11 1 Ofaitty Pl., 10. 12 1 Chitty Pl., 43

13 1 Ohitty Pl., 205.

14 N. Y. Code Civ. Pro., Sec. 454.

It has already been stated that, in general, an action must be prosecuted in the name of the real party in interest. "All persons having an interest in the subject of the action, and in obtaining the judgment demanded, may be joined as plaintiffs, except as otherwise expressly prescribed by this act." 21 And "any person may be made a defendant, who has or claims any interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein."22

To obtain a judgment on a joint cause of action at common law, all of the persons whose legal interests 15 Pomeroy's Code Remedies (3rd Ed.), Sec. 871. 16 1 Chitty PL, 469. 17 Pomeroy's Code Remedies, Sec.

887 18 1 Chitty's Pl., 190; Hayden vs.

McCloskey, 161 Ill., 351. 19 Pomeroy's Code Remedies (3rd Ed.), Sec. 101; Phillips vs. Gorham, 17 N. Y., 270.

20 Pomeroy's Code Remedies, Sec.

110.

21 N. Y. Code Civ. Pro., Sec. 446; are joint, must, if living, join in an action, and, as a consequence, if a person who is jointly interested in the subject matter of the action refuses to join in the suit, the action cannot be maintained, and those who wish to avail themselves of a legal remedy are prevented from asserting their rights.23 The rule is different in equity. The equitable rule exists in code pleadings, as shown by the following provision of the California code, which is substantially the language of all of the codes:24

Cal. Code Civ. Pro., Sec. 378. 22 Cal. Code Civ. Pro., Sec. 379; N. Y. Code Civ. Pro., Sec. 447.

"Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason therefor being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all."

It is also provided that "all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs except as otherwise provided." 25

This provision permits persons who are severally interested in the subject matter of the action to unite as plaintiffs, which cannot be done at common law.

In order that the entire controversy may, if possible, be determined in one action, the rules which govern suits in equity have been embodied in the codes, and are applicable to all actions, whether formerly denominated legal or equitable.

23 1 Chitty Pl., 9.

24 Cal. Code Civ. Pro., Sec. 382; N. Y. Code Civ. Pro., Sec. 448.

25 N. Y. Code Civ. Pro., Sec. 446; Cal. Code Civ. Pro., Sec. 378.

These provisions are as follows: "The court may determine any controversy between the parties before it, where it can be done without prejudice to the rights of others, or by saving their rights; but where a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in.26

"A defendant against whom an action is pending upon a contract, or for specific real or personal property, may, at any time, before answer, upon affidavit that a person not a party to the action, and without collusion with him, makes against him a demand for the same debt or property, upon due notice to such person and the adverse party, apply to the court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in the court the amount of the debt, or delivering the property or its value to such person as the court may direct; and the court may, in its discretion, make the order." 27

"Any person may, before the trial, intervene in an action or proceeding, who has an interest in the matter in litigation, in the success of either of the parties, or an interest against both. An intervention takes place, when a third person is permitted to become a party to an action or proceeding between other persons, either by joining the plaintiff in claiming what is sought by the complaint, or by uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything adversely to both the plaintiff and the defendant." 28

"When the question is one of a common or general interest of many persons, or where the parties are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole." 29

26 N. Y. Code Civ. Pro., Sec. 452;

Cal. Code Civ. Pro., Sec. 389.

27 N. Y. Code Civ. Pro., Sec. 820.

28 Cal. Code Civ. Pro., Sec. 387; N. Y. Code Civ. Pro., Sec. 452.

The rule of the common law as to the parties plaintiff and defendant in actions of tort is substantially the same under the codes as under the common law procedure.

Where the tort affects two or more persons, but no joint injury has been suffered and the damages sustained in consequence of the tort are several, a separate action must be brought by each person affected by the wrongful act;30 but when two or more persons are jointly affected by the commission of a tort, as in the case of the members of a partnership or joint tenants, all who are injuriously affected by the tort must join in the action;31 but the liability of two or more wrongdoers is ordinarily joint and several, and separate or joint actions may be brought against them, as under the common law procedure.32

No substantial change has been made by the codes as to the parties in an equitable action, but a sweeping change is made in the common law rules which determine the difference between joint, joint and several, and several liabilities, and which regulate the selection and union of defendants, in the case of one or the other of these liabilities,33 and the number of cases in which persons may be joined as co-plaintiffs has been enlarged.34

29 N. Y. Code Civ. Pro., Sec. 448;

Cal. Code Civ. Pro., Sec. 382. 30 1 Chitty Pl., 63a; Pomeroy's Code Remedies (3rd Ed.), Sec.

231. 31 Chitty Pl, 63a; Pomeroy's Code Remedies (3rd Ed.), Sec. 230.

22 1 Chitty Pl 87; Pomeroy's Code Remedies (3rd Ed.), Sec.

281. 33 Pomeroy's Code Remedies (3rd Ed.), Sec. 286. Pomeroy's Code Remedies (3rd Ed.), Sec. 200.

The provisions of the codes concerning the bringing in of new parties, where their presence is necessary to a complete determination of the controversy; the right of a person against whom an action is brought upon a contract, or for specific real or personal property, when a person not a party to the action claims the same debt or property, to have such claimant substituted in his place, and to be discharged from liability with respect to such claim, on depositing in court the amount of the debt or delivering the property or its value to such person as may be designated by the court; the right of a person who has a direct interest in the subject matter of an action, to become a party to such action, while they are substantially a restatement of rules governing the procedure in proceedings in equity, are now applicable to all actions, whether denominated legal or equitable under the common law system of pleadings, and serve to avoid multiplicity of actions.

The effect of the adoption of the code system of procedure has been to simplify the practice, especially in what are known as common law actions, to end in one suit, whenever practicable, the controversy between the parties, to discard technicalities in pleading, and to pay regard rather to substance than form in pleading.

While these results have not always followed the adoption of the reformed procedure, the system has, in the main, proved satisfactory to the bench and bar.