payment, and which have not been paid to the persons entitled thereto."

By section 2512, Rev. St. 1878, the city treasurer annually at the time of paying over the state and county taxes is required to pay over to the county treasurer all fines and penalties collected in criminal cases.

WINSLOW, C. J.:

The statute which made it the clerk's duty to pay over all the moneys in question into the city treasury, regardless of the question of their ultimate disposal, provided that the bond to secure the performance of this duty should be executed and delivered to the city, thus expressly constituting the city as the obligee and necessarily the proper party to maintain an action on the bond for breach of any of its conditions. While the code requires that actions shall be brought in the name of the real party in interest (St. 1898, § 2605), the present case is unquestionably brought by the statute within the provisions of section 2607, which authorizes the trustee of an express trust or a person expressly authorized by statute to sue without joining with him the person for whose benefit the action is brought. State v. Wettstein, 64 Wis. 234, 25 N. W. 34.

SECTION 2. JOINDER OF PLAINTIFFS.1

(a) When Suing for Themselves.

GRAY v. ROTHSCHILD.

Supreme Court of New York. 1888.

48 Hun, 596.

DANIELS, J.: The plaintiffs consist of seven different firms, who sold goods at different times, to the defendants, Charles M. Rothschild and Jacob M. Rothschild, who were

1 JOINDER OF PARTIES PLAINTIFF AND DEFENDANT.

All of the codes have substantially the following provisions relative to the joinder of parties.

1. "All persons having an interest in the subject of the action, and in

copartners, carrying on business in the city of New York under the name of Charles M. Rothschild & Co. It was alleged, in support of their right to maintain a joint action against the purchasers of the goods, together with Jacob M. Rothschild and Abraham Rothschild, that the goods had been obtained by means of false representations, and that the purchasers, together with the two other defendants, had entered into a conspiracy under which these goods, and others, were to be purchased on credit, and the firm of Charles M. Rothschild & Co. were to defraud the vendors out of the purchase prices by removing, secreting and disposing of the goods, and that this conspiracy had been carried into execution. The action was not for the recovery of the goods themselves, or a rescission of the sales made, but for the recovery of damages amounting to the aggregate sum owing to the several firms, joined as plaintiffs, for the sale of their goods and merchandise. The defendants demurred to the complaint, alleging in sup

obtaining the relief demanded, may be joined as plaintiffs, except as in this chapter otherwise provided.'

2. "Any person may be made a defendant who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party to the complete determination or settlement of the question involved therein.'

3. "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 can not be obtained, he may be made a defendant, the reason thereof being stated in the complaint."

4.

"Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may all or any of them be included in the same action, at the option of the plaintiff.

See Alaska, Carter's Ann. Codes, 1900, §§ 34, 38, 39; Arizona, Rev. Stat., 1901, §§ 1306, 1307, 1313; Arkansas, Kirby's Digest, 1904, §§ 6005, 6006, 6007, 6009; California, Kerr's Codes, 1908, Code Civ. Pro., §§ 378, 379, 382, 383; Colorado, Rev. Stat., 1908, Code Civ. Pro., §§ 10, 11, 12, 13; Connecticut, Gen. Stat., 1902, §§ 617, 618; Idaho, Rev. Codes, 1908, §§ 4101, 4102, 4105, 4106; Indiana, Burn's Ann. Stat., 1908, §§ 263, 269, 270, 271; Iowa, Code, 1897, § § 3460, 3462, 3463, 3465; Kansas, Gen. Stat., 1909, § § 5627, 5628, 5629, 5631; Kentucky, Carroll's Codes, 1895, §§ 22, 23, 24, 26; Minnesota, Laws, 1905, § 4062 (4th provision, supra); Missouri, Ann. Stat., 1906, §§ 542, 543, 544, 545; Montana, Rev. Codes, 1907, § 6487, 6488, 6491, 6492; Nebraska, Comp. Stat., 1911, §§ 6607, 6608, 6609, 6611; Nevada, Comp. Laws, 1900, §§ 3107, 3108, 3109, 3110; New Mexico, Comp. Laws, 1897, § 2685, sub-secs. 4, 5, 6, 7; New York, Chase's Code Civ. Pro., 1910, §§ 446, 447, 448; North Carolina, Revisal of 1905, §§ 409, 410, 411, 412; North Dakota, Rev. Codes, 1905, §§ 6815, 6816, 6818, 6819; Ohio, Gen. Code, 1910, §§ 11254, 11255, 11256, 11258; Oklahoma, Comp. Laws, 1909, §§ 5567, 5568, 5569, 5571; Oregon, Lord's Laws, 1910, Code Civ. Pro., § 37 (4th provision, supra); South Carolina, Code of Laws, 1902, Code Civ. Pro., §§ 138, 139, 140, 141; South Dakota, Rev. Codes, 1903, Code Civ. Pro., §§ 87, 88, 89, 90; Utah, Comp. Laws, 1907, §§ 2913, 2914, 2917, 2918; Washington, Rem. & Bal. Codes, 1910, § 189 (containing the substance of the first three provisions, supra, in abbreviated form), 192; Wis consin, Stat. 1898, §§ 2602, 2603, 2604, 2609; Wyoming, Camp. Stat., 1910, $ 4323, 4324, 4325, 4327.

port of the demurrer, a misjoinder of plaintiffs; that causes of action had been improperly united, and that the complaint did not state facts sufficient to constitute a cause of action. And the court, at the trial, sustained the demurrer on the ground of a misjoinder of parties, and that several causes of action were improperly united in the complaint. The accuracy of this decision has been resisted by the plaintiffs, chiefly under the authority of section 446 of the Code of Civil Procedure. This section has provided that all persons having an interest in the subject of the action, and in obtaining the judgment demanded, may be joined as plaintiffs, subject to exceptions not required now to be noticed. But this section of the code does not support the case, as the plaintiffs disclose it by their complaint, for each one of the firms in selling their goods, if the facts have been correctly set forth in the complaint, is entitled to maintain a separate action for damages against the purchasers and the two other persons implicated in the conspiracy, and that is all the relief, as the facts have been presented, which either one of the firms would be entitled to obtain. There is no joint subject of action in this case, neither can any joint judgment be recovered in the action under the authority of this section, but each one of the firms have a separate and distinct cause of action against the defendants, upon which, in case of a recovery, a separate judgment would necessarily be entered. The subject of the action is the recovery of the damages sustained by each one of the firms in the sale of their own goods. Each sale was distinct from all the others, and made upon fraudulent representations inducing such sale. There was no concurrent or joint action by the several firms, whose members have been joined as plaintiffs, in the sales of their respective goods, but each firm proceeded and transacted the business for itself. And for the value or price of its goods, if the facts are truthfully alleged in the complaint, each firm is entitled to a separate and distinct recovery. And no facts are alleged in the case in any form which would secure to the plaintiffs joint relief by way of a joint judgment. The case, by no construction which can be placed upon this section of the code, is in such a condition as to be maintained by these several firms as the plaintiffs in one action, and no other provision of the code has gone

C. P.-6

so far as to permit separate actions for damages to be presecuted and sustained in this form.

Authorities have been assiduously collected and cited which are relied upon as sustaining so broad a rule of practice, as to permit this action to be sustained in its present form in behalf of all these different firms. They are cases which have arisen in courts of equity allowing actions to be maintained by persons severally interested in the subject-matter of the action and affecting all alike. In that class of cases an action is allowed to be maintained by all parties interested, in obtaining the same relief, but they have no application to this action, for these different firms are not entitled to any joint, or final relief, by way of a single judgment; what they are entitled to, if they can maintain their actions at all, is the damages which each firm has sustained by means of the sale of its own goods induced by fraudulent representations made to it. There is no joint subject-matter to be either set aside or maintained, as there was in the case cited on the argument, and no joint interest in the action. It is not proposed either to set aside or restrain the effect or progress of the alleged conspiracy, but all that is proposed is the recovery of damages to be apportioned to the goods sold by each one of these distinct and separate firms. The general principle so far as it has been extended by courts of equity allows separate plaintiffs having separate interests to join in an action for relief only where a common object is to be secured by the prosecution of the action. When that is not the case persons having distinct and independent claims against the defendant cannot join in a suit for the separate relief of each.

The case of Goodnight v. Goar (30 Ind., 418) is an authority directly against the plaintiff's action, for there it was held that a joint action on an agreement by several persons to pay a proportionate part of what either should pay for a substitute, in case either should be drafted, could not be maintained. But that the suit for contribution must be maintained against each person separately who had bound himself by the agreement. The case of Wood v. Perry (1 Barb., 114), is likewise opposed to the right of the plaintiffs to maintain this action jointly and so is that of Emery v. Erskine (66 Barb., 9), and, also, Howell v. City of Buffalo (2 Abb. Ct. of App. 412). This decision.

has been assailed by the counsel for the plaintiffs as erroneously made, but it has the support of the general principle already mentioned, observed and enforced in courts of equity, that persons having distinct and independent claims to relief cannot, unless the case is a peculiar one, join in the prosecution of one action. There the property of the several plaintiffs had been sold for the non-payment of separate amounts assessed for an improvement. The object of this action was to restrain the execution and delivery by the city of certificates of sale, upon the allegation that the assessments were unlawful. The certificates when issued would affect only the property of each different owner. They would have no joint effect upon any of the property. And it was held by the court, chiefly for that reason, that the action could not be maintained, each plaintiff having only a separate and distinct right of action for relief in which the others were in no manner interested or identified. In all the cases containing any reference whatever to separate and distinct claims for damages, the decisions have been guarded by the conclusion previously stated, that a joint action by several and distinct parties claiming several and distinct damages, cannot be maintained. Any other rule would be attended with so much perplexity, intricacy and confusion at the trial, as to render the jury before which the action must necessarily be tried next to incapable of deciding and disposing of it. If this action could proceed to trial seven different causes of action would be presented for the hearing and decision of the jury, and it would be extremely difficult for them to carry in their minds anything like an intelligent recollection of the evidence given, affecting so many different rights of action. A rule allowing the several and distinct firms to join in the prosecution of one suit for damages would not only be attended with the greatest embarrassment, but would result in probable injustice to one or more of the parties from misapprehensions or oversight of evidence. The demurrer was properly sustained at the trial and both the judgment and order should be affirmed.

VAN BRUNT, P. J., and BRADY, J., concurred.

Judgment affirmed, with costs.