sues to recover a debt due to the estate in his hands, a demand of the defendant for services rendered on tlie employment of the plaintiff beneficial to the estate is a good counter-claim, Davis V. Stover, 58 N. Y. 473. ~ Seaman v. Keeve, 15 Barb. 454. The following cases give a construction to the language of the clause defining " set- off " as it is found in the second group of codes : Evens v. Hall, 1 Handy, 434 ; Smead v. Chrisfield, 1 Disney, 18 ; An- thony V. Stinson, 4 Ivans. 211 ; Collins v. Groseclose, 40 Ind. 414, 416; Curran v. Curran, 40 Ind. 473, 480-484, and cases cited ; West v. Moody, 33 Iowa, 137, 139 ; Remington r. King, 11 Abb. Pr. 278; Williams v. Brown, 2 Keyes, 486 ; Schief- felin V. Hawkins, 1 Daly, 289 ; Berry v. Brett, 6 Bosw, G27 ; Roberts u. Carter, 38 N. Y. 107 ; Miller v. Florer, 15 Ohio St. 149; Stanberry v. Smythe, 13 Ohio St. 495 ; Ross v. Johnson, 1 Handy, 388 ; McCuUough I'. Lewis, 1 Disney, 564 ; Mortland v. Holton, 44 Mo. 58 ; Jones v. Moore, 42 Mo. 413; Lamb v. Brolaski, 38 Mo. 51 ; Kent v. Rogers, 24 Mo. 306 ; Brake v. Corning, 19 Mo. 125 ; Mahan v. Ross, 18 Mo. 121 ; Pratt v. Menkens, 18 Mo. 158 ; House v. Marshall, 18 Mo. 368 ; Smith V. Steinkamper, 16 Mo. 150 ; Griffin V. Cox, 30 Ind. 242; Blew v. Hoover, 30 Ind. 450; Stilwell v. Chappell, 30 Ind. 72; Grossman v. Lauber, 29 Ind. 618; Lewis V. Sheaman, 28 Ind. 427 ; Dayhuff V. Dayhuff's Administrator, 27 Ind. 158; Sayres v. Linkart, 25 Ind. 145; King v. Conn, 25 Ind. 425; Keightley v. Walls, 24 Ind. 205 ; Durbon v. Kelly's Administra- tor, 22 Ind. 183 ; Indianapolis, &c. R. R. v. Ballard, 22 Ind. 448 ; Fankboner i-. Fank- boner, 20 Ind. 62 ; Shannon v. Wilson, 19 Ind. 112; Schoonover v. Quick, 17 Ind. 196 ; Irish v. Snelson, 16 Ind. 365; Reilly V. Rucker,16 Ind. 303 ; Knouer v. Dick, 14 Ind. 20 ; Fox t-. Barker, 14 Ind. 309 ; Bool V. Watson, 13 Ind. 387 ; Turner v. Simp- son, 12 Ind. 413 ; Blankenship v. Rogers, 10 Ind. 333 ; Johnson v. Kent, 9 Ind. 252 ; Lovojoy V. Robinson, 8 Ind. 399; Wood- ward V. Laverty, 14 Iowa, 381 ; Cook v. Lovell, 11 Iowa, 81 ; Campbell v. Fox, 11 Iowa, 318 ; Eyre v. Cook, 10 Iowa, 586 ; Stadler i\ Parmelee, 10 Iowa, 23 ; Dona- hue V. Prosser, 10 Iowa, 276 ; Reed v. Chubb, 9 Iowa, 178; Sample v. Griffith, 5 Iowa, 376 ; Davis v. Milburn, 3 Iowa, 163 ; Dorsey v. Reese, 14 B. Mon. 157 ; Lansdale v. Mitchell, 14 B. Mon. 350; Clark V. Finnell, 16 B. Mon. 337; Graham v. Tilford, Stanton's Code, 98; Thatcher v. Cannon, 6 Bush, 541 ; Ever- sole V. Moore, 3 Bush, 49 ; Haddix v. Wilson, 3 Bush, 523 ; Miller v. Gaither, 3 Bush, 152 ; Brown v. Phillips, 3 Bush, 656; Taylor v. Stowell, 4 Mete. 175; Shropshire v. Conrad, 2 Mete. 143 ; Geoghegan v. Ditto, 2 Mete. 4.33 ; Finnell V. Nesbitt, 16 B. Mon. 854 ; Naglee v. Palmer, 7 Cal. 543 ; Hobbs v. Duff. 23 Cal. 596; Russell v. Conway, 11 Cal. 93; Naglee v. Minturn, 8 Cal. 540 ; Marye v. Jones, 9 Cal. 335 ; Howard v. Shores, 20 Cal. 277 ; Collins v. Butler, 14 Cal. 223 ; Lubert v. Chauviteau, 3 Cal. 458 ; Ricket- son V. Richardson, 19 Cal. 331; Corwin V. Ward, 35 Cal. 196. COUNTER-CLAIM. 841 and the party holding the right may elect between the two kinds of remedial proceeding, and does in fact elect to sue on contract, the demand thus determined to be upon contract may be counter- claimed against a plaintiff's cause of action arising on another contract, or when itself set up by a plaintiff, it may be opposed by a counter-claim arising out of another contract.^ The only question of doubt in the practical application of this doctrine relates to the necessity of indicating the election in the pleading itself; or, in other words, whether the demand may not be thus used as a counter-claim, or against a counter-claim, even though the pleading contains no averments showing the election to have been actually made. While the courts have generally sustained this doctrine, they are not absolutely unanimous. The Supreme Court of Minnesota holds that the code has abolished this rule and the right of electing between the different forms of action ex contractu and ex delicto; or, rather, has destroyed all possibility of the advantage which could once have been derived under the circumstances above mentioned from such an election.^ This opinion is based upon a close and logical adherence to the letter and to the spirit of the code, which require that the facts consti- tuting the cause of action should be averred in a pleading, and abolish all forms of action. § 802. In all the foregoing examples the actions were legal. Some illustrations will now be given of those that are equitable. Many species of equitable actions may arise on contract within the meaning of the statute, and equitable remedies may thus be obtained as counter-claims under the second branch of the defini- tion. A suit was brought to compel the conveyance of laud alleged to be held by the defendant in trust for the plaintiff. The defendant was a lawyer, and the plaintiff had been his client. As such attorney, he had agreed, it was said, to bid in the land at a public sale, and to hold it for the plaintiff: he did, in fact, purchase it in his own name, but retained it for himself, and re- fused to convey. In his answer to these allegations, the defend- ant, besides denials, pleaded, as a counter-claim, a debt due from the plaintiff for professional services in relation to this and other matters. Evidence to sustain this counter-claim was rejected at the trial, for the reason that the defendant had forfeited all claim 1 See Norden i'. Jones, 33 Wis. 600, 604. 2 Folsom v. Carli, 6 Minn. 420. See Ogilvie v. Lightstone, 1 Daly, 129. 842 CIVIL REMEDIES. to compensation on account of his fraudulent practices. The Superior Court of New York City, in reversing this decision, held, that, as the action was on contract, the counter-claim was admis- sible, and, even if the defendant had been guilty of wrong in one matter, his right to compensation in respect of other matters was not affected ; also, that, on the facts as proved, he had committed no fraud or breach of his fiduciary duty in the instances charged against him.^ In an action to foreclose a purchase-money mort- gage, it is well settled that the mortgagor may interpose a coun- ter-claim for the damages sustained by him from the breach of covenants in the plaintiff's deed of conveyance. Both causes of action arise from contract, though from different contracts.^ § 803. The counter-claim of a money demand on an indepen- dent and separate contract may be interposed in the action to foreclose any mortgage of land, purchase-money, or other, by the mortgagor or defendant personally liable for the mortgage-debt, and against whom a decree for a deficiency could be rendered : in respect to such defendants, both causes of action arise on con- tract, and the recovery on the counter-claim directly interferes with that on the complaint. In respect to other defendants who are not parties nor privies to the contract of mortgage, but v/hose liens, or incumbrances, or rights of property in the land are sim- ply cut off by the decree, it may well be doubted whetlier the cause of action in the foreclosure suit can be said to arise on contract. This question was recently passed upon by the New York Court of Appeals ; and the doctrine above stated was fully sustained, and made the basis of decision.^ IV. Some 3fisceUaneou8 Provisioyis in Relation to Counter- claims. § 804. As a counter-claim is always a separate and indepen- dent cause of action, which the defendant may enforce against the plaintiff, is he obliged to avail himself of it when sued ? Or may he omit to set up the demand in his answer, and make it the 1 Currie i'. Cowlcs, 6 Bosw. 452. See Wis. 522; Lowry v. Hurd, 7 Minn. 356, also Judaii V. Trustees, &c., 16 Ind. 56. 363 ; Coy v. Downie, 14 Fla. 544, 562. 2 Eatonr.Tailmatre,22 Wis. 526, 528; » Hunt v. Chapman, 51 N. Y. 555, Akerly v. Vilas, 21 Wis. 88, 109 ; Hall v. 557. See also ClmrUon v. Tardy, 28 Ind. Gale, 14 Wis. 64 ; Walker v. Wilson, 13 462. COUNTER-CLAIM. 843 subject of another action brought by himself? In other words, is the opportunity thus furnished by the codes to try and deter- mine his own claim in the prior suit figainst himself a bar to his subsequently maintaining a second suit for the purpose of deter- mining the issues which might have been so disposed of in the former one ? In the absence of statutory prohibition, no such effect is produced by the provisions of the codes which authorize the counter-claim. The defendant has an election. He may set up his cause of action as a counter-claim, and have both opposing demands adjudicated ; or he may withhold it, and prosecute it in a separate action brought for that purpose.^ The codes of a few States expressly require the defendant's cross-right to be inter- posed as a counter-claim, if a proper one for that purpose ; and, if he fails to do so, he cannot enforce it by a direct action.^ § 805. As to the form of the verdict, finding, and judgment, when a pecuniary counter-claim is alleged in the answer, and es- tablished by the proofs at the trial ; when the plaintiff's demand is proved and found by the jury or court, and the amount of the counter-claim as proved and found equals it, the verdict must be for the defendant, and a judgment rendered dismissing the action ; if the counter-claim as found be less than the plaintiff's demand as found, a verdict should be given for the plaintiff for the excess of his recovery over that of the defendant ; finally, if the counter-claim as found is greater than the plaintiff's demand as found, a verdict should be given for the defendant for the ex- cess.3 If the plaintiff should fail entirely to prove his cause of action as alleged, the defendant would be entitled to a verdict 1 Welch ;;. Hazelton, 14 How. Pr. 97 ; 681 ; Hay v. Short, 49 Mo. 139, 142. With Lignot V. Redding, 4 E. D. Smith, 285 ; respect to the recovery and judgment, see Gillespie v. Torrance, 25 N. Y. 306, 308, Grove v. Schweitzer, 36 Wis. 554; West- 310, per Selden J.; Bellinger v. Craigue, ervelt v. Ackley, 62 N. Y. 505; 2 Hun, 31 Barb. 534, 539. See also Giles z;. Aus- 258; Heine v. Meyer, 61 N. Y. 171; tin, 62 N. Y. 486; Brown v. Gallaudet, 80 Derr v. Stubbs, 83 N. C. 539; Hall v. id. 413; Inslee v. Hampton, 8 Hun, 230; Clayton, 42 Iowa, 526; Inslee v. Hamp- Swenson v. Cresop, 28 Ohio St. 668. ton, 11 Hun, 156. When a counter-claim 2 So in Minnesota Code, § 68; Lowry is pleaded the plaintifl' cannot dismiss or V. Hurd, 7 Minn. 356, 363, per Atwater J. discontinue the whole action without de- " The defendants were not only at liberty fendant's consent, so as to prevent the to set up this claim, but, by § 68, unless counter-claim from being tried. Purnell v. they did so, they could not thereafter Vaughan, 80 N. C. 46 ; Amos v. Humbolt maintain an acticm against the plaintiff Loan Ass'n, 21 Kans. 474; Sale r. Bugher, on such claim." See Ricker i;. Pratt, 48 24 id. 432; Gwathney v. Chatham, 21 Ind. 73. Hun, 576; Tabor v. Mackkee, 58 Ind. 8 Moore v. Caruthers, 17 B. Men. 669, 290. 844 CIVIL REMEDIES. for the whole amount of his counter-claim as established hy his proofs. The foregoing rules presuppose that both demands are for the recovery of money, either debt or damages. If the plain- tiff's cause of action, or the counter-claim, is for the recovery of some special relief, legal or equitable, the judgment rendered must be according to the circumstances of the case. As has been shown in the foregoing citations, there may be instances in which it would be impossible for the defendant to take anything by his counter-claim, unless the plaintiff's cause of action should be entirely defeated. There is a dictum in an Indiana case to the effect that, where the action is for the recovery of money, a pe- cuniary counter-claim, less in amount than the sum demanded by the plaintiff, is inadmissible, because, as was said, it was not a complete bar or answer to the action. ^ This dictum was founded upon an entire misconception of the object and uses of the coun- ter-claim. It is not, in any true sense, a defence in bar of the plaintiff's cause of action. It may be pleaded when the plain- tiff's claim and right to recover thereon are admitted ; but, at the same time, it is alleged that the defendant has also a right on his side to recover a sum from the plaintiff upon an independent cause of action, which will equal, and so destroy, or exceed, or diminish the amount which would otherwise be the plaintiff's due. Undoubted!}', when the plaintiff's complaint shows that he is entitled to a certain sum, — say $500, — and the defendant, not controverting these allegations by an}' defence in bar, simply in- terposes a distinct cross-demand for a less amount, — say 8300, — the plaintiff's right to a judgment for the difference is at once admitted ; and the pleadings may be so framed, by the express provisions of some, if not all, of the codes, that he is immediately able to recover the sum so admitted upon the record, while the issues as to the remainder are left to be tried. To say that a de- fendant shall not avail himself of a smaller demand, and thus lessen the amount of the plaintiff's recovery, because he can- not; allege facts which would defeat that recovery altogether, is as palpably unjust, and is warranted by no requirements of the statute. § 806. Cro8S-complaint8. The practice in a few of the States admits a " cross-complaint " by a defendant, not only against the plaintiff, but against other defendants. Although there is a 1 McClintic's Administrator v. Cory, 22 Ind. 170, 173, per Worden J. CROSS-COMPLAINT. 845 general similarity, if not substantial identity, in the provisions of the various codes concerning the granting of relief to defendants against the plaintiffs or against each other, yet a very great differ- ence in the actual practice founded upon these provisions has grown up in the several States. In most of them, the clauses of the statute referred to are practically a dead letter ; while in a few they have been accepted and acted upon according to their evident intent.^ A wide departure has thus been made in the latter commonwealths from the methods which prevailed before the introduction of the reformed procedure. This practice, in respect to cross-complaints against plaintiffs and against other defendants, will be best illustrated by a reference to the facts and decisions of a few prominent cases taken as examples. In an action brought by Joanna Morris against Thompson and Dice, the complaint alleged that the plaintiff, as widow of C. Morris, deceased, was owner in fee of certain land, namely, one undi- vided third of land, of wliich her husband died seized ; that she was induced by the frauds of Thompson, in a manner particularly described, to execute to him a deed of all her said lands : a sec- ond paragraph states the same deed to have been made to Thomp- son by mistake ; that the heirs of her husband also conveyed all their interest in the same land to T. at the same time, who thus held the title to the entire tract ; that therefore T. conveyed five- sevenths of said tract to the defendant Dice, who took with knowl- edge of the plaintiff's claim ; prayer, that her deed to Thompson might be declared void, that T"s deed to D. might be set aside, so 1 In some of these States the cross- v. Monti, 3 Call, 56 ; Monti r. Bishop, 3 complaint on petition is used in cases id. 605 ; Mills r. Buttrick, 4 id. 53 ; Tucker where, under the equity practice, the de- v. McCov, 8 id. 284 ; Hatcher v. Briggs, fendant would be entitled to file a cross- 6 Oreg. 31 ; Sheland v. Erpelding, 6 id. bill, but which do not fall under the 258; Pond r. Waterloo Agric. Works, 50 statutory definition of a " counter-claim," Iowa, 593; Kellogg r. Aherin, 48 id. 299; or where new parties must be brought Hervey v. Savery, 48 id. 313 ; Wright r. in. In a few of these States, however, it Bacheller, 16 Kans. 259 ; Hopkins r. Gil- would seem that the cross-complaint or man, 47 Wis. -581 ; Bd. of Comm'rs v. petition is used in all cases where the Lafayette, &c. R. R., -50 Ind. 85, 116, 117; defendant seeks to obtain affirmative re- Ewing v. Patterson, 35 id. 326; Winslow lief, so that the " counter-claim " is actu- r. Winslow, 52 id. 8 ; Daly r. Nat. Life ally enforced by means of such a cross- Ins. Co., 64 id. 1 ; Joyce r. Whitney. 57 pleading. The following are some of the id. 5-50 ; Shoemaker v. Smith, 74 id. 71 ; most important recent decisions illus- Williams >•. Boyd, 75 id. 286 ; Wilson v. trating its use in various States ; Marr r. Madison. 55 Cal. 5 : O'Connor v. Frasher, Lewis. 31 Ark. 203 ; Trapnall v. Hill, 31 53 id. 435 ; Knichbaum v. Melton, 49 id. 346 ; Earle v. Hale, 31 id. 473 ; Abbott id. 50. 846 CIVIL REMEDIES. far as it conve3'ed her land, that her title might be established, &c. Dice answered, first, denials ; and, second, that he took from T. in good faith, without notice, and for a full consideration. Thomp- son, as an answer, interposed a cross-complaint against Dice, in which, after denying any fraud, he alleged that he took a con- veyance from the heirs of C. INIorris, deceased, of all their inter- est, which was an undivided two-thirds of the tract ; that by mistake his own deed to D. conveyed a greater interest in the laud than that which the heirs of C. M. had owned, and which was all that he had intended to convey to D. ; prayer, that his deed to D. might be reformed by correcting the mistake. Dice an- swered this cross-complaint, denying its averments. On the trial^ D. moved for a separate trial of the issues between himself and T., which was refused. The court found from the evidence that the plaintiff's deed to T. was a mistake ; that T. had reconveyed to her by quitclaim ; that on the same day T. conve3'ed to D., and in that deed also there was a mistake, namely, that it con- veyed five-sevenths of the whole tract instead of five-sevenths of an undivided two-thirds, which was the amount intended to be conveyed ; and a judgment was rendered reforming tliis deed from T. to D. On an appeal by D. from this judgment, the court held that the matters averred in the cross-com- plaint, and the relief sought by it, were so intimately connected with the subject of the principal suit by Mrs. Morris, that the whole might be properly litigated together ; that the cross- complaint stated a good cause of action against D., and that the latter was not entitled to a separate trial of the issues raised by his answer to it.^ It is plain, from the facts as they were found by the trial court, that the real object of the suit by Mrs. Morris was to get rid of Thompson's deed to Dice. Thompson's deed back to herself had purported to reconvey the title to her, but was partially inoperative by reason of the outstanding deed from Thompson to Dice, which was at least a cloud upon her title. By making both of these persons defendants, she forced Thomp- son to attack his own deed to Dice. As tlie matters of difference between Thompson and Dice were closely blended with her own claims against both, and as her remedy so directly depended upon the result of the contest between these two parties, it • Dice V. Morris, 32 Ind. 283. CKOSS-COMPLAINT. 847 seems eminently proper that this triangular legal duel should be fought in one contest, as was done. § 807. Another decision by the same court shows when a cross- complaint by defendants against other defendants will not be sus- tained. Gasharie and Davis sue one hundred and seven defendants partners trading under the name of" Farmers' Home Store," and seek to recover the amount of certain notes given by the firm for the price of goods sold on credit, amounting to several thousand dollars. The firm was an association having a president, direc- tors, and members. The business was conducted by a managing agent, and overseen by the directors. One of the articles of association forbade the purchase or sale of goods on credit. The notes in suit were given by the managing agent for goods bought on credit. Twenty-eight of the defendants put in an answer by way of a cross-complaint against the directors and managing agent, who were also defendants. This pleading stated the arti- cles of association, alleged a violation of them by the directors and managing agent in the said purchase upon credit, and prayed that the judgment in favor of the plaintiffs might be rendered against said directors and agent in the first instance, and enforced out of their property. The plaintiffs, and the directors and agent defendants, demurred to this cross-complaint. The court held that it stated no defence to the plaintiff's action, and pre- sented no case for relief against the directors and agent. While the code provides that "judgment may be rendered for or against one or more of several plaintiffs, or for or against one or more of several defendants, and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves," and while the court has thus the power to settle disputes between the defendants, it will not do so to the detriment of the plaintiff.^ § 808. The Code of Indiana expressly authorizes the court to determine the rights of the parties as between themselves on each side, when the justice of the case demands it. The mode of procedure is not pointed out, and therefore the general methods of chancery must be adopted ; modified by the spirit of the code. When a defendant seeks relief against a defendant as to matters not appearing on the face of the original complaint, he 1 Manning v. Gasharie, 27 Ind. 399. See Indiana Code (2 G. & H. 218), § 368. 848 CIVIL REMEDIES. must file a cross-complaint setting up the matters on which he relies, making as defendants thereto such of his co-defendants and others as are proper ; and process is necessary to bring them in. It is plain that there must be notice and process to the persons against whom relief is sought on the cross-complaint.^ " The only real difference between a complaint and a cross-complaint is, that the first is filed by the plaintiff, and the second by the defendant. Both contain a statement of the facts, and each demands affirmative relief upon the facts stated. In the making up the issues and the trial of questions of fact, the court is gov- erned by the same principles of law and rules of practice in the one case as in the other. When a defendant files a cross-com- plaint, and seeks afiirmative relief, he becomes a plaintiff, and the plaintiff in the original action becomes the defendant in the cross-complaint." 2 The same rules as to setting out written instruments and copies thereof apply to cross-petitions which are prescribed in reference to original petitions. Where, how- ever, the cross-petition is based upon a writing which it does not set out in full, but which is annexed to the petition in the action, this is sufficient ; the rule is practically complied with.^ An answer being denominated a counter-claim by the pleader, cannot in California be treated as a cross-complaint.^ 1 Fletcher v. Holmes, 25 Ind. 458, 465, » Coe v. Lindley, 32 Iowa, 437, 444; Per Frazer C. J. ; Meredith v. Lackey, 16 Ryder v. Thomas, 32 Iowa, 56. Ind. 1. * McAbee v. Randall, 41 Cal. 136. 2 Ewing V. Pattison, 35 Ind. 326, 330. INDEX. THE REFEKENCES ARE TO TirE SECTIONS. A. ABATEMENT, defences in, at common law and under reformed procedure, 697, 698. difference between pleas in and those in bar under ref. proc, 698. defenses in, are new matter, 698, 711. joining of pleas in, with those in bar, 721. ACCORD AND SATISFACTION, defence of, new matter, 712. ACCOUNT, general issue in, at common law, 648. ACCOUNTING, plaintiffs in actions for, 257-259. defendants, 378. parties in actions for, in trust estates, 259, 268, 356, n., 357, n., 358. between partners, 365, 378. ACTIONS, use and effect of forms of, in development of the law, 6-24. forms of, in the Roman law, 11-14. in the early English law, 15-21. real, 16. mixed, 17. personal, 18-21. rise and growth of equitable, 22-24. under the ref. proc, 28. general nature of the civil, 31-41. central feature of the ref. proc, 31-34. distinction between legal and equitable, abolished by ref . proc, 28 35, 36, 44, 70-73. abrogation of common-law forms of, 37, 44. doctrine of parties, 38, 60, 61, 112, 122, 123. theory of pleading, 39, 40, 58, 74, 75. theory of judgment, 41, 62, 63. proceedings in civil, are ordinary and equitable, 44. theoretical unity of legal and equitable in one civil, 45-64, nature of equity determined, 45-53. equitable primary rights and duties, 46-48, 53. equitable remedies, 40-53. how far a union is possible and what it means, 54-64. 54 850 INDEX. ACTIONS — continued. principles as to union of legal and equitable, adopted by the courts 65-75. two schools of Judges, 60. restrictive construction by one school, 66, 67. liberal and correct by the other. 68-73. distinction between legal and equitable rights or causes of action, not abolished, 68. distinction between legal and equitable reliefs, not abolished, 69. distinction between abolished, and one action established for all riglits and reliefs, 70-73. doctrine of unity in proc. applied to pleading, 74,75. union of legal and equitable riglits and remedies in civil, 76-86. cases arising from such union, 77. union of both legal and equitable causes of action, and granting of both legal and equitable reliefs, 78, 79. union of both causes of action and granting of legal relief only, 80, 81. legal cause of action stated, and legal relief granted, where equitable asked, 71, 82. equitable cause of action stated, and equitable relief granted, where legal asked, 71, 83. equitable or legal relief prayed for, but not granted, where corre- sponding cause of action not pleaded, 8-1. use of equitable liglit in support of a legal cause of action, 85. mode of trial of legal and equitable issues when united, 86. equitable defences to legal, 87-97. See Defences. legal remedy on equitable ownership or right, 98-100. action by equitable owner of land for possession, 98-103. by one partner against another for a share of firm property, 104. special ; partition, trover, 105. nature of civil and essential differences between them, 107-111. differences are not in f(;rins of, but in the primary rights and reme- dies, 107-109. right of election between ex conlracta and ex tleUcIo, 110, 493, 567-573. impropriety of retaining former names of, 111. by or against one as representative for all others interested, 388-401. See Parties. against persons severally liable on the same instrument, 402—410. See Liabilities. ACTION ON THE CASE, origin and appropriate use of, 20, 21. nature of pleading in, 510. general issue in, 050. ADMINISTRATORS. See Executors and Administrators. AGENTS. See Principal and Agent. ALLEGATIONS, in foreclosure suits, 341. in suits by or against one on biOialf of all interested, 390, 391, 401. where causes of action arise out of the same transaction, &c., 478. INDEX. 851 ALLEGATIONS — continued. sufficiency or insufficiency of, cases illustrating, 533-536. of promise, whether proper in actions on implied contracts, 537-541. insufficient, imperfect, incomplete, or informal, how objected to, 548-550. redundant, immaterial, and irrelevant, what are, and how objected to, 551, 552. proofs must correspond with, 553-5fi4. See Proofs. of one part of pleading aiding those of another, 575, 716. admitted by failure to deny, 578, 617. immaterial nature of, and effect of denial of the same, 578, 617. qualified admission of, effect of, 578. admission of, by one of several defendants, effect of, 578. effect of admission of in one part of answer on denial in another, 578, 724. defective, supplied by answer, 579. effect of general denial depends upon plaintiff's, 670, 671. what, necessary in counter-claims in different cases, 797-799. See Pleadings; Complaint; Answer. AMENDMENTS, of parties, 411-431. See Parties. of pleadings, 565, 566. provisions of codes relating to, 435, 590. ANSWER, affirmative equitable relief in legal action on mere, 97. nonjoinder or defect of plaintiffs, when raised by, 206, 207. misjoinder when raised by, 211-216. nonjoinder or defect of defendants, when raised by, 287, 288. misjoinder, when raised by, 290-292. misjoinder of causes of action, when objected to by, 443, 448, 449. principles of ref. pleading apply to, containing affirm, matter, 516, 687- 689. allegations not controverted by, admitted, .578, 617. qualified admissions by, effect of, 578. admissions by one of several defendants, effect of, 578. effect of admissions in one part of, on denial in another, 578, 724. defective complaints aided by, 579. rules and doctrines concerning, 581-808. provisions of codes relating to, 581-591. in general, 581. union of defences, 582. counter-claims and set-offs, 583, 584. cross-cornphiints, 585. sham and irrelevant, stricken out on motion, 585. pleadings responsive to; demurrer, reply, 586-588. special provisions in certain codes, 589. amendments, 590. general requisites of, and rules applicable to all, 592-609. classes of; denials, new matter, 593. questions of form, and those of substance, 594-605. when the different questions arise, 594, 595. how taken advantage of; general and special demurrer, 596. 852 INDEX, ANSWER — continued. defective in form distinguished from those demurrable, 597, 598. objections to form, how waived, 597, 600. defective, cured by motion, 596, 599. decisions iUiistrating, 599-605. joint, by several defendants, 606. partial defences, 607-609. to be pleaded, 607, 693-696. how pleaded, 608, 609. defence of denials, 610-685. See Denials. defence of new matter, 686-714. See New Matter. union of defences in the same, 715-725. See Defences. counter-claims, set-offs, and cross-complaints, 726-808. See Counter- claims, Set-offs, and Cross-complaints. ASSAULT AND BATTERY, joinder of plaintiffs at com. law in actions for, 189. under the ref. proc, 231. plaintiffs in suits for, to wife, at com. law, 191. under the ref. proc, 239, 240, 242, 243, 245. joinder of defendants in actions for, at com. law, 281. • under the ref. proc. 307. defendants in suits against wife for, 283, 320. ASSIGNMENT, of things in action at com. law, 124. things in action capable of, 114-153. not affected by code provisions, 125, 144. things in action which survive are capable of, 145, 146. what survive and what do not, 147. examples of those capable of, 148-151. those not capable of, 152, 153. of things in action, effect of, upon defences thereto, 154-170. provisions of codes relating to, 1.54. defences to are not counter-claims, 155, 167, 752. former rules re-enacted by the codes, 156. rule as to defences in favor of the debtor, 157. equities between successive assignors and assignees, 158-161. cases illustrating, 159-161. doctrine of estoppel against assignor, 160, 161. summary of the discussion, 162. demands against assignor set-off in action by assignee, 163-169. other defences not set-offs, 170. plaintiffs in suits to set aside, for benefit of creditors, 268. See Assignors and Assignees. ASSIGNORS AND ASSIGNEES, assignees of tilings in action to sue in tli(-ir own names, 125-137, 251. when the assignment is ab.solute, 126. when equital)le, 127, 135, 232. when of negotiable paper, 128-131, 140. when conditional or partial, 132, 137. illustrations, 133, 134. INDEX. 853 ASSIGNORS AND ASSIGNEES — cori/i»ue(/. assignor to be joined in certain States, ISo, 251, 31G, 339, 3G4. when the assignment is made pending action, 13G. equities between successive, 158-101. cases ilhistrating, 159-161. doctrine of estoppel against assignor, 160, 161. demands against assignor set oif in action by assignee, 163-169. but are not counter-claims, 155, 1G7, 752. defences other than set-off, when avaihible against assignee, 170. parties in suits by assignees of creditors and in bankruptcy, 261, 356, n, against assignees of creditors, 2G8, 357, 358, 394. against assignees in bankruptcy, 356, n. assignees of judgment debtors, defendants in creditors' suits, 348, 349. defendants in suits against corporations by assignees of stock, 364. assignors not necessary defendants in suits by assignees to foreclose securi- ties, 383. assignees of mortgages defendants in suits to redeem, 387. See Assignments. ASSUMPSIT, action of, origin and appropriate use, 20, 21, 512. use of forms of pleading in, under ref. proc, 75, 542-544. right to w^aive tort and bring, 110, 493, 567-573. See Tokts. impropriety of present use of word. 111. nature of pleading in, at com. law, 510. general issue in, at com. law, 645. AWARDS, defences of arbitrations and, new matter, 702. B. BANKRUPTCY, parties in suits by or against assignees in, 261, 356, n. defence of discharge in, new matter, 712. BAR, extent of pleas in, at com. law, and change made by codes, 607, 693, 694. pleas in, classified, 644. difference between pleas in, and those in abatement under the codes, 698. joining of pleas in abatement with those in, 721. BILLS OF EXCHANGE. See Negotiable Paper. C. CANCELLATION, defendants in action for, 379-381. CAUSES OF ACTION, no change made by ref. proc. in, 68. union of both legal and equitable, and granting of both legal and equitable reliefs, 78, 79. granting of legal relief only, 80, 81. legal stated, and legal reliefs granted, where equitable asked, 71, 82. 854 INDEX. CAUSES OF ACTION — continued. equitable stated, and equit. reliefs granted, where legal asked, 71, 83. equitable or legal reliefs prayed for, but not granted where correspond, not pleaded, Si. use of equitable rights in support of legal, 85. mode of trial when legal and equit. are united, 86. what are assignable, 144-153. See Assignment. joinder of, 437-505. provisions of the codes, 438-440. misjoinder of, how may occur and be objected to, 442-451. to be separately stated, 442. how objected to; demurrer, answer, waiver, 443. effect of sustaining objection, 443-445. forms of misjoinder of, 446. proper, mingled in one count, 447. separately stated, but improperly joined, 448, 449. improper, mingled in one count, 450, 451. meaning of " cause of action," 452-454, 518-520. not defined by the courts, 452. elements which form, 453, 454, 518-520. distinctions between, and " object of action," and remedial right, 4.53, 454. test to determine number of, 455-4.57. cases where but one, stated, but several reliefs demanded, 458-462. when arising out of the same transaction, or transactions connected with the subject of action, 403-478. nature of cases described by this clause, 463, 464. judicial interpretation of clause, 465-471. meaning of " transaction," 472-474. meaning of " subject of action," 475. examples, 476, 477. necessary allegations by plaintiff, 478. when joined must affect all parties, 479-490. need not affect all alike. 480. examples o-f misjoinder, 481-484. must affect all plaintiffs as well as defendants, 483. examples of proper joinder, 485. multifariousness, doctrine of, discussed, 486. Mr. Calvert's positions examined, 487-490. when against a single defendant, or against all defendants alike, 491- 501. in actions on contract, 492, 493. election between tort and contract, 493. in actions relating to lands, 494. for injuries to i)roperty, 495. for injuries to character, 496. .special cases, 497. illustrations of law of Iowa and Indiana, 498. examples of improper joinder, 500, 501. must affect all paities in the same capacity, 502. miscellaneous cases, 503-505. INDEX. 855 CAUSES OF ACTlOyi ~ con! innelaintiffs in suits to foreclose and redeem, 255, 250. defendants in suits to foreclose, 333-315. general doctrine ; necessary and proper parties, 333-335. mortgagors and their grantees, 330, 337. creditors when necessary or proper defendants, 336, n., 338, 342. heirs when necessary, 336, n.,337. personal rep. when necessary, 336, n., 337, 338. assignor of mortgage note when not necessary, 316, n., 336, n., 339. when several notes are given, 340. occupants of the land, 341. persons remotely interested in result, 341. subsequent and prior encumbrancers, 336, n., 342. wives of mortgagor and subsequent owners, 336, n., 343, 344. beneficiaries, in suits against trustees, 336, n., 344, n. case of homesteads, 345. persons claiming adversely to mortgagor, 345. trust deeds foreclosed as, 345. defendants in suits to redeem, 387. counter-claims in suits to foreclose, 792, n., 802, 803. MOTIONS, misjoinder of plaintiffs objected to by, 209-216. of defendants, 289-293. proper causes of action mingled in one count, corrected by, 447. causes of action separately stated but improperly joined, corrected by, 449. improper causes of action mingled in one count, corrected by, 450, 451. to correct insufUcient, imperfect, iuconqjlete, or informal allegations, 548-550. to correct redundant, immaterial, and irrelevant allegations, 551-552. sham and irrelevant answers and defences stricken out on, 585. use of, to correct defects in form in answer, 596, 599. argumentative denials corrected by, 627. specific defences equivalent to general denial corrected by, 631, 632. MULTIFARIOUSNESS, discussed and defined, 486. MUNICIPAL CORPORATIONS. See Corporations. INDEX. 871 N. NEGATIVE PREGNANT. denials in the form of, G18, G23. definition of, 018. cases holding that no issues are formed by, 619-621. contrary cases, G'22, 623. NEGLIGENCE, defences admissible under general denial in actions for, 675. counter-claims for, where plaintiff's demand is on contract, 785, 786. NEGOTIABLE PAPER, equitable defences to actions on, 96. suits by assignees of, 128-131, 140. doctrine of estoppel as applied to transfer of quasi, 160, 161. transferred after maturity, subject to equities, 163, n., 164, n., 166. defendants in actions on joint notes, 299. actions against persons several liable on, 306, 402-410. assignor of mortgage note not necessary defendant in foreclosure suit, 316, n., 336, n., 339. parties in foreclosure suits when several notes given, 340. defences admissible under general denial in actions on, 676, 684. defence of want of consideration, new matter, 709. NEW MATTER, classes of answers containing, when defensive and when not, 593. questions that arise upon, may be either of substance or form, 594. demurrer confined to, 505. difference between, and pleas by way of confession and avoidance, 673. defences of, 686-714. how pleaded, 516, 687-691. when to be pleaded, and when general denial sufficient, 672, 673, 691, 692. distinction between, and denials, 691, 692. in mitigation of damages, how pleaded, 693-696. in abatement, how pleaded. 697, 698, 711. particular defences held to be, 699-714. payment, 700, 701. arbitration and award, 702. former recovery, 702. in actions to recover possession of chattels, 678, 703. in actions for torts, 704, 705. in actions concerning lands, 706. in actions upon contracts, 707-710. joinder and capacity of parties, 711. miscellaneous defences ; license, estoppel, accord and satisfac- tion, &c., 712. statute of lim., when to be pleaded as, and when raised by demurrer, 679, 681, 713, 714. NEW PARTIES, brinffins: in, 411-422. See Parties. 872 INDEX. NOTICE, when necessary to protect assignee from set-off, 157, 1G3, 166 kind of necessary to protect assignee from transactions 'between assile paper, 128-131, 140. when conditional or partial, 132, 137. illustrations, 133, 134. assignor to be joined in certain States, 135, 251, 316, 339, 364. INDEX. 877 REAL PARTY IN" I'NTEUEST — com inued. when the assignment is made pending action, 136. possibility of one suing " to the use of" another, 138. suits by one for whose benefit a promise is made to another, 139, 317. by the person to whom the promise is made, 140. special instances; prin. and agent, &c., 141, 177, n. suits by tax-payers to restrain, remove, or redress public wrong, &c., 142. suits by grantees of land in names of grantors, 143. defence that party is not, new matter, 711. RECOUPMENT, defence of, new matter, 705. under the former proc, 731, 732. embraced by counter-claim, 73G, 743, n. See Counter-claims. RELIEF, prayer for. See Prayer. REMEDIES, definition of, 2. prior to modern reforms, 5-27. principle of legal development in respect to, 6-10. arbitrary nature of early forms, 6. three stages of progi'ess; fictions, equity, legislation, 7-10. working of principle of legal development in Rom. law, 11-14. in the Eng. law, 15-24. early forms of legal actions, 16-21. rise and progress of equity, 22-24. classification of, prior to ref. proc, 25-27. under the ref. proc, 28-41. nature of reformatory legislation, 28-30. of the civil action, 31-41. equitable, 49-53. theory of absolute union in proc. does not imply a change in, or abolition of, 55, 56. distinction between, not abolished by ref. proc, 69. union of legal and equit. rights and, in one civil action, 76-86. See Ac- tions. legal, on equit. ownerships or rights, 98-106. See Actions. differences between civil actions are only iu primary rights and, 107-109. distinction between, and causes of action, 353, 354. REPLEVIN, action of, its appropriate use, 21. impropriety of present use of word. 111. joinder of plaintiffs in, at com. law and under ref. proc, 190, 221-225. of defendants, 297, 310. causes of action in, united with other, 503. general issue in, at com. law, 652. defences admissible imder general denial in, 662, 678. when new matter, 678, 703. counter-claims in, 767, 791. 878 INDEX. KEPLY, defects in complaint not cured by, 579. piovisions of codes relating to, 567, 588. IJESCISSIOX, defendants in actions for, 379-381. RIGHTS, primary duties and, what are, 1. remedial duties and, described and defined, 1-3. equit. prim, duties and, 46-48, 53. absolute union in proc. does not imply a change in, or abolition of equit. prim, duties and, 54-56. no alteration or direct effect upon prim, duties and, 68. effect of misconception of remedial, by plaintiffs, 71. union of legal and equit. remedies and, in one civil action, 76-86. See Actions. legal remedies on equit. estates or, 98-106. See Actions. differences between civil actions are only in prim., and remedies, 107-109. joint and several, at com. law, 184-19-5. See Plaintiffs. under the ref. proc, 194-264 See Plaintiffs. distinction between remedial, and causes of action, 454. counter-claims in case of joint, joint and several, and several, 757, 761. S. SEDUCTION, action by parents for seduction of child, 120, 233. by woman for her own, 120, 233. SET-OFF, to things in action when assigned, 154-170. See Assignment. provisions of codes relating to, 584, 726. under the former proc, 729, 730. under the codes, 795-803. See Counter-claims. embraced by counter-claims, 735, 743, n., 796. SPECIFIC DENIALS, nature and objects of, 614-616. mode of alleging separate, 717-720. See Denials. SPECIFIC PERFORMANCE, plaintiffs in actions for, 263. defendants in actions for, 366-368. parties to the contract, their heirs and representatives, 366. persons acquiring subsequent interests, 306-368. heirs or representatives of vendor and vendee, 367. defences admissible under general denial in actions for, 681. STATUTE OF LIMITATIONS, whether to be specially pleaded in ejectment, 670. in spec, perf., 681. when and how pleaded, and when raised by demurrer, 713, 714. INDEX. 879 STOCK, estoppel as applied to transfer of certificates of, 160, IGl. defendants in suits by assignees of, 3G4. STOCKHOLDERS, parties in actions against, 2'29, 270, 317, 362. in actions by, 30 1, 363. SUBJECT OF ACTION, meaning of, 475, 487-490. as used in connection with counter-claims, 737, 742, 775, 776, 703, 794. SUMMONS, when service of, on husband is service on wife, 328. as indicating election between actions ex conlractu and ex delicto, 573. SURETIES, contribution among, 385, n. when liable on the same or separate instruments, joinder of, 403, 404. whether can be sued jointly with prin. debtor, 410. counter-claims by, 749, 750. SURVIVORSHIP, among joint creditors at com. law and under codes, 188, 226. among joint debtors, 280, 302-304. what things in action survive, 147. TAX-PAYERS, actions by, to restrain, remove, or redress public wrong, &c., 142 joinder of, as plaintiffs, 269. defendants in actions by, 386. actions by one for benefit of other, 395. THINGS IN ACTION, assignability of, 144-153. defences to suits by assignees of, 154-170. See Assignment. TORTS, what claims arising from, are assignable, 147-150. 152, 153. to person or character, plaintiffs in suits for, at com. law, 189. under the ref. pi-oc, 230, 231. to lands, plaintiffs in suits for, at com. law, 190. under the ref. proc, 219. to chattels, plaintiffs in suits for, at com. law, 190. under the ref. proc, 223-225. to person, property, or character of wife, plaintiffs in suits for, at com. law, 191. under the ref. proc, 239-246. defendants in suits for, where tort may be treated as breach of contract, 278, 282, 311. defendants in suits for, at com. law, 281-282. under the ref. proc, 307-314. of wife, defendants in suits for, at com. law, 283- 880 INDEX. TORTS — continue fl. under the ref. proc, 320, 321. when causes of action arising from, can be joined with those on contracts, 498, 500, 501. prove(i, where causes of action arising from contracts alleged, 558-564. election to waive tort, and sue on contract, 110, 493, 5(37-573. as regards joining of causes of action, 493. doctrine of election discussed, 110, 493, 567, 568, 571. cases in which election permitted, 569-571- manner of indicating election, 572, 573. justification by one of several defendants, good for all, in action for, 606. defence of justification for, how pleaded, 688, 704, 705. defences of new matter, in actions for, 704, 705. what demands arising from, are counter-claims, 737, 769-773, 780, n. counter-claims where election between tort and contract, 770, 772, 780, n., 788, 801. counter-claims whei-e plaintiffs' claims are on contracts, and defendants' for, 784-787. for trespasses, nuisances, or negligences, 785, 786. for fraud, 787. counter-claims where plaintiffs' claims are for, and defendants' on con- tracts, 788, 789. counter-claims where both claims are for, 790. TRAXSACTIOX, meaning of, 465-474. judicial interpretation, 461-471. true interpretation, 472-474. as used in connection with counter-claims, 737, 742, 769-774. TRESPASS, action of, its appropriate iise, 19, 21. impropriety of present use of word, 111. plaintiffs in actions for, to lands or chattels, at com. law, 190. under the ref. proc, 218, 219, 221, 223-225. by owners of lands out of possession, 232. defendants in actions for, 309, 312. joinder of causes of action for, with other, 494, 495, 503. general issue in, at com. law, 653. counter-claims for, where plaintiff's demand is on contract, 785, 786. TROVER, action of, origin and appropriate use, 20, 21. action analogous to, by equitable owner of chattels, 105. impropriety of present use of word. 111. plaintiffs in action of, at com. law, 190. under the ref. proc, 221, 223-225. defendants in action of, 309, 310. joinder of causes of action for, with other, 495, 503. nature of pleading in, at com. law, 510. general issue in, at com. law, 651. counter-claims on contracts, in actions of, 788. INDEX. 881 TRUSTEE AND CESTUI QUE TRUST, trustees of express trusts, when may sue, 171-182. provisions of codes concerning, 171. meaning of the term, 17'2-17-i. persons " with whom, or in whose name, a contract is made for the benefit of another," 175-177. special instances of, 178. public officers ; counties; towns, 179. persons expressly authorized by statutes to sue, 180. executors and admin., 181. guardians of infants, lunatics, &c., 182. ownership of trustees joint where land is conveyed to several, 218. trustees when co-plaintiffs in actions by beneficiaries, 250. accounting, parties in suits against trustees for, 259, 268, 356, n., 357,n., 358. cestuix que trustent when co-plaintiffs in actions by trustees, 260. to be parties in foreclosure suits against trustees, 336, n., 344, n. defendants in suits against trustees, in creditors' actions, 350. in administration suits, 355. beneficiaries, defendants in suits against trustees to redeem, 387. joinder of causes of action by or against trustee, in personal and repre- sentative capacity, 484, 502. counter-claims by or against, 751, 754, 800, n. TRUSTS, of will, heirs-at-law to be parties in suits to enforce, 264. plaintiffs in suits to administer, 259, 2C8. defendants in actions involving, 356-359- trustees necessary, 356. personal rep. of trustee, when to be joined with surviving, 356. beneficiaries, when necessary, 357, 358. where there is a breach of trust, 356, 358, n. in enforcement of implied, 35S. V. VARIANCES, between proofs and allegations, 553-564. See Proofs. VENDOR AND VENDEE, equitable defences in actions by vendor to recover lands, 95. plaintiffs in suits to foreclose vendor's lien, 256. parties in actions by or against for spec, perf., 263, 366-368. W. WARD. See Guardian and Ward. WIFE. See Husband and Wife. WILLS, parties in actions to set aside, 264, 355. 66 CO CO LAW LIBRARY UNIVERSITY OF CALIFORNU LOS ANGELES fM^riUIFO%, ^OFCA ^ .... f o S }l < -Tie''" ^ C? 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