MISJOINDER. In Pleading. The im proper union of parties or causes of action in one suit at law or in equity.
Of Actions. The joining several demands which the law does not permit to be joined, to enforce by one proceeding several distinct, substantive rightsof recovery. Gould, Plead. c.1, 98 ; Archbold, Ci v. Plead. 61 ; Dane, Abr.
In equity, it is the joinder of different and distinct claims against one defendant, 1 Mylne & Ch. 608; 7 Sim. Ch. 241 ; 3 Barb. Ch. N. Y. 432, and is distinguished from multifariousness, which may exist only where there are several defendants disconnected with each other. Story, Eq. Plead. 297, n. Ths grounds of suit must be wholly distinct, and each ground must be sufficient, as stated, to sustain a bill. 5 Ired. Eq. No. C. 313. See 21 Ala. N. s. 252 ; 9 Ga. 278 ; 3 Md. Ch. Dec. 46 ; 22 Conn. 171.
2. It may arise from the joinder of plain tiffs who possess distinct claims, 2 Sim. Ch. 331 ; 6 Madd. Ch. 94 ; 8 Pet. 123 ; but see 3 Harr. 412 ; 6 Johns. Ch. N. Y. 150 ; 8 Paige, Ch. N. Y. 605, or the joinder of distinct claims of the plaintiff in one bill. 2 Sim. & S. Ch. 79. But it seems that where there is a com mon liability of the defendants and a com mon interest in the plaintiffs, different claims may be united in the same suit. 1 Mylne & C. 623 ; 3 id. 85 ; 5 How. 127 ; 12 Mete. Mass. 323. And see 7 Sim. Ch. 241 ; 3 Price, Exch. 164 ; 2 Younge & C. Ch. 389 ; Story, Eq. Plead. 536, n.; MULTIFARIOUSNESS.
At law, misjoinder vitiates the entire decla ration, whether taken advantage of by gene ral demurrer, 1 Maule & S. 355, motion in arrest of judgment, writ of error. 2 Bos. & P. 424; 4 Term, 347. It may be aided by ver dict in some cases. 2 Lev. 110 ; 11 Mod. 196; 2 Maule & S. 533 ; 1 Chitty, Plead. 188.
3. Of Parties. The joining, as plaintiffs or defendants, parties who have not a joint interest.
In equity, the joinder of improper plaintiffs is a fatal defect. 2 Sandf. Ch. N. Y. 186 ; 3 Edw. Ch. N. Y. 48 ; 2 Ala. N. s. 406. But the court may exercise a discretion whether to dismiss the bill. 1 Barb. Ch. N. Y. 59 ; 3 Ohio St. 129. See 5 Fla. 110. It may be dismissed wholly, or only as to a portion of the plaintiffs. 18 Ohio, 72. The improper joinder of defendants is no cause of objec tion by a co-defendant. 2 Barb. Ch. N. Y. 618 ; 6 Ired. Eq. No. C. 62 ; 7 Ala. N. s. 362; 12 Ark. 720 ; 23 Me. 269. See 7 Conn. 387.
The objection must be taken before the hear ing, 15 How. 546 ; 2 Hill, Ch. So. C. 567 ; 4 Paige, Ch. N. Y. 510; not, however, if it be vital, 30 N. II. 433 ; by demurrer, if appa rent on the face of the bill, 9 Paige, Ch. N. Y. 410 ; 7 Ala. N. s. 362 ; but see 5 Ill. 424; by plea and answer ; or otherwise. 13 Pet. 359 ; 1 T. B. Monr. Ky. 105. A defendant who is improperly joined must plead or de mur. 1 Mo. 410. At law, see ABATEMENT ;