devisee; and, in the alternative, should the will be held invalid, as heir at law.21

"When the pleadings are so framed as to rest the claim for relief solely on the ground of fraud, it is not open to the plaintiff, if he fails in establishing the fraud, to pick out from the allegations of the bill facts which might, if not put forward as proofs of fraud, have yet warranted the plaintiff in asking for relief. A defendant in answering a case not founded on fraud is not bound to do more than answer the case in the mode in which it is put forward. If, indeed, relief is asked alternatively, either on the ground of fraud, or, failing on that ground, on some other equity, a plaintiff failing on the first may succeed on the latter alternative. But when the attention of the defendant has been distinctly called to it, and he has been called upon to answer the case according to both alternatives, it is the duty of the judge to determine whether the two are so interwoven with each other that, on the failure of proof of fraud, it is impossible to treat the facts as separate allegations, justifying a separate mode of dealing with them." 22 Thus, it has been held, that where a bill to rescind a contract was based solely upon alleged fraudulent representations by defendant, it could not be sustained upon proof of a mutual mistake; 23 and upon a bill to set aside a decree for fraud and error, apparent upon the record, relief upon proof of a mistake of fact was denied.24 When the bill charged fraud by the defendants and the evidence showed that they had obtained their title through the fraud of

21 Annual Practice, 1913, p. 317. But see Field v. Camp, 193 Fed. 160.

22 Dwight Foster's Lectures on Equity Pleadings, MS.; Eyre v. Potter, 15 How. 42, 56, 14 L. ed. 592, 598; Britton v. Brewster, 2 Fed. 160; French v. Shoemaker, 14 Wall. 314, 335, 20 L. ed. 852, 857; Fisher v. Boody, 1 Curt, 206; Hoyt v. Hoyt, 27 N. J. Eq. 399; Wilde v. Gibson, 1 H. of L. Cases, 605; Hickson v. Lombard, L. R. 1 H. of L. 326; Thomson v. Eastwood, L. R. 2

App. Cases, 215; Price v. Berrington, 2 Mach. & G. 486, 498; Dashiell v. Grosvenor, C. C. A., 27 L.R.A. 67, 66 Fed. 334; Grosvenor v. Dashiell, 62 Fed. 584; Brown v. Davis, C. C. A., 62 Fed. 519; Hendryx v. Perkins, C. C. A., 114 Fed. 801. See Chicago, B. & Q. R. R. Co. v Babcock, 204 U. S. 585, 593, 51 L. ed. 636, 638. 23 Burk v. Johnson, C. C. A., 146 Fed. 209.

24 Hendryx v. Perkins, C. C. A., 114 Fed. 801.

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

to

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 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 time upon an appeal.29

first

The

one

may one

there

§ 139. Multifariousness or misjoinder. In general. Equity Rules of 1912 provide: "The plaintiff may join in bill as many causes of action, cognizable in equity, as he have against the defendant. But when there are more than plaintiff, the causes of action joined must be joint, and if be more than one defendant the liability must be one asserted against all of the material defendants, or sufficient grounds appear for uniting the causes of action in order to promote convenient administration of justice. If it appear that any 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.

must

the

such

dis

The former practice was as follows: A bill must not be multifa rious. Multifariousness consists in the joinder of two or more tinct 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.

3

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." "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.5

"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 2 Calvert on Parties, Book I, Ch. 5 See Calvert on Parties, Book I, ch. vii.

VII.

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 MeLean, 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 not necessarily make the bill multifarious.7

does

The

§ 140. Multifariousness by misjoinder of plaintiffs. 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 plaintiffs, and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any

is

person may at any time be made a party if his presence 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." "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

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.1

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.

7

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. 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.