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THE GREEN BAG

each the extent of the liability assumed in each is to be measured by the total amount insured by all of them. It is necessary, then, in order to determine the amount which the plaintiff is entitled to recover against each of the defendants herein, to conclu sively determine, as against each, two ques tions in which there is a community of in terest among all of the defendants, namely, the amount of the plaintiff's loss and the amount of his valid insurance upon the property lost or damaged by fire. ... A verdict or decision on the question as to the amount of the loss and the total amount of the insurance necessarily affects and binds all parties to the action, and they have a community of interest therein. ... If a separate action against each defendant be his only remedy, he must bring six actions instead of one, in each of which the same evidence on the two essential questions must be gone over, and the law applicable thereto determined, with the not improbable result that the amount of his loss and the amount of his valid insurance will be fixed at a different amount in each case. ... It is clear upon principle and authority that equity has undoubted jurisdiction to pre vent the necessity for such a multiplicity of actions and to afford the plaintiff a cer tain and adequate remedy." And to like effect is the older and leading case of Fuller v. Detroit Fire and Marine Ins. Co. (1888) 36 Fed. 469. Xor is the rule different in code states where distinctions between law and equity have been abolished and where it is ex pressly provided that separate causes of action on contract can be joined only where they all affect every party to the action. For such code provision is merely declara tory of previously existing rules and does not establish any new principles. Mahler v. Schmidt, 43 Hun. 512. And further more each cause of action does affect every defendant, and the several companies by stipulating to apportion the loss may well be said to have to that extent united and

consolidated all the policies into one con tract. Such was the holding in Pretzfelder v. Ins. Cos. (1895) 116 N. C. 491, based upon section 267 of the North Carolina Code, which is substantially the same as section 484 of the New York Code of Civil Pro cedure as to joinder of causes of action. It may be urged, however, that the sev eral causes of action cannot be said to affect or interest all of the- defendants where the loss is so far in excess "of the whole insur ance that each company "must pay the face of its policy if its liability be shown at all. That might be true if it could appear on the face of the complaint that no question could possibly arise in the trial as to the amount of all the insurance or the amount of the loss. But such a situation is not conceiv able, for in every instance it must be open to one or more of the insurers to call in question the amount of the loss, and in no instance can this question! be finally and conclusively settled as against the insurers until its final determination • by trial and judgment of the court, long. after the pre liminary question of proper or improper joinder of causes of action or of parties has been fixed and settled. The language of the several forms of poli cies varies slightly as to the pro rata clause, and this should be remembered in consid ering the decisions above quoted. But no stress is laid upon this feature in the cases, and it can have no effect upon the question of joinder. For if the clause provides for pro rating with the "valid insurance" or with the "whole insurance" on the prop erty, then every company is interested in and may be affected by the question of what is valid insurance or what is the whole insurance; and if the clause refers, as in the New York Standard Form policy, to the whole amount of insurance "whether valid or not," there is still the open question whether any particular policy or "binder' was in existence as insurance of any kind at the time of the fire either valid or invalid. An example of this is seen where the