ally single demand. This practice demonstrates the worthlessness, the utter want of any foundation of fact,—of the argument uniformly urged against the possibility of allowing separate actions by persons clothed with joint rights; the argument was a mere formula of words, and nothing more. The same is equally true of the common-law doctrine respecting survivorship. When courts of equity introduced the notion that the right does not belong alone to the survivors of joint promisees, but is shared also by the estate of the deceased party, they abolished the ancient dogma in fact, although this result was not openly proclaimed by them, but was described by the maxim, "Equity regards joint rights as joint and several." As soon as the original doctrine was changed, and it came to be admitted that, upon the death of one or more joint covenantees, obligees, or promisees, the entire right did not remain in the survivors, there was nothing whatever in the nature of the relation which forbade the uniting of the survivors and the personal representatives of the deceased as coplaintiffs in the same action to enforce the right, or which forbade the personal representatives from suing alone in courts of law. If we examine in this manner all the so-called judicial reasoning which was repeated by judge after judge from an early day in support of the common-law rules concerning parties and concerning the forms of judgments as dependent upon the parties, we shall find that it simply lacks the basis of fact, since the very proceedings and acts which it assumes or declares to be impossible have since been adopted and practised without the slightest inconvenience. For example, the common-law judges asserted that persons having a joint right of action could not sue separately, because otherwise the debtor would be subjected to cumulative recoveries; but such severance is permitted in many States, and is a matter of daily occurrence, without any practical harm to defendants. The common-law judges denied the possibility of the surviving joint creditors and the representatives of the deceased being united as plaintiffs in an action on the demand; but such a joinder of parties is authorized, and found to be in every respect practicable. Again, the common-law courts said that a misjoinder of plaintiffs in a suit brought upon a joint contract must be fatal to any recovery, because it was impossible for the judgment to be divided and to be rendered against the defendants in favor of some plaintiffs, and in favor of the same defendants against the other plaintiffs; but in fact such a judgment is just as possible in the case of contracts as in that of torts, and is a familiar feature of the reformed procedure in many of the States. The common-law rules relating to parties and to the rendition of judgments, as affected by the state of the parties, are thus shown to have been technical and arbitrary in the highest degree; the penalties for their violation were extremely onerous, amounting in most instances to an absolute denial of justice, while the reasons upon which they were based were a mere form of empty words, conveying no real meaning, and resting upon no foundation of actual fact. The system, like much else of the ancient common law, was the result of severely logical deductions from premises which had no real existence - no existence except in the imagination of the judges who adopted them. The strictly logical methods which the schoolmen of the middle ages were accustomed to employ, were taken and applied bodily in the practical administration of justice; from the use of a single word alone, such as "joint" or "several," rules were deduced by which the legal rights of suitors were determined without the slightest concern for or reference to the requirements of justice and the equities of the particular case. § 194. The Fundamental Principles of the Reformed Procedure; the General Intent of the Legislature in its Adoption. With the foregoing statement in outline of the cominon-law rules as to parties plaintiff, the first questions which suggest themselves, and demand a full discussion, are: How far have those rules been abrogated or modified by the provisions contained in the codes of procedure? What is the interpretation to be put upon those provisions? What was the general intention of the legislature, and how far has that intention been embodied in the statute so as to produce a practical result in the administration of justice? The nature and extent of the change must depend upon the legislative intent expressed in a manner sufficiently clear and positive to effect an alteration in the former system. It must, of course, be assumed at the outset that these doctrines and rules of the common law still remain in full force, except so far as they have been abolished by the reformatory legislation, and others substituted in their stead. It may be demonstrated that the ancient rules rest upon no basis of principle, and that the reasoning which supported them is fallacious; all this, however, would not of itself work their destruction. They had become established as positive, peremptory regulations, binding upon the courts as though enacted by the legislature, and nothing but the legislative authority exercised in the form of a statute would avail to abolish them. I shall, therefore, endeavor to discover, if possible, the legislative intent, and shall seek for it first in the language of the codes. - § 195. It must be conceded at once that there is no repeal or modification of these common-law rules in detail; the requirements of the old law as to joint and several rights, and the union or severance of the parties holding such rights, are not in any express manner referred to. It should also be carefully observed -and the fact is one of great practical importance that the provisions in the various codes relating to parties plaintiff are not so full, minute, and express as those relating to parties defendant. Even in those State codes where the common-law distinctions between joint, joint and several, and several liabilities are utterly abolished, and the practical requirements as to the union or severance of parties defendant based upon them are wholly swept away, there is no corresponding express legislation as to the distinctions between joint and several rights and the union or severance of plaintiffs. This difference in the mode of treatment may be made the ground and has been by many judges of inferring that the legislature intended to leave the ancient legal doctrines as to plaintiffs untouched, and to confine its work of reform to the case of defendants. The legislative intent, therefore, whatever it may be, must be found in the few general provisions quoted at the commencement of the present section, and in the subsequent provisions which regulate the rendition of judgments, so far as the same depends upon or is connected with the parties to an action. Referring to these provisions, it is plain that their language is general, inclusive, without exception, and applying alike to all kinds and classes of actions. Whatever doctrines in reference to parties plaintiff the legislature has adopted, whatever regulations it has established, its intention, as shown by the language of all the codes, but one or two, is to apply them equally to legal and to equitable actions. No exception being made, nor even suggested, the courts cannot, unless by an act of positive legislation, by an act of direct usurpation, create an exception, and say that these general terms were intended to apply to equitable suits alone, while legal actions were intended to be left outside of their scope and effect. § 196. These statutory provisions themselves are confessedly an enactment, with hardly a verbal change, of the general principles long ago established by courts of equity for the regulation of the parties plaintiff in suits pending before them. The legislature has, therefore, in a very brief but comprehensive form, adopted the equitable doctrine, and has applied it to the civil action required to be used in the enforcement of all rights and the pursuit of all remedies, whether legal or equitable. This proposition cannot be denied, without denying to the language of the statute its plain meaning and ordinary significance and force. The practical question, then, arises at once, How far is this equitable doctrine inconsistent with the positive rules as to parties plaintiff in legal actions, long established as a part of the common-law procedure? To what extent does it, as thus generally stated, necessarily abrogate or modify these special rules? That some change is wrought, if we adhere to the simple language, is very manifest. For example, the common law required that all partners, or other joint contractors, should unite as plaintiffs, and admitted no ordinary exception or excuse for the nonjoinder. The new procedure, after requiring, as did the common law, that all those parties "united in interest must be joined as plaintiffs," adds, "but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reasons being stated in the complaint or petition." The practice permitted by this clause was familiar to courts of equity, but was utterly unknown in courts of law. Here, however, it is applied to all actions; no exception is suggested; and if we follow the plain language of the codes, this important alteration is made in the ancient legal rules regulating the parties plaintiff. § 197. Assuming that the provisions in relation to plaintiffs are an enactment in a statutory form of the general equitable doctrine in regard to the same subject, and that, as they stand in the codes, they equally embrace within their scope actions of all kinds, legal and equitable, and giving full force to their language, they do not abrogate but rather confirm a large portion of the common-law rules, those, I mean, which required all persons jointly interested to be united as plaintiffs. The general requirements, "all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs," and "those who are united in interest must be joined as plaintiffs," plainly include the case of persons "having an interest in the subject-matter," or "united in interest" by virtue of their being joint obligees, covenantees, or promisees at law, as well as the case of persons having some common equitable interest. The two sections of the codes from which I have quoted do not contemplate nor permit a severance among parties plaintiff when the old law required a joinder; the changes introduced by them rather tend in the opposite direction, and, taking their language simply as it stands, they would seem to allow the uniting of parties plaintiff in many cases where such union was forbidden in legal actions; as, for example, the uniting of survivors of joint promisees and the personal representatives of those deceased. In fact, the practical rule of equity in regard to suits by persons jointly interested, or having a joint right, was the same as that which prevailed at law, with the single exception or addition which provided for the case of a refusal by one or more of the joint holders of the right to unite with their fellows as plaintiffs. In equity, as well as in law, the joint owners of property, and the joint obligees, or covenantees, were in general required to be all made coplaintiffs, but if one or more refused to join, he or they could be made defendants. This equitable doctrine is now, if we accept the express language of the codes, and not the glosses put upon it by some of the courts, extended to all actions alike. § 198. As already stated, these sections of the codes, if full force be given to their plain and simple terms, look to a more free union of parties as plaintiffs in the same action than was allowed by the courts of law under the former system. In order to be a proper plaintiff, according to the ancient theory, the person must be interested in the whole of the recovery, so that one judgment could be rendered for all the plaintiffs in solido; that a judgment should be given to one plaintiff for a certain sum of money, or for certain lands or chattels, and a judgment for a different sum, or other lands or chattels, be awarded to another plaintiff, was regarded as the sheerest impossibility. The legal notion of sur 1 See 1 Daniel's Chan. Pl. (4th Am. ed.), pp. 192, 206, 207, 208, 211, 216. |