for such injury against another person on the
ground of negligence. Broschart v. Tuttle,
59 Conn. 1,
11: 33
48. The franchise of a company operating
an electric street-railway with an assumption
of corporate powers cannot be assailed by an
individual in a suit to enjoin him from inter-
fering with the operation of the road. Wil-
liams v. Citizens R. Co. 130 Ind. 71, 15: 64
49. It is no defense to an action for the pur-
chase price of a contract for the sale of land,
that another than the assignor was the real
owner of such contract, when the assignee re-
ceived a valid assignment. Ferguson v. McBean,
91 Cal. 63,
14: 65

57. An election to bring an action ex contractu against one who has converted property, upon the implied contract of sale, precludes a subsequent action for conversion of the same property against other persons who participated in the same acts which have already been treated as constituting a sale of the property. Id.

58. The only remedies of a servant wrongfully discharged are: either to treat the contract as continuing, and bring a special action for breaking it by discharging him, which he may bring whether his wages are paid up to the time of his discharge or not; or, if his wages are not paid up to the time of discharge, to treat the contract as rescinded and sue upon a quantum meruit for services actually ren

II. UNION, CHOICE, OR FORM OF REMEDIES. dered. Keedy v. Long, 71 Md. 385, 5: 759

a. In General.

59. An election by a servant wrongfully discharged, to sue upon a quantum meruit for services actually rendered, is a bar to a subsequent action for breach of the contract. Id. See also JUDGMENT, 59.

b. Concurrent or Inconsistent; Effect of Elec

tion.

60. The exercise of an option by the vendor in a conditional sale, to enforce payment of a note given for the purchase price, defeats his right under the contract to retake the property upon default, although he is unable fully to collect the note because of the purchaser's insolvency. Crompton v. Beach, 62 Conn. 25, 18: 187

50. The provision of the Colorado Code abolishing the different forms of actions does not affect the principles controlling in different actions, but they remain the same; and the law to be administered in each case depends as much as formerly upon its nature and form. Omaha & G. Smelting & R. Co. v. Tabor, 13 Colo. 41, 5: 236 51. The distinction between legal and equitable suits was not abolished by Mass. Stat. 1887, chap. 283, which permits civil actions, except replevin, to be commenced by a bill or petition which is in the nature of a declaration, and by the service of a subpoena, which is in the nature of a writ of original summons; 61. Recovering judgment for the full amount and a suit brought under that statute, which due on a note and mortgage, and the issuing of cannot be maintained as either the one or the an execution thereon which is returned nulla other, cannot be maintained as partaking some-bona, will not prevent an action for fraud in what of the nature of both. obtaining the loan. Union C. L. Ins. Co. v. Waring, 157 Mass. 421, Scheidler, 130 Ind. 214, 15: 89 62. An election of remedies is not made by attachment and bill in chancery based on fraud in procuring credit on a purchase by an insolvent corporation, so as to defeat an action on subsequently maturing purchase-money notes, as the remedies are not inconsistent, being in each instance for the recovery of the price. Crossman v. Universal Hubber Co. 127 N. Y. 34, 13: 91

Worthington v. 20: 342 52. An action either for the value of trees destroyed, or for the injury to real estate by such destruction, may be brought by the owner of trees wrongfully destroyed by another. Bailey v. Chicago, M. & St. P. R. Co. (S. D.) 19: 653

Tort or assumpsit.

53. An action of tort will lie for a railroad company's breach of its statutory duty to stop at a station for a passenger. Purcell v. Richmond & D. R. Co. 108 N. C. 414,

12: 113 54. An action to recover a statutory penalty from a telegraph company for undue delay in transmission and delivery of a message is not an action ex contractu, within the meaning of the Georgia Constitution, giving justices' courts jurisdiction of "civil cases arising er contractu. Western U. Teleg. Co v. Taylor, 84 Ga. 408,

8: 189 55. A passenger who by mistake is given a ticket for the wrong direction, and who on failure to pay his fare is ejected by the conductor without unnecessary force, has no right of action for a tort against the company, but any cause of action he may bring must be based on contract. MacKay v. Ohio River R. Co. 34 W. Va. 65, 9: 132

56. The tort in conversion of goods may be waived, and an action brought against the wrongdoer upon an implied contract of sale. Terry v. Munger, 121 N. Y. 161, 8: 216

63. Where parties who are entitled to rescind a contract for fraud apply for and obtain an attachment against the other party as their debtor, knowing of the fraud, they thereby elect their remedy and waive the right to disaffirm the contract; and a subsequent discontinuance of the attachment suit will not restore such right, especially where, before discontinuance, part of the money levied on was paid over to them. Conrow v. Little, 115 N. Y. 387, 5: 693

64. Bringing and prosecuting an action to set aside as fraudulent his debtor's assignment for the benefit of creditors is not such an election of remedies as will debar a creditor from sharing in a distribution of the assigned estate made pending such suit. Mills v. Parkhurst, 126 N. Y. 89, 13: 472

65. A person entitled to a savings bank deposit which has been paid, without authority, to another person, has a right of action against the latter for money had and received, or against the bank as a debtor for the deposit;

4: 205 74. An action by other beneficiaries for injuries causing the death of a person does not preclude a subsequent action by a child not then born, whose rights were not considered in the former action. Nelson v. Galveston, H. & S. A. R. Co. 78 Tex. 621, 11: 391

but by electing to bring either action he loses | payable at different times, brought before the right to the other; and a judgment against some of the notes are payable, is not a bar to the person who received the money, although a subsequent action on the latter notes. Anuncollectible, is a bar to an action against the derson v. Pilgram, 30 S. C. 499, bank. Fowler v. Bowery Sav. Bank, 113 N. Y. 450, 4: 145 66. The filing and prosecuting to decree of a bill, by the surviving members of a partnership against the executor of a deceased partner, to obtain an account and payment over of plaintiffs' share of certain partnership assets which came to defendant's hands as such executor and have been sold by him, constitutes a ratification of such sale, and is an election of remedies which will bar a subsequent action of tort against the executor for a wrongful conversion of the property. Bradley v. Brigham,

149 Mass. 141,

3: 507 67. Bringing suit to redeem from a foreclosure sale will constitute an election on the part of the plaintiff to affirm the sale, and will preclude his insisting on its invalidity. Horn v. Indianapolis Nat. Bank, 125 Ind. 381,

9: 676

68. Recovering judgment against the cashier of a national bank on his indorsement of a note secured by a transfer of the bank's stock to him individually, which indorsement and transfer were merely an evasion of the law against loans on the security of the stock, is not a bar to an action on his bond for misappropriating the stock, as the remedies are concurrent and not inconsistent. Walden Nat. Bank v. Birch

130 N. Y. 221,

14: 211 69. The right of an administrator to recover damages suffered by the intestate during his life from a personal injury, which action survives under Mass. Pub. Stat. chap. 52, § 18, is independent of the right of action under § 17, for the intestate's loss of life, to recover a sum not exceeding $1,000 for the widow and children or next of kin; and both actions may proceed at the same time, on independent grounds, and for different purposes. Bowes v. Boston, 155 Mass. 344, 15: 365

70. A recovery for his own personal injuries will not bar a subsequent action by a man to recover for loss of the society and services of his wife, and for expense in effecting her cure. caused by the same negligent act which caused his own injuries. Skoglund v. Minneapolis Street R. Co. 45 Minn. 330, 11: 222 71. A creditor holding a note or bond secured by a mortgage cannot, while prosecuting an action in equity for foreclosure, in which he asks that execution may be awarded to him for any balance left unpaid by the proceeds of the sale, maintain an action at law on the note or bond. Anderson v. Pilgram, 30 S. C. 499, 4: 205

c. Splitting; Successive Suits.

72. Where a railway company unlawfully constructs its road in a public street so as to interfere with the private rights of abutters, it constitutes a continuing trespass, for which successive suits for damages may be brought so long as the trespass is continued, until the occupation ripens into title by prescription. Lamm v. Chicago, St. P. M. & O. R. Co. 45 Minn. 71, 10: 268 73. An action on a mortgage securing notes

d. Joinder.

1. In General.

75. Counts in case and trover may be joined. Hayes v. Massachusetts Mut. Ins. Co. 125 Ill.

626,

1: 303

76. A complaint asserting rights in waters upon one's land, and also claiming the same rights under a contract, does not combine inconsistent causes of action. Case v. Hoffman, 20: 40 84 Wis. 438,

77. A claim for the reformation of a deed, and one for damages for breach of covenants of the deed as amended, may be joined in the same action, under Conn. Gen. Stat. § 877, providing that legal and equitable remedies may be enforced in one action. Butler v. Barnes, 60 Conn. 170,

12: 273

78. Different causes of action, whether legal or equitable, may be united in the same petition, when connected with the same subject

of action; and in an action for a nuisance plaintiff may ask for damages and for an injunction to restrain its continuance. Paddock v. Somes, 102 Mo. 226,

2. Different Parties.

10: 254

79. A joint deposit made by sureties to secure their obligation as such is a joint fund without regard to the way in which it was made up, so that on payment of the obligation therefrom their right of action against the principal may be joint. Thomas v. Carter, 63 Vt. 609, 14: 82

80. An action may be maintained jointly against two railroad companies for injuries received in a collision caused by the concurrent wrongful acts or omissions of both defendants, although there is no concert of action or common purpose between them. Flaherty v. Northern P. R. Co. 39 Minn. 328, 1: 680

81. Striking employes whose names are put by their employers on a blacklist and sent to other employers in the same city, with whom a combination has been made by an agreement not to employ blacklisted employes of other employers, cannot unite in an action against the employers; but, if any right of action exists, it is in favor of each one separately. Worthington v. Waring, 157 Mass. 421, 20: 342

82. There is no misjoinder of causes of action where there is but one cause of action stated, merely by stating that one of the defendants, who was the beneficial owner of the claim, was made defendant because he refused to unite with the plaintiff, and asking that he be required to pay the costs and expenses. Central City First Nat. Bank v. Hummel, 14 Colo. 259, 8: 788 83. Several owners of distinct tenements may

join in a suit to restrain a nuisance, or other, ment of the firm debts rather than to their

grievance, which is common to all of them, own.
affecting each in a similar way, but cannot so
join when the object of the suit is to restrain
that which does a distinct and special injury
to each of their properties. Jones v. Row-
botham (N. J. Err. & App.) 47 N. J. Eq. (2
Dick.) 337, 48 N. J. Eq. (3 Dick.) 311,

19: 663

84. A nuisance is common to several complainants when it affects all of them, not precisely at the same instant and in the same degree, but at the same period of time and in a similar way, so that the same relief may be had in the suit, whether there be one, two, or a dozen plaintiffs. Id.

85. Owners of separate and distinct tenements may unite in an action to restrain the rebuilding, in violation of a city ordinance, of a structure partially destroyed by fire, the injury from which will affect all of them alike. Mount Vernon First Nat. Bank v. Sarlls (Ind.) 129 Ind. 201, 13: 481 86. Owners of property assessed a proportionate share of the cost of a sewer cannot unite in a suit to enjoin its collection on the ground that, in consequence of the location of the property, it cannot be benefited by the sewer. Poulsen v. Portland, 16 Or. 450,

Alexander v. Alexander, 85 Va. 353,

III. PARTIES.

a. In General.

1: 125

92. Where the persons interested in a will are exceedingly numerous, all need not be made parties to a bill filed for the construction thereof, provided all possible interests are represented. Hills v. Barnard, 152 Mass. 67,

9: 211

93. Where a testator is shown to have had ten brothers and sisters, although it does not appear what was the number of their children, the children of one of testator's nephews will be permitted to contest the probate of the will on behalf of all the testator's heirs at law, under Ky. Civ. Code, § 25, providing for suits by one or more of the persons interested, where the parties are numerous and it is impracticable to bring them all before the court. Randolph v. Lampkin, 90 Ky. 551,

10: 87

94. Only those who are improperly joined as defendants can object to the misjoinder. Slegel v. Herbine, 148 Pa. 236, 15: 547 95. One who demurs specially for want of proper parties in not making him a defendant 87. It is not a valid objection that property-thereby becomes a party. Underwood v. owners united in seeking an injunction against Wood, 93 Ky.

1: 673

the collection of an asessment under a void ordinance. Although their interests are distinct and differ in extent, the cause is common to all, and their respective remedies the same. Id. 88. Where an insurance company issues to each of ten persons as members of a club, for a separate consideration furnished by each, a certificate of insurance which provides that upon the death of either member the company will pay a certain sum to his representatives and to the surviving members of the club, share and share alike, upon the death of a member either of the persons interested in the sum payable may maintain a separate action for his share without making other persons interested parties to the action. Emmeluth v. Home Ben. Asso. 122 N. Y. 130, 9: 704

3. Multifariousness.

89. A bill is not multifarious because a large number of insurance companies join in it to set aside an award against them all upon a joint submission, for misconduct of the arbitrators. Hartford F. Ins. Co. v. Bonner Mercantile Co. (Č. C. D. Mont.) 44 Fed. Rep. 151, 11: 623

b. Bringing in; Intervention.

15: 825

96. New parties complainant may be admitted in an equity proceeding as their interests arise, if their admission does not increase the burden of the defense. Symonds v. Jones, 82 Me. 302, 8: 570

97. Bringing in one of the beneficiaries who is a necessary party in an action for causing the death of a person, after the expiration of the time allowed for bringing the suit, obviates an objection for nonjoinder of a necessary party, although the action as to such party is dismissed on a plea of the Statute of Limitations. East Line & R. R. R. Co. v. Culberson, 72 Tex. 375, 3:567

98. Creditors whose attachments have been dissolved by an assignment for benefit of creditors may intervene under Wash. Code, 1881, § 1997, in proceedings for the foreclosure of a chattel mortgage on the debtor's property, to contest the right to foreclose such mortgage as against their rights. Ephraim v. Kelleher, 4 Wash. 243, 18: 604

c. State; Officers; Arbitrators.

99. The objection that the state is not a party to a suit to restrain execution against the property of a canal company, and therefore that the state's mortgages ought not to be set up to shield the property against execution, is not valid where the state is a party to a suit in which a sale of the property to satisfy the mortgages is made. Brady v. Johnson (Md.) 75 Md. 445, 20: 737

90. A bill is not multifarious, although the claims of the several complainants arose under different contracts, if they are pursuing, upon the same grounds and for the same reasons, a common trust fund in which they are jointly interested. Langdon v. Central R. & Bkg. Co. (C. C. S. D. Ga.) 37 Fed. Rep. 449, 2: 120 91. A bill to subject real estate of the three members of a firm to the payment of one judgment against the firm, and one against two 100. The attorney-general is the proper party partners, is not multifarious as to the third to represent the interests of the public in a suit partner, since he is interested in having the brought under Mass. Pub. Stat. chap. 142, real estate of his partners subjected to the pay-S3 14-17, by the heirs and next of kin of a de

e. Trusts.

ceased person, to establish and authorize a
compromise between themselves and a certain
town to which decedent bequeathed property See also infra, 133.
in trust for purposes of a public charity; indi-
vidual inhabitants of the town have no such
interest in the subject-matter that they can be-
come parties to the proceeding and appeal
from the judgment rendered therein. Bur-
bank v. Burbank, 152 Mass. 254, 9: 748
See also supra, 17, 18.

111. In a suit to declare railroad mortgage bonds void, the bondholders must be made parties, and the trustees of the mortgage cannot be made defendants as their representatives. Harrisburg & E. R. Co.'s Appeal (Pa.) (Not to be Rep.) 1: 230

112. The person in whom the legal title to property is vested in trust for a married woman is a necessary party to a bill seeking to charge the property with the payment of money paid to her. Prentiss v. Paisley, 25 Fla. 927, 7: 640 113. The issue of a woman has not a vested

101. Under N. Y. Code Civ. Proc. § 1926, the town supervisor is the proper party to present and prosecute before the state board of claims a claim for damages to a highway, caused by the negligence of the canal officials. Bidelman v. State, 110 N. Y. 232, 1: 258 102. The claimant of an office the title to which is disputed is a necessary plaintiff in interest in real estate devised in trust during the action, and the officer de facto in actual her life to apply the income to her use, and possession is the necessary defendant. Guil-upon her death to convey to her issue if she lotte v. Poincy, 41 La. Ann. 333, 5: 403 leaves any surviving, in such shares as she 103. The mayor of the city is not a necessary shall appoint, otherwise to them in equal party to a suit to set aside the water rates shares per stirpes, and if she leaves none then established by the board of supervisors. to other persons, which will make such issue Spring Valley Waterworks v. San Francisco necessary parties to a suit against the trustees, City & County, 82 Cal. 286, 6: 756 as the latter take the title in fee. Green v. 104. Arbitrators are not necessary parties Grant, 143 Ill. 61, 18: 381 to an action to set aside their award. Hartford F. Ins. Co. v. Bonner Mercantile Co. (C. C. D. Mont.) 44 Fed. Rep. 151, 11: 623

d. Receiver; Corporation; Partner; Carrier.

105. An agent appointed in the place of the receiver of a national bank is only the successor of the receiver in interest, and may be substituted as plaintiff in a suit previously begun by such receiver. McConville v. Gilmour (C. C. S. D. Ohio) 36 Fed. Rep. 277, 1: 498 106. The receiver of a railroad company is not, after his discharge, either a proper or necessary party defendant to an action for a rebate of freight under a contract made by him. Bayles v. Kansas P. R. Co. 2 Inters. Com. Rep. 643, 13 Colo. 181, 5: 480 107. Where fraudulent representations as to the value of property to be furnished as part of the plant of a corporation to be organized are made to induce a person to become a stockholder therein, he, and not the corporation, is the proper party to maintain an action for such fraud. Teachout v. Van Hoesen, 76 Iowa, 113, 1: 664 108. Where it is claimed that certain persons are unlawfully claiming to be, and are exercising the functions of, a corporation which never had an existence, such persons are the proper parties to be proceeded against, and the alleged corporation is not a proper defendant. People, Attorney-General, v. Stanford, 77 Cal. 360, 2: 92

109. The joinder or nonjoinder of a dormant partner will not constitute any objection to the maintenance of a suit in any manner whatever. Smith v. Ayrault, 71 Mich. 475, 1: 311 110. A carrier liable for the destruction of cotton in the hands of a compress company as its agent is a necessary party to an action by the owner of the cotton to recover from the company for its breach of a contract with the carrier to procure insurance on the cotton. Deming v. Merchants Cotton-Press & S. Co. 90 Tenn. 306, 13: 518

114. The beneficial owner of a claim, who was also a party to the contract upon which the action is based and which is brought by one holding the legal title to it as the "real party in interest," is properly joined as defendant when he refuses to unite with the plaintiff. Central City First Nat. Bank v. Hummel, 14 Colo. 259, 8: 788

115. An action against cestuis que trust may be maintained without having any trustee as a party, where there is a vacancy in the trusteeship. Hughes v. Brown, 88 Tenn. 578,

8: 480

118. A married woman may sue for injuries to her person without joining her husband, where, without her fault, he has deserted her and left the state without intention of returning. Wolf v. Bauereis, 72 Md. 481, 8: 680

119. A husband and wife may maintain a joint action for the breach of a contract made with them jointly, by which a third person undertakes to take charge of and safely keep the remains of their deceased child until they are ready to inter the same. Renihan v. Wright, 125 Ind. 536, 9: 514

120. The husband is not a necessary party to an action by his wife against another