common in the subject-matter of a suit in equity may be joined as complainants, though each acquired his interest by a separate and distinct contract.160 Where complainants' interests are in every important sense several, and there is no unity or community of interest between them as regards the subject-matter of the suit, and they have but a common interest in the law of the case, and they stand in no danger of a multiplicity of suits, they cannot join in the suit.161

Whether or not persons who have been deceived by fraudulent representations may join in an action against the party perpetrating the fraud depends upon circumstances. Where the fraudulent acts complained of are different and unconnected, the joinder is not allowed, because they are distinct and separate, although similar; as where agents procured subscriptions by fraudulent representations at different times, and under varying circumstances, although similar in their general scope, because the defense is different, each dependent upon its own circumstances. But in a case where persons have been induced by the same fraudulent representations contained in a prospectus to subscribe to the stock of a corporation, such persons have a common interest, and may join in a bill for the benefit of themselves, and others similarly deceived, to set aside their subscriptions. The fraudulent acts are exactly the same, and perpetrated by the same means, and the injury is identical as to all, except in the amount of the injury.162 Thus, where persons were induced to subscribe to the stock of a corporation by representations that it had a paid-up capital of a certain amount, was out of debt, and doing a profitable business, and that they Mich. 77, 45 N. W. 335; Beach v. Spokane Ranch & Water Co. (Mont.) 65 Pac. 111. See 1 Pomeroy, Eq. Jur. § 257.

160 Edwards v. Sartor, 1 Rich. (S. C.) 266.

161 Schulenberg-Boeckeler Lumber Co. v. Town of Hayward, 20 Fed. 422.

162 Bosher v. Richmond & Harrisburg Land Co., 89 Va. 455, 16 S. E. 360, 37 Am. St. Rep. 879. See, also, Bradley v. Bradley, 165 N. Y. 183, 58 N. E. 887; Brown v. Guarantee Trust & Safe Deposit Co., 128 U. S. 403; Strobel v. Kerr Salt Co., 164 N. Y. 303, 58 N. E. 142; Barcus v. Gates, 61 U. S. App. 596, 89 Fed. 783; Ashmead v. Colby, 26 Conn. 287.

would be given employment therein at specified wages, all of which representations were false, it was held that they could maintain a joint bill for the cancellation of their subscriptions, and the return to them of the money they had paid for the stock, it appearing that they acted jointly in the whole transaction, the representations were made to them jointly, or to one of them acting for both, and the money paid for the stock was drawn out of a former copartnership between them.163 It has been held, however, that several depositors in a savings bank, deceived by the misrepresentations of its managers, cannot join in a suit to compel the managers to make good the loss sustained by them, for the reason that the injurious act of the defendants operated on each of the complainants as an individual alone, and out of all connection with his fellows, and each depositor was separately deceived.1

$ 50. Community of title.

164

Persons holding in severalty different parcels of land derived from the same source may unite in the prosecution of a suit brought to adjust the common title. 165 Thus, where a vendor conveys with covenant of warranty, and his vendee afterwards conveys portions of the land, with covenants of warranty, to two others, retaining a part himself, and the three are evicted of an undivided third part of the land by title paramount to that of the original vendor, they may join as complainants in a bill against him to reimburse themselves for the loss sustained by the breach of his warranty.166 The purchaser of land, and

163 Sherman v. American Stove Co., 85 Mich. 169, 48 N. W. 537. 164 Chester v. Halliard, 36 N. J. Eq. 313; Jones v. Del Rio, 1 Turn. & R. 297. “It is familiar and unquestioned practice for creditors and stockholders to unite in bills for a common remedy, although their debts and stock may vary in amount." Whipple v. Guile, 22 R. I. 576, 48 Atl. 935; Hazard v. Durant, 9 R. I. 602; Vernon v. Reynolds, 20 R. I. 552, 40 Atl. 419.

165 1 Pomeroy, Eq. Jur. §§ 245, 255, 257, 268, 269, 273; Tilford v. Henderson, 1 A. K. Marsh. (Ky.) 483; Scrimeger v. Bucchannon, 3 A. K. Marsh. (Ky.) 219; Osborne v. Wisconsin Cent. R. Co., 43 Fed. 824; Crews v. Burcham, 1 Black (U. S.) 359

166 Gannard v. Eslava, 20 Ala. 732.

his vendee, may join in a bill against the original vendor in order to obtain a title directly to the second vendee, but in such case there must be no conflict between the complainants themselves.167 Wards entitled to the same estate, which has not been divided, may join in a bill against their joint guardian and his sureties, who were all bound at the same time and by the same instrument.168 But when a bill is filed for the settlement of an estate by several complainants, claiming to be next of kin of the decedent, and one of them claims through his father, who died after said decedent, there is a misjoinder of complainants which is fatal on general demurrer.169

§ 51. Defendants to bills.

If a party in interest refuses to join with the complainant, he may be made a defendant, though his true interest may be with the complainant.170 The refusal should be stated in the bill.171 But where the assignees of an insolvent were made defendants in a bill of revivor, put in their answer as such, and made no objections to that character, it was held that their refusal to join as complainants might be inferred, and, being before the court as parties, it was sufficient.172 Where one of two joint debtors refused to join with the other in a bill to establish usury in defense of a suit at law, it was held that the surety might file a bill making the principal debtor defendant, stating such refusal.173 Equity may oblige a complainant to assume the position of a defendant, that justice between the parties may be effectuated, and, where the case justifies it, will decree at once without waiting for such change of position.174

167 Crook v. Brown, 11 Md. 158.

168 Hutchcraft v. Shrout's Heirs, 1 T. B. Mon. (Ky.) 206, 15 Am. Dec. 100.

169 Plunkett v. Kelly, 22 Ala. 655.

170 Porter v. Clements, 3 Ark. 364; Smith v. Sackett, 10 Ill. 534; Whitney v. Mayo, 15 Ill. 251; Pogson v. Owen, 3 Desaus. (S. C.) 31.

171 Contee v. Dawson, 2 Bland (Md.) 264.

172 Osgood v. Franklin, 2 Johns. Ch. (N. Y.) 1, 7 Am. Dec. 513.

173 Morse v. Hovey, 9 Paige (N. Y.) 197; Beggs v. Butler, 9 Paige (N. Y.) 228.

A bill brought by a pledgee against a stranger to recover possession of property pledged, which avers that complainant's claim is sufficient to cover the property, and to which bill the pledgor is made a defendant, is not open to demurrer on the ground that he should have been joined as a complainant.175 Those only are parties defendant in a bill against whom process is prayed.176 An infant should be made a defendant, rather than a complainant.177 The necessity of establishing the case as against an infant party cannot be obviated by making the infant a complainant.178 Upon a bill filed for the purpose of partitioning lands in which minors had an interest, and also to vest in the widow the title in fee to a portion of the land, including the mansion house, equal to a child's part of the land, in lieu of dower, it was held that the minors must be made defendants, and it would be error to make them complainants in such a cause. 179

§ 52. Joinder of defendants.

To entitle a complainant to join several persons as defendants, such persons must have a community of interest in at least

174 Farmers' & Mechanics' Bank of Frederick County v. Wayman, 5 Gill (Md.) 336. See post, § 60.

175 Michigan State Bank v. Gardner, 3 Gray (Mass.) 305.

176 Story, Eq. Pl. § 44; Cooper, Eq. Pl. 16; Elmendorf v. Delancey, 1 Hopk. Ch. (N. Y.) 555; Fawkes v. Pratt, 1 P. Wms. 593; Lucas v. Bank of Darien, 2 Stew. (Ala.) 280; Verplanck v. Mercantile Ins. Co. of New York, 2 Paige (N. Y.) 438; Talmage v. Pell, 9 Paige (N. Y.) 410; Carey v. Hillhouse, 5 Ga. 251; Green v. McKenney, 6 J. J. Marsh. (Ky.) 193. It seems that, under the practice formerly obtaining in New York, it was sufficient if the parties were distinctly named as such in the bill. Verplanck v. Mercantile Ins. Co. of New York, 2 Paige (N. Y.) 438. See post, § 78.

177 McGavock v. Bell, 3 Cold. (Tenn.) 512.

178 Benson v. Wright, 4 Md. Ch. 278.

170 Simpson v. Alexander, 6 Cold. (Tenn.) 619. Upon a suggestion at any time during the progress of a cause, the court can direct an inquiry to ascertain whether the infant is in a proper position before the court to have his rights protected; and if he is not, then an order can be had to amend by placing him on the opposite side of the suit. Le Fort v. Delafield, 3 Edw. Ch. (N. Y.) 32; Bowen v. Idley, 1 Edw. Ch. (N. Y.) 149.

183

some material subject-matter of the suit;180 but the interest of each defendant need not be identical.181. Where a general right is claimed against several distinct persons, they may be all joined in one suit.182 Several persons may be joined as defendants, though claiming distinct rights, if they have one connected interest among them all, centering in the point in issue in the cause. A bill may be sustained against different persons, relative to matters of the same nature, in which all of the defendants are more or less concerned, though not jointly in each act.184 Where two separate and distinct parties are acting in the accomplishment of a measure injurious to others who have rights in the same matter, though they may be acting separately, and with adverse interests as between themselves, all the parties so acting may be joined in a bill by the aggrieved party as defendants, and a demurrer on account of such joinder will not be sustained.185 If all the defendants are charged with combination and fraud, and derive their titles from a common source, and are interested in the subject-matter of the suit, there is no misjoinder, although as to portions of the land involved their titles may be distinct.186 It is not necessary that there should be a privity or connection between the defendants in a bill of peace.187 It seems that a bill of peace may be filed

180 White v. Delschneider, 1 Or. 254; Van Hise v. Van Hise (N. J. Eq.) 47 Atl. 803.

181 Lehigh Valley R. Co. v. McFarlan, 31 N. J. Eq. 758; Borough of Rutherford v. Alyea, 54 N. J. Eq. 411, 34 Atl. 1078.

182 Vann v. Hargett, 22 N. C. 31, 32 Am. Dec. 689. See 1 Pomeroy, Eq. Jur. §§ 267-275.

183 Fellows v. Fellows, 4 Cow. (N. Y.) 682, 15 Am. Dec. 412; Randle v. Boyd, 73 Ala. 282; Stevens v. South Ogden Land, Bldg. & Imp. Co., 14 Utah, 232, 47 Pac. 81.

184 Wheeler v. Clinton Canal Bank, Har. (Mich.) 449.

185 Putnam v. Sweet, 1 Chand. (Wis.) 286, 2 Pin. (Wis.) 302.

186 Pierson v. David, 1 Iowa, 23; Andrews v. Pratt, 44 Cal. 309; Story, Eq. Pl. §§ 284, 285, 285a, 286; Brinckerhoff v. Brown, 6 Johns. Ch. (N. Y.) 139.

187 Morgan v. Morgan, 3 Stew. (Ala.) 383, 21 Am. Dec. 638. The interest which will allow parties to join in such a bill is not only an interest in the question, but one in common in the subject-matter of the suit. Cutting v. Gilbert, 5 Blatchf. 259, Fed. Cas. No. 3,519; City