32 rmnmmn nmronrzn.
» suits, according to its practice, this court would have dismissed the
action at law for misjoinder of defendants, but have retained the
equity branch, notwithstanding the objection on the ground of mis-
joinder and multifariousness? This is just what the supreme court
of Nevada did, even without dividing the case into two suits. There
are many other authorities, not necessary to mention, tending more
or less strongly and directly to the same conclusion.
I also think this bill maintainable against all the defendants on
the jurisdictional ground of avoiding a multiplicity of suits. There
is a common interest,—a common though not joint right claimed;
and the action on the part of all the defendants is the same in con-
tributing to the common nuisance. The rights of all involve and de-
pend upon identically the same questions, both of law and fact. It
is one of the class of cases, like bills of peace and bills founded on
‘ analogous principles, where a single individual may bring a suit
against numerous defendants, where there is no joint interest or title, ,
but where the questions at issue and the evidence to establish the
rights of the parties and the relief demanded are identical. With-
out analyzing and discussing the numerous cases upon the subject
separately, this case appears to me to be clearly within the principle ,
stated in and established by the following and many other authori-
_ ties that might be cited. 1 Pom. Eq. §§ 256-269, and notes. In
this, and the preceding sections, Professor Pomeroy clearly analyzes
and satisfactorily classifies the cases on this subject. Mayor of York
v. Pilkington, 1 Atk. 283-4; Shefield Water-works v. Yeomana, L. B.
_ A 8 Ch. 8, 11; Ware v. Harwood, 14 Ves. 28-33; Bd. of Sup’rs v.
J Deyoe, 77 N. Y. 219; Schuyler Fraud Cases, 17 N. Y. 592; Cent. P.
R. Co. v. Dyer, 1 Sawy. 650: Gaines v. Chew. 2 How. 642; and Oli
ver v. Piatt, 3 How. 412.
In Gaines v. Chew the supreme court of the United States says:
“ It is well remarked by Lord COTTENHAM, in Campbell v. Mackay, 7 Sim.
564, and in 1 Mylne Sz; Craig, 603, ‘to lay down any rule, applicable univers-
ally, or to say what constitutes multifariousness, as an abstract proposition,
is, upon the authorities, utterly impossible.’ Every case must be governed by
its- own circumstances,- and as these are as diversified as the names of the
parties, the court must exercise a sound discretion on the subject. While par-
ties should not be subject to expense and inconvenience in litigating matters in
which they have no interest, multnvlieity of suite should be avoided by uniting
in one bill all who have an interest in the prirwipal matter in controversy,
though the interest may have arisen under distinct contracts."
And this is substantially repeated in Oliver v. Piatt, 3 How. 412.
Thus it is seen that there is no iron, inelastic rule on the subject of