Nothing indeed is better settled than that, where by fraud a party has gained an unfair advantage in proceedings in a court of justice which must operate to make the court an instrument of injustice, as where a default is taken after other arrangements have been made between counsel for the disposition of the cause, equity will interfere and restrain such party from reaping the fruits of the advantage gained.1 There may be such misconduct on the part of the judge as will warrant a new trial. Clear proof of any corruption in favor of one of the parties will of course afford good ground to the opposite party, if defeated, for another trial. And the same will be true of far less serious offences. If for example the judge should write a letter to the jury, after the adjournment of the court, relating to the cause committed to them, a new trial would be granted.2 So too if, without the consent of the parties, the judge should visit the jury in their consulting room. But if such a visit should be made on request of the jury, with the knowledge of either party, his consent will be implied. So too if after retiring the jury are allowed by the judge, at their own request, but without the knowledge of the parties, to have a copy of the statutes for examination, the verdict cannot stand.5 1 Bresnehan v. Price, 57 Mo. 422. 2 Sargent v. Roberts, 1 Pick. 337. 3 Hoberg v. State, 3 Minn. 262. 4 Hancock v. Salmon, 8 Barb. 564. 5 Merrill v. Nary, 10 Allen, 416. See State v. Smith, 6 R. I. 33. CHAPTER VII. JOINDER OF PARTIES. WHERE an action lies in favor of two or more jointly, the general rule at law, though not in equity,' is that the action must be brought by all together. This is the rule in cases of contract, and it applies to torts committed against joint contractors or partners. The same reason is applicable to both cases; the interest is joint, and the defendant ought not to be subjected to two suits for one and the same entire cause.' But this could not be necessary, though it may be permissible, where the joint contracting parties defrauded have separate or several interests. Thus if A by one and the same deed and covenant leases Blackacre to B and Whiteacre to C, by fraudulent representations, B and C, the joint covenantees, may each maintain his action against the lessor; and of course the death of either cannot affect the right of action of the other, whether the right of action in the other survives or not. And if the fraud were perpetrated upon but one of the covenantees, in such a case, he would not, it seems, be required to join his associate. Apart from statute several persons having distinct and individual rights of action for fraud against the same 1 Canal Co. v. Gordon, 6 Wall. 561. 2 Gould, Pleading, 186, 5th ed. 8 Farley v. Lovell, 103 Mass. 387; 4 Larsen v. Groeschel, 98 Ind. 160. 9 7 See chapter 'The Party Defrauded,' as to survivorship. 8 See Canal Co. v. Gordon, 6 Wall. 561, infra, p. 109; and comp. Prince v. Shepard, 9 Pick. 176, that an assignment may be fraudulent as to one of two assignees and valid as to the other. Field v. Holzman, 93 Ind. 205. See the converse, infra. person cannot join in a common suit against him; otherwise if the fraud was accomplished in a joint transaction.1 Where a release is fraudulently obtained from one of two joint contractors, the releasing party, though he might repudiate the release in a suitable case and then join his associate in the action, is not a necessary party to a bill filed by his cocontractor against the opposite party to the contract.2 But where the releasing contractor, e. g. a partner, has joined with the opposite party in fraud upon the associate contractor, the releasing contractor cannot be made a party to a suit against the person released, since he has consented to the fraud; the injured party therefore sues in equity, where joinder would not be necessary. In regard to defendants the rule at law is that all persons concerned in fraud, whether by preconcert or conspiracy or not, may be joined. On the other hand, according to the law of this country, it is not necessary to join parties at law at all, though they were in fact guilty of preconcert or conspiracy; a joint tort may here be treated as a several wrong. The rule is different in England; and it may be that a different rule would be held here of fraud committed by joint tenants, joint contractors, or partners. It is clear that two persons cannot be sued in one action for distinct frauds committed by them severally against the same person; several distinct torts cannot be treated as joint.9 On the other hand if two are joined in an action for fraud, and it turns out that but one is guilty, the suit against the other 1 Levering v. Scherell, 78 Mo. 167. 2 Canal Co. v. Gordon, 6 Wall. 561. 8 Noyes v. New Haven R. Co., 30 Conn. 1; Farley v. Lovell, 103 Mass. 387; Homer v. Wood, 11 Cush. 62. 4 Ib. 5 Gould, pp. 190, 194. Ib.; Lovejoy v. Murray, 3 Wall. 1; Sessions v. Johnson, 95 U. S. 347; Luce v. Dexter, 135 Mass. 23; Morgan v. Chester, 4 Conn. 387; Gilbreath v. Jones, 66 Ala. 129; United Soc. v. Underwood, 11 Bush, 265. See Weber v. Weber, 47 Mich. 569. 7 Brinsmead v. Harrison, L. R. 6 C. P. 584. 8 Comp. Gould, p. 195. may be dismissed and judgment rendered against the guilty party.1 The rule in equity in regard to parties defendants is that all whose interests would be materially affected by the decree sought to be obtained, such as purchasers under different deeds, must be before the court.2 Hence where a minority of stockholders and bondholders of a railroad company seek to set aside as fraudulent a sale and foreclosure of mortgage made through the co-operation of the other stockholders and bondholders, the bill must make not only the purchaser a party, but also the consenting stockholders and bondholders.3 But stockholders of a corporation, who have been allowed to put in answers in the name of a corporation, cannot be regarded as answering for the corporation itself. In a special case however where there is an allegation that the directors fraudulently refused to attend to the interests of the corporation, a court of equity will in its discretion allow a stockholder to become a party defendant for the purpose of protecting from unfounded claims against the company his own interests and the interests of such other stockholders, as choose to join him in the defence. In an action against directors of a mutual insurance company for refusing to pay a loss, when they had funds wherewith to do so, but which they have fraudulently applied to other purposes, the insurance company should be made a party.5 In an action in equity by innocent partners against their late associate who has fraudulently sold firm property to himself and others, the latter are or are not necessary parties according as they are innocent of the fraud or not.1 This was held in a case of the kind, in which a retiring partner having made the sale at an undervaluation, a bill was filed to settle the affairs of the old firm, and incidentally to set aside the sale so far as the price had been fixed by agreement, and to charge the defendant partner with the fair value of the property.2 Several other illustrations of the rule of joinder of parties in equity may be given: A note and mortgage executed to a railroad company, which were procured by fraudulent representations, having been transferred to a city to secure it against liability on its bonds issued in aid of the road, the claim that the bonds are invalid for want of authority in the city to issue them will not be determined, and the city required to deliver up the note and mortgage to the maker, unless the holders of the bonds are not only made parties to the suit for such purpose, but so subjected to the jurisdiction of the court that it may compel a surrender of the bonds.3 Where too judgments are impeached and sought to be set aside in equity for fraud, the plaintiffs in such judgments are indispensable parties to the bill, and no decree can be rendered in favor of the complainant without making them parties. It is not enough that the defendant admits himself to be the owner of the judgment, since such an admission may be collusive.5 On a bill in equity by heirs to set aside a deed procured from the ancestor by fraud, a sale of the estate being desired to pay the charges equitably due the grantee for advances, it 304; Scott v. Eagle Fire Ins. Co., 7 Paige, 198. 1 Farley v. Lovell, 103 Mass. 387. See Whittemore v. Cowell, 7 Allen, 446. 313. 2 Farley v. Lovell, supra. 8 Burhop v. Roosevelt, 20 Wis. 338. 5 Marshall v. Beverley, 5 Wheat. |