another, which was also charged, the complainant was allowed a recovery.25

When a bill alleges both fraud and mistake, if the latter alone is proved the bill will be sustained.26 If the plaintiff wish to set aside a deed on account of fraud, imposition, and undue influence, he may allege both that the maker was insane and that he had a great imbecility of mind.27 It was held: that a suit to enjoin a railroad company from granting rebates to favored shippers, under the Elkins act of February 19, 1903, could not be sustained under the statute of July 2, 1890, forbidding combinations and monopolies in restraint of commerce between the States, 28

The objection of inconsistency cannot be raised for the first time upon an appeal.29

§ 139. Multifariousness or misjoinder. In general. The Equity Rules of 1912 provide: "The plaintiff may join in one bill as many causes of action, cognizable in equity, as he may have against the defendant. But when there are more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant the liability must be one asserted against all of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the convenient administration of justice. If it appear that any such causes of action cannot be conveniently disposed of together, the court may order separate trials."1 To what extent this modifies the previous practice has not yet been determined.

The former practice was as follows: A bill must not be multifarious. Multifariousness consists in the joinder of two or more distinct and unconnected grounds for equitable relief, each of which might be the foundation for a separate bill. This may occur in three ways, by a misjoinder of plaintiffs, by a misjoinder of de

25 Corban v. Conklin, C. C. A., 208 Fed. 231.

26 Williams v. U. S., 138 U. S. 514, 517, 34 L. ed. 1026, 1028; U. S. v. Mills, C. C. A., 190 Fed. 513, 515.

27 Story's Eq. Pl., § 254; Bennet v. Vade, 2 Atk. 325; Colton v. Ross, 2 Paige (N. Y.) 396; Lloyd v. Brewster, 4 Paige (N. Y.) 537;

fendants, and by a misjoinder of grounds for equitable relief held by and against the same parties. "To lay down any rule applicable universally, or to say what constitutes multifariousness as an abstract proposition is, upon the authorities, utterly impossible. The cases upon the subject are extremely various, and the court in deciding them seems to have considered what was convenient in particular circumstances, rather than to have attempted to lay down any absolute rule." 3 "The only way of reconciling the authorities upon the subject is by adverting to the fact that, although the books speak generally of demurrers for multifariousness, yet in truth such demurrers may be divided into two distinct kinds. Frequently the objection raised though termed multifariousness, is in fact more properly misjoinder; that is to say, the cases or claims united in the bill are so different a character that the court will not permit them to be litigated in one record. It may be that the plaintiffs and defendants are parties to the whole of the transactions which form the subject of the suit, and nevertheless these transactions may be so dissimilar that the court will not allow them to be joined together, but will require distinct records. But what is more familiarly understood by the term 'multifariousness' as applied to a bill, is where a party is able to say he is brought as a defendant upon a record, with a large portion of which, and of the case made by which he has no connection whatever."4 There is, however, little practicable good to be obtained from a maintenance of this distinction except as a means of elucidating some of the expressions in the earlier authorities."

"The decisions on this subject are contradictory and unsatisfactory. The common-sense rule in such cases is that an individual shall not be called to maintain his title or shall not assert it in connection with others to which it has no analogy, and in the investigation of which the costs and complexity of the case will be increased." It has been said that the fact that separate 5 See Calvert on Parties, Book I, ch. vii.

VII.

2 Calvert on Parties, Book I, Ch.

3 Lord Cottenham in Campbell v. Mackay, 1 M. & Cr. 603, 618.

4 Lord Cottenham in Campbell v. Mackay, 1 M. & Cr. 603, 618. Approved in Shields v. Thomas, 18 How. 253, 259, 15 L. ed. 368, 370.

6 McLean, J., in Turner v. Am. Baptist Missionary Union, 5 McLean, 344, 349.

The following rule laid down by Mr. Gibson in his Suits in Chancery, section 292, was quoted with

decrees may be requisite in order to afford complete relief does not necessarily make the bill multifarious.7

§ 140. Multifariousness by misjoinder of plaintiffs. The Equity Rules of 1912 provide: "All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiff's, and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if his presence is necessary or proper to a complete determination of the cause. Persons having a united interest must be joined on the same side as plaintiffs or defendants, but when any one refuses to join, he may for such reason be made a defendant.' "1 "When there is more than one plaintiff, the causes of action joined must be joint, and if there be more than one defendant the liability must be one asserted against all of the material defendants, or sufficient grounds must appear for uniting the causes of action in order to promote the convenient administration of justice." 2 It has not yet been decided whether this last clause modifies

approval by Judge Jenkins in Von Auw v. Chicago T. & F. G. Co., 69 Fed. 448: To make a bill demurrable for multifariousness it must contain all of the following characteristics. First, two or more causes of action must be joined against two or more defendants; second, these causes of action must have no connection or common origin, but must be separate and independent; third, the evidence pertinent to one or more of the causes must be wholly impertinent as to the other or others; fourth, one or more of the causes of action must be capable of being fully determined without bringing in other cause or causes to adjust any of the legal or equitable rights of the parties; fifth, the decree as to one or more of the separate or independent causes must be conclusive against one or more of the defendants, and the decree proper as

to the other cause or causes, must be conclusive against the other defendants or defendant; sixth, the relief proper against one or more of the defendants in one or more of the separate and independent causes of action must be distinct from the relief proper against the other defendant or defendants of the other cause of action; seventh, the satisfaction of the proper decree by any of the defendants to the extent of his alleged liability on any one or more of the distinct causes of action must not be a satisfaction of a proper decree against the other defendant or defendants, or the other cause or causes of action; and eighth, the multifariousness must be apparent, and the misjoinder of distinct causes of action manifest."'

7 Neal v. Rathell, 70 Md. 592; S. c., 17 Atl. 566.

$ 140. 1 Eq. Rule 37.

2 Eq. Rule 26. Eq. Rule 37.

the whole sentence or only that which refers to the joinder of defendants. It consequently is uncertain whether it affects so much of the former practice as permitted a joinder of plaintiffs, who had a common interest in the relief sought.

In England, a party cannot now unite in the same suit claims which he holds in two different capacities unless connected.3 In New York, it was held, where the plaintiff prayed the same relief both individually and as executor upon the same cause of action, which appeared upon the face of his complaint to be for the benefit of the testator's estate, that there was no misjoinder of parties or of causes of action.4

No persons can unite as complainants in a bill in equity unless they have a joint or common interest in obtaining the same relief. Thus, if one of them has no interest in the relief claimed, the bill is demurrable.6

Those who claim the return of money paid by them severally on distinct promissory notes cannot join their claims in the same bill; nor can several creditors claiming under several obligations unite in a suit to attach the debts of an absent debtor.8 Persons who have been defrauded of stock in a corporation by the same parties who promised it to them before the organization of the corporation cannot join in a bill to compel the issue of the stock to each of them.9 Persons who have been separately indicted for similar acts committed while acting as agents for the same principal cannot join in a bill to enjoin the further prosecution of the indictments.10

But in a bill to compel specific performance of a decree in a former suit, all the complainants in the first suit may join as plaintiffs, though the decree sought to be enforced orders the

3 Order xviii.

4 Moss v. Coehn, 158 N. Y. 240. See Metropolitan Trust Co. v. Columbus, S. & H. R. Co., 93 Fed. 689.

5 Story's Eq. Pl., § 279; Calvert on Parties (2d ed.), 105, 110.

6 Walker v. Powers, 104 U. S. 245, 249, 26 L. ed. 729, 731; Doggett v. Railroad Co., 99 U. S. 72, 25 L. ed. 301. Nat. Surety Co. v. Wash.

Iron Works, 243 Fed. 260. Contra,
Havens v. Burns, 188 Fed. 441.

7 Yeaton v. Lenox, 8 Pet. 123, 8 L. ed. 889.

8 Ibid. But see Norris v. Hassler, 22 Fed. 401; Langdon v. Branch, 37 Fed. 449.

9 Summerlin v. Fronterizac S. M. & M. Co., 41 Fed. 249.

10 Woolstein V. Welsh, 42 Fed. 566.

payment of specific sums severally to each of them.11 Several nre insurance companies were allowed to unite in a bill to set aside one award against them upon an arbitration of claims by the same person under several policies; 12 and to enjoin the prosecution of separate actions at law, brought by the same plaintiffs against them and other insurance companies to recover upon policies on the same property, which provided for a proportional liability, where the same defense had been interposed to each action,18 but not where they had issued concurrent policies upon the same policy, the liability of each being independent of that of the rest.14

Plaintiffs with conflicting interests cannot so join.15 Such are, in a suit for the construction of a will, persons, each of whom is interested in having a different construction put upon it.16 Nor can two join in a bill to set aside a fraudulent conveyance of land, of whom one claims the land as a creditor of the person who has made the conveyance, and the other as the purchaser of the land upon a sheriff's sale to satisfy a judgment held by him.17 So, a bill was held to be multifarious which sought to enforce a trust in land and also to give the title to one of the complainants to the same property.18

But the interests of the complainants need not be co-extensive.

11 Shields v. Thomas, 18 How. 253, 15 L. ed. 368. It has been held that this rule does not extend to a bill for specific performance of a contract to convey real estate in which the complainants hold distinct rights to separate lots. Marselis v. Morris & L. Co., 1 N. J. Eq. 31, 39.

12 Hartford Fire Ins. Co. v. Bonner, 11 L.R.A. 623, 44 Fed. 151.

13 Virginia-Carolina Chem. Co. v. Home Ins. Co., C. C. A., 113 Fed. 1. 14 Rochester German Ins. Co. v. Schmidt, C. C. A., 175 Fed. 720.

15 Walker v. Powers, 104 U. S. 245, 26 L. ed. 729; Saumarez v. Saumarez, 4 Mylne & Cr. 331, 336; Parsons v. Lyman, 4 Blatchf. C. C. 432; Bell v. Cureton, 2 M. & K.

503; Stebbins v. St. Anne, 116 U. S. 386, 29 L. ed. 667; Brown v. Bedford City L. & I. Co. 91 Va. 31, 20 S. E. 968. A bill was held multifarious where all the complainants sought as taxpayers to enjoin a defendant town from purchasing the plant of a defendant waterworks company, and one complainant further sought, as a stockholder in that company, to enjoin the sale on the ground of inadequacy of price. Peabody v. Westerly Waterworks, 20 R. I. 176, 37 Atl. 807.

16 Parsons v. Lyman, 4 Blatchf. C. C. 432; Saumarez v. Saumarez, 4 M. & Cr. 331, 336.

17 Walker v. Powers, 104 U. S. 245, 26 L. ed. 729.

18 Leslie v. Leslie, 84 Fed. 70.