New York & New Haven R. R. Co. a. Schuyler.

common interest, but their interests may be derived under dif ferent instruments, if the general objects of the bill will be promoted by their being united in a single suit, the court will not hesitate to sustain the bill against all of them." In this State, the joinder in one suit, of causes of action in some sense distinct from each other, with all the necessary parties for their determination, has always been allowed with great liberality, where the convenience and the ends of justice have required it. In Brinckerhoff a. Brown et al. (6 Johns. Ch. R., 139), it was held that different judgment creditors might unite in one bill for the purpose of reaching the estate of their common debtor, which he had fraudulently conveyed; and that the bill might be filed against persons relative to matters of the same nature, forming a connected series of acts, all intended to defraud and injure the plaintiffs, and in which all the defendants were more or less concerned, though not jointly in each act. In the case of Fellows a. Fellows (4 Cow., 682), the bill charged that the several defendants, in combination with each other, and with the debtor of the plaintiffs, took from him separate conveyances of his property without consideration, and in order to defraud the plaintiffs. One of the defendants answered, denying the combination, and demurred to the residue of the bill, because it included distinct matters, in many of which he was not concerned. The demurrer was overruled, the chancellor observing: "If instead of one matter in demand, here are three (the three conveyances in question), they are all of the same nature, in respect to the questions they now present. Each of the three defendants holds a portion of the property of John Fellows (the debtor) by a fraud, and by a fraud of the same kind. The right of the complainants is against the whole property, and their right against all portions of it is of one nature. The claims of the three defendants, now holding the property in question, are of one character, each of them holding under a fraudulent transfer. .... This, therefore, is not a case of several matters of distinct natures in the sense of the rule upon that subject."

The decision was appealed from to the Court for the Correction of Errors, and was there unanimously affirmed, after a very full discussion by counsel, and elaborate consideration in the opinions of several members of the court.

Many other cases might be mentioned, exhibiting varieties in

New York and New Haven R. R. Co. a. Schuyler.

69

the application of the general rule declared in those which have been cited. But it is unnecessary to refer to them. The rule itself is settled too firmly to be shaken, and it would seem to be decisive of the present question. In this case, there is a single interest in the plaintiffs directly opposed to the interests of all the defendants. The common point and centre of the litigation is the stock, property, and franchises of the plaintiffs' corporation, in which the defendants claim specific shares and proportions as holders of the false certificates.

The rights claimed by the defendants are distinct, because they rest upon separate instruments as the evidence thereof; but they are of precisely the same nature, they turn upon the same question, and they are a cloud upon the same estate. Each certificate is a false muniment of the holder's title to a particular interest, the corporate estate, vested as a unit in the corporation, but equitably belonging to the holder of its actual stock.

Among the grounds of the argument in behalf of the plaintiffs, it was insisted that the suit is maintainable on the principle of a bill of peace, a suit to quiet a title and prevent a multiplicity of actions. A suit in equity to establish a sole right of fishery against several hostile claimants, or by a parish priest to establish a right, whether against the parishioners, or by the parishioners to establish a modus, is an example of a bill of this kind. It will be found, however, that there is nothing in the rules which govern the technical bill of peace, to justify a misjoinder of subjects or parties in the litigation.

But the number of parties and the multiplicity of actual or threatened suits, will sometimes justify a resort to a court of equity when the subject is not at all of an equitable character, and there is no other element of equity jurisdiction. Even in such cases there must be such a unity of interest, on one side or the other, as to bring the litigation within the ordinary rules of equity pleading. This suit, I think, could be sustained on a bill of peace, but the question of misjoinder would be the same. Without reverting to the principles of such a we sustain the jurisdiction, on the ground that the controversy bill, is of an equitable nature, for the reasons which we have given at large; and we hold that the objection for multifariousness merely, is untenable within ordinary and established rules on

that subject.

Elmore a. Thomas.

If all the invalid certificates were now held by one person, the jurisdiction would attach in order to have them cancelled, and the suit would be against him alone. Being held by vari ous parties, the jurisdiction still depends on the same principles; but all the parties can be united, because there is such a unity in the controversy with all of them as to render it fit and proper, according to settled principles, that they should be joined in a single suit.

The judgment of the Supreme Court must be reversed, and judgment entered overruling the demurrer, with the usual leave to answer.

ELMORE a. THOMAS.

Supreme Court, Fourth District; Special Term, June, 1858. AFFIRMATIVE RELIEF.-JUDGMENT AGAINST A MARRIED WOMAN.

-PLAINTIFF.-REFERENCE.

In an action brought by a married woman, by her next friend, for specific performance of a contract of sale of her separate property, entered into with her by the defendant, the answer did not claim affirmative relief; but the referee to whom the cause was referred reported that the breach arose by the plaintiff's default, and that the defendant was entitled to judgment for the recovery of a deposit paid by him, and for costs.

Held, on the defendant's motion for relief thereupon, 1. That the proper course was to refer it to the same referee to ascertain and report upon the facts stated in the moving papers, and to report a particular description of the plaintiff's real estate, in order to a final decree.

2. That the next friend should be required to show cause why he should not pay the defendant's costs.

Of the practice of referring causes equitable in their nature.

Motion for confirmation of report of a referee, and for other relief.

This was an action commenced before the amendment of the Code in 1857. The plaintiff was a feme covert, and appeared by a next friend. The action was to compel specific performance of a contract for the sale of real estate from her to the defendant Thomas. The husband of the plaintiff was also made

Elmore a. Thomas.

a defendant. The parties, by written consent, referred the action to a sole referee. The report of the referee was in favor of the defendants, finding such facts as were strictly within the issues upon the pleadings. Among other facts, he found that, at the time of making the contract, the defendant paid $100 upon it; that the non-performance was the fault of the plain-. tiff; and that the defendant was entitled to judgment, with costs, and also judgment to recover back the sum of $100 and interest, paid at the time of making the contract. The defendant Thomas moved for confirmation of the report of the referee, and upon the report and affidavits, to have such equitable relief against the plaintiff for the amount of the judgment and costs, as he was entitled to.

Hughes & Northop, for the motion.

Wait & Reynolds, opposed.

POTTER, J.-This is an equity case, and not strictly a referable one. (Code, § 254.) By the written consent of the parties, however (Code, § 270), it could be, and was referred. The affidavits, as well as the pleadings, sufficiently show that there are collateral questions of fact in the case, important to be known by the court as a court of equity, before framing their final decree. The plaintiff in this case, as a married woman, made a contract in regard to the sale of her real estate, and received from the defendant a payment of money upon such contract. She, by her own act, afterwards prevented his performance until the property had been consumed by fire, and then brought her action against him for specific performance of the contract. The referee found against the plaintiff; but she still has the defendant's money received on the contract; and an ordinary judgment at law against her for this money could not be enforced, nor, perhaps, a judgment for costs. It also appeared, that at the time this action was commenced the next friend of the plaintiff was liable for costs, from which the amendment of the Code in 1857 has not relieved him. In such cases as this, the better practice is, that the order of reference should not be general, but limited in terms, to try the issues presented by the pleadings only, the court retaining control of the cause, except for the purposes of trial. (Billings a. Baker, 6 Abbotts'

Elmore a. Thomas.

Pr. R., 217.) The report of the referee in this case has been strictly confined to the question presented by the issues in the pleadings, according to section 271, and to this extent his report" is the decision of the court." In a certain class of equity cases, the practice requires the report of the referee to be presented to the court for confirmation. This is especially so, when collateral matters arise in the case, not strictly within the issues presented by the pleadings, or upon the merits, but necessary to be known and understood by the court. Though I think that the equities now claimed by the defendant might have been set up in his answer. The better practice is, when such equities are not set up in the pleadings, to move for confirmation of the report, as was done in this case. This should be done as a basis, upon which to move for further equitable relief. (Griffing a. State, 5 How. Pr. R., 205; Belmont a. Smith, 1 Duer, 675; Banter a. Brady, 8 How. Pr. R., 216.) In such equity cases where facts other than those presented by the issues in the pleadings are necessary to be known to the court, in order to enable them to frame the proper decree (which must ever depend somewhat upon the discretion of the court, and especially questions in regard to costs), the court have power, by subdivision 3 of section 271 of the Code, even without the consent of parties, to refer the case for such a purpose. And I have no doubt the court possess this power inherently by section 5, article 6, of the constitution, even without this provision of the Code. They would fail to be a court of equity, in a variety of cases that might occur, were they tied up in the exercise of their equity powers to the provisions of a statute intended as a mere system of general practice. This practice will not be found to be in conflict or inconsistent with the provisions of the Code, and is therefore preserved in terms by section 469. There will be various questions, that arise in equitable suits, that cannot be cramped within the arbitrary and ordinary rules applicable to common-law proceedings; for although the rules of pleading in law and equity cases are now confined to one uniform systemand law and equity are both to be administered by the same court-it does not follow that the well-settled principles which have ever distinguished the two systems have been changed. It is not so. I do not know that it is even so claimed. The constitution itself recognizes the distinction between law and