to all.145 Thus, a joint bill by two parties to set aside a do cree for fraud, consisting of want of notice, cannot be sustained if either did in fact have notice, or waive the want of notice by appearance.146 This rule as to the misjoinder of complainants, which refuses relief to any of them unless all are entitled to relief, does not apply to a bill by the assignor and assignee of a chose in action jointly.147 There is no inflexible rule on the subject of joinder of parties in courts of equity. The court exercises a sound discretion in determining whether there is a misjoinder of parties, under the particular circumstances of the case.148 Thus, it has been held that the improper or unnecessary joinder of a party complainant will not defeat a cause in equity.149 If one co-complainant is not entitled to relief, the bill is demurrable." 150

§ 49. Complainants having community of interest.

Parties whose interests are in harmony, and only those, should be joined as complainants.151 Persons representing adverse interests cannot be joined as complainants.152 To enable two to file a bill as co-complainants, both must have an interest, and

145 Dias v. Bouchaud, 10 Paige (N. Y.) 445; Lovelace v. Hutchinson, 106 Ala. 417, 17 So. 623; Cammeyer v. United German Lutheran Churches, 2 Sandf. Ch. (N. Y.) 186; King of Spain v. Machado, 4 Russ, 225. In such case the remedy of the complainant is to strike out the name of the one having no cause of action. Lovelace v. Hutchinson, 106 Ala. 417, 17 So. 623.

146 Berdanatti v. Sexton, 2 Tenn. Ch. 699

147 Broughton v. Mitchell, 64 Ala. 210.

148 Murray v. Hay, 1 Barb. Ch. (N. Y.) 59, 43 Am. Dec. 773; Kensington v. White, 3 Price, 164; Mills v. Campbell, 2 Younge & C. Ch. 389; Brinkerhoff v. Brown, 6 Johns. Ch. (N. Y.) 139.

149 Brown v. Lawton, 87 Me. 83, 32 Atl. 733.

150 Vaughn v. Lovejoy, 34 Ala. 437; Jones v. Quinnipiack Bank, 29 Conn. 25.

See 1 Pom. Eq. Jur. §§ 243-275, for full discussion of joinder of complainants.

151 Bunce v. Gallagher, 5 Blatchf. 481, Fed. Cas. No. 2,133; Saumarez v. Saumarez, 4 Mylne & C. 331.

152 Smith v. Smith, 102 Ala. 516, 14 So. 765; Parsons v. Lyman, 4 Blatchf. 432, Fed. Cas. No. 10,779; Grant v. Van Schoonhoven, 9 Paige (N. Y.) 255, 37 Am. Dec. 393.

both be entitled to relief.153 Complainants having no common interest, but asserting distinct rights, cannot, as a general rule, unite in the same suit.15 154 Thus, the heirs to an estate cannot join with the administrator in an original bill for an account of the personal estate, and for the rents and profits of land, or for the recovery of land.155

To prevent a multiplicity of suits, equity sometimes entertains bills by complainants between whom there exists no privity of contract, and against defendants between whom there exists no connection except a community of interest in the subjectmatter of the suit.156 Thus, it is held that unconnected parties, having a common interest centering in the point in issue in the cause, may unite in the same bill;157 and where there is a unity of interest as to the object to be attained, the parties seeking redress may join in the same bill;158 and two or more persons having separate and distinct tenements, which are injured or rendered uninhabitable by a common nuisance, or which are rendered less valuable by a private nuisance which is a common injury to the tenants of both, may join in a suit to restrain such nuisance.159 Parties having an interest in

153 Wilkins v. Judge, 14 Ala. 135.

154 Plum v. Morris Canal & Banking Co., 10 N. J. Eq. 256; Hendrickson v. Wallace, 31 N. J. Eq. 604; Gilbert v. Thomas, 3 Ga. 575; Ellicott v. Ellicott, 2 Md. Ch. 468; Clark v. Holbrook, 146 Mass. 366, 16 N. E. 410.

155 Scott v. Calvit, 3 How. (Miss.) 148; Dunn v. Dunn, 2 Cond. Eng. Ch. 440. See, also, Massey v. Modawell, 73 Ala. 421. In a bill for an account and a conveyance of lands held in trust for a person deceased, the vendee of the lands from the deceased, and his administrator, may properly join. Ulrici v. Papin, 11 Mo. 42.

156 Kennedy's Heirs and Ex'rs v. Kennedy's Heirs, 2 Ala. 571. See 1 Pomeroy, Eq. Jur. §§ 244-275.

157 Comstock v. Rayford, 1 Smedes & M. (Miss.) 423, 40 Am. Dec. 102.

158 De Louis v. Meek, 2 G. Greene (Iowa) 55, 50 Am. Dec. 491; Powell v. Spaulding, 3 G. Greene (Iowa) 443; Marsh v. Village of Fairbury, 163 Ill. 401, 45 N. E. 236; Trustees of Village of Watertown v. Cowen, 4 Paige (N. Y.) 510. See 1 Pomeroy, Eq. Jur. §§ 258-261.

159 Murray v. Hay, 1 Barb. Ch. (N. Y.) 59, 43 Am. Dec. 773; Belknap V. Trimble, 3 Paige (N. Y.) 577; Taylor v. Bay City St. Ry. Co., 80

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.164

$50. Community of title.

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.) 35?

166 Garnard 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.