^ THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW I PARTIES TO ACTIONS. THE LAW ^^. KESPEcrnro P^OITIES TO ACTIONS, LEGAL AND EQUITABLZ. EOKACE HA^Wi:S, COUNSELLOB AT LaW. SAX FEANCISCO: SUiilKER AVHITXEY & CO. 1881. Copyright 1884, By Horace Hawes. ^ ^ PEEFACE. The author has endeavored in this work to give the gist of the decisions of the courts of this country upon the subject of Parties to Actions, as concisely as consistent with a full pre- sentation of the points decided, and by arrangement of the sub- ject-matter and index, to place this information at the "finger tips " of the busy lawyer ; designing the work for the desk of the practioner, rather than for the shelf of the scholar. To this end he submits the result of his labors to a candid pro- fession, trusting that, in a measure, his desires have been accomplished. HOKACE HAWES. San Fkancisco, August, 1883. CONTEXTS. CHAPTER I. PARTIES, THEIR RIGHTS AXD RE2IEDIES. g 1. Who are parties. § 2. Real and nominal parties, 1 3. Of the name of the party. § 4. Of the description, personal capacity, etc. § 5. Who may become parties. 2 6. Of the position of a party upon the record, 2 7. Who are bound by legal proceedings § 8. Of the rights of parlies to a suit. 2 9. Generally of the remedies of a party. CHAPTER n. JURISDICTION. ? 10. Definition, etc. § 11. How acquired. 2 12. By attachment — Publication. 2 13. By publication. 2 14. Of appearance. 2 15. Who may appear, and how he may appear. 2 16. Effect of appearance. 2 17. Withdrawal of appearance. CHAPTER in. NECESSARY JlSD PROPER PARTIES. 2 18. What persons should be made parties to an action 2 19. Exception to the general rule. viii coNTE^'TS. { 20. Who are not necessary parties to a suit. I 21. To estates of the insane, minors, married women. 1 22. To the estates of decedents. 5 23. To trust estates. § 24. In suits by creditors, assi(?nees, sureties. ? 25. In suits by co-partners' corporations. ? 26. In suits relating to land and land titles. 2 27. In suits to enforce liens. i 28. In bills to redeem, for partition, Injunction. CHAPTER IV. ALIENS, XON-EESIDENTS, INDIANS, TRl'STEES, ASSIGNEES, ETC. i 29. Aliens, non-residents, and Indians. g 30. To enforce a public right. i .31. Generally in actions upon contracts. § .32. Trustees, actions by. § 33. Trustees, actions against. § 34. Assignor and assignee, actions by. ? 3.5. Same continued — Actions upon promissory not § .36. Contracts under seal, bonds, covenants, etc. ? 37. Contracts made for the benefit of third persons. 2 38. Generally iu actions for torts. CHAPTER Y. STATES, COUNTIES, CITIES, ANT) TOVTSS. i .39. States, their rights to sua. 2 40. States, suits against. 2 41. Counties, suits by. { 42. Counties, suits against. § 43. CitieS: suits by. I 44. Cities, suits against, J 45. Towns, suits by. § 4G. Towns, suits against. COXTZXTS. IS- CHAPTLR VI. PUBLIC OFFICKBS. ? 47. Generally suits by and against. ? 48. Governor, attorney-general, suits by and against. I 49. Judicial officers, suits by and against. I 50. Treasurer, suits by and against. I 51. Sheriff, suits by and against. { 52. Receivers, suits by and against. CHAPTER Yn. BA>-KKrPTS AXD rN'SOLYES'TS. ? 53. Bankrupts, actions relating to estates of. ? M. Bankrupts continued. I 55. Insolvents, actions relating to estates of. CHAPTER Till. INFANTS, ES'SA>-E PEPvSOXS, IDIOTS. 5 56. Infants, suits by. I 57. Infants, suits by, continued. § 58. Infants, suits against. ? 59. Infants, suits against, continued. 5 60. Infants, suits against, judgment, etc. 5 61. Insane persons, idiots, etc., suits by. ? 62. Insane persons, idiots, etc., suits against. CHAPTER IX. HUSBAND AND ^VITE. ? 63. Husband and wife generally, suits bj'. I 64. Suits upon contracts. I 65. Suits for torts to the wife. I 66. Suits relating to the separate property of the -n-ife. X CONTESTS. ? 67. Suits between hiisbnnd and wife. } 68. Suits aealiist husband an-DEB OF PAETIES, AilENDSrENT AJSD >-EW PAETIES. 5 100. Misjoinder and non-joinder, how the defect may be taken advantage of. > 101. Who may take advantage of a defect of parties. ; 102. Generally of defect of parties plaintiff, of amendment. ' 103. Generally of defect of parties defendant, of amendment. !' 104. Generally of new parties. CHAPTER XYI. ABATEMENT, EEVITOE, ETC. 10.5. Generally of abatement. 106. Of the substitution of parties. § 1C7. Changeof interest after suit commenced, before judgment. } 108. Change of interest after judgment and pending appeal. CHAPTER XVII. INTERVENTION. 1 109. Generally of intervention. ? 110. Of the interest necessary to entitle a person to intervene. 2 111. Of the rights of intervenors. CHAPTER XTIII. INTERPLEADER. 2 112. Definition and nature of interpleader. 2 113. When a bill of interpleader may be maintained. 2 114. Who may file a bill of interpleader. 2 115. Effect of interpleader. PARTIES TO AX ACTIOX. CHAPTER I. PARTIES, THEIR RIGHTS AXD EEiCEDIES. 2 1. "Who are parties. ? 2. Real and nominal parties. ? 3. Of the name of the party. ? 4. Of the description, personal capacity, etc. § 5. Who may become parties. § G. Of the position of a party upon the record. I 7. Who are bound by legal proceedings. ? 8. Of the rights of parties to a suit. I 9. Generally of the remedies of a partyl § 1. Who are parties. — As a rule, those persons only are parties ■who have been made such in the manner provided by- law;^ who are interested in the subject-matter of the suit, and have a right to make a defense, control the proceedings, appeal, etc.^ The t.rm "party," as used in the statute, re- quiring the coroner to execute within his county all writs, etc., in which the sheriff thereof or his deputy is a party, means the person who is expressly named in the reeord as plaintiff or defendant.-* A person whose name appears in the body of the petition as the one for whom relief is asked, and wliose name is set out in the caption, is virtually party plaintiff. ■* The capacity in which he sues must distinctly appear. To prose- cute as A. B., or School District No. i5, is improper;^ so to name him in the caption is not enough ; the stating part of the bill ought to show his rights, and by whom he has been in- jured ; the persons mentioned as the authors the wrong are not made parties, unless process of subpoena or publication ia Parties - 2 g 1 RIGHTS AyT> REMEDIES. li prayed against thein;"^ nor are they obliged to notice a plead- ing until tlit'V have been served with process, or have entered an appLarance.^ If neither sued nor process prayed against them thtir voluntary appearance in the suit would not make them parties ; ^ nor would service of process upon them be sufficient to make them so," even though they were named as defendants if they were not required to appear.^" An action against the owners of a boat, without naming them and serving them with process, will not render them liable as defendants,^! but if they appear and submit to the jurisdiction of the court the plaintiff may be permitted to amend by naming them.^^ Jq Xew York none arc defendants in a chancery suit, unless process is prayed against them, or they are specifically named and described as Bucli ; '^ so when a necessary party is not named in the bill the mere fact that an answer was filed for him by a guardian ad lUe]n does not make him a defendant ; i* but if his name appears in the body of the petition, and he is recognized and treated as a party, the mere omission to write his name at the head of the petition will not render tlic judgment a nullity.^^ Appearing upon the record as agent, guardian ad litem, etc., does not make one a legal party further than the extent of his interest in sucli eapacity.''* One who executes a bond required by the Code of a claimant of attached property does not thereby make liimself a party; nor can judgment be rendered against him in the suit withotit rule or notice.'^ The United States will be recogniztd as a party plaintiff only when the record shows that it appears by tlie district attorney of the district in which the suit is prosecuted.' ** When a husband joins with the wife in the prosecution of an appeal, he thereby makes himself a party to the suit, as to any further proceedings ; ^^ but the fact that the wife joins the husband in a motion to sot aside a sale of the homestead made upon execution issued on a judgment against him alone will not make her a party to the suit. 2" The relator in an information by the attorney-general to enforce and in- quire into a public charity fund is not properly a party. It sometimes happens that he has an interest in the matter in dis- pute of the injury to which he has a right to complain ; in that 15 EIGHTS AND KEMEDLES. § 1 case his personal complaint is joined to and incorporated with the information and bill, and it is so termed ; but unless this is done he is not a party. ^^ The widow and next of kin are parties to a probate proceeding only when they participate in the con- testatio litis, or are formally made parties.'^- In case of a gen- eral creditor's suit, or where there is a fund in court, and there is an order for creditors to come in and assert their rights, and participate in the distribution, in such and like cases, the fact that a x>erson appears and files his claim raises the persumption that he intends to make himself a party to the record. --^ Where it appears that pending an action at law defendants pleaded the transfer of the note sued on to A. and B., to which it was replied that the suit was prosecuted for theii- use, and judgment was entered for plaintiff, this did not make A. and B. parties. 2* So when the Code provides that an action shall not abate by reason of the transfer of an interest therein, and that the orig- inal party may prosecute it to judgment in his own name, the vendee is no party to the suit.^^ When the principal of a bond binds himself to perform the order of the court, his sureties by executing the bond become quasi parties to the record, and may be proceeded against by rule. 26 So where relator had been appointed administrator, assumed the trust, received and held a portion of the fund which had been taken out of court, had filed a bill to be allowed in his character of administrator to enforce the very decree under which the fund had been paid in, he had such a standing in court as to be deemed quasi a party. 2' 1 Robinson v. Commrs. 37 Tnd. 333 ; ^Tanion v. Lambert, 10 Bush, 295 ; Hunt v. Haven, 52 X. H. 170. 2 Robbins v. Chicago, 4 Wall. 672 ; Lipscomb v. Postell , .^S Miss. 439 ; and see ^ 7. 3 Douglass V. Gardner, 63 Me. 464 ; Merchants' Bank v. Cook, 4 Pick. 410. 4 Xeely v. Merritt, 9 Bush, 350. 5 Armstrong v. Durlaud, 11 Kan. 15. 6 Archibald ?•. Means. 5 Ired. Eq. 532 : Potter v. Everett. 7 Ired. Eq. 1.55: Borduvant v. Siblej*. 37 Ala. 571; and see Soule v. BiJliugs, 42 Cal. 2S7. 7 Johnson v. Morrison, 5 Men. B. lOS; Smith v. Gower, 3 Met. (Ky.) 175. 2 li RIGirrS ANT> REMEDIES. 16 8 Plummer r. C'rain, 5 Mon. 377. ({atewood v. Riickor, 1 Mon. 21, 10 Kellen v. Comptoii, M) (in. 118 ; Barnes v. Wise, 3 Mon. 17. 11 Kountz r. Brown. 10 Mon. B. 585; Rake r. Owners Potomac, G Bnsh,26. 12 Rake r. Owners Potomac, G Bush, 26. 13 Verplank v. Mercantile Ins. Co. 2 P;u2ro, -1-10: .Seeley v. Clark, 78 N. y. 221 : Boorman r. A. A P. liy. Co. 7.s N. V. (m. 14 Dixon V. Donaldson, G Marsh. J. J. 57G. 15 Rtnille v. Claxon, 12 Bush, HtVl ; and see Rosenthal r. Sutton, 31 Ohio .St. 40(i ; Schwein r. Simms, 2 Met. (Ky.i 210. 10 Kennedy r. Meredith, -1 Mon. 412 ; M. & fet. Louis P. Co. v. Grey, 9 Bush, 148. 17 Tavlor r. Tavlor, 3 Bush, 119; and see Lindner r. Brock, 40 Mich. 018. 18 U. S. r. Doughty, 7 Blatchf. 424. 19 Allen r. Lenoir, 53 Mi.ss. XiO. 20 Ciahen r. .Stephenson, 17 Kan. 617. 21 Atty.-Oen. v. Parker, 126 Mass. 221, 22 Cieniens r. Patterson. :iS .Via. 722. 23 Thomas v. Farmers' Bank, 46 Md, 43. 24 Peck V. Ingraham, 6 Cush. 246. 25 Elliot V. Teal, 5 Sawy. 188 ; French v. Edwards, 4 .Sawy. 128, 26 Dickinson r. Trout, 8 Bush. 443. 27 Dennis ?\ Judge of Kent Co. 42 Mich. 254. § 2. Real and nominal parties. — When an action is Li-ouglit by A., for the use of B., against X,, A, is the nominal and B. the real plaintiff. X., the defendant, may urge any defense he may liave against either.^ If, however, it is shown that B. had no interest in the cause of action before suit brought, A. will be considered the real plaintiff, and may control or dismiss the action without the sanction of B.^ At law the beneficial jjlaint- iff need not be named in the record;-' but if the fact that the action is prosecuted for the use of a third person is expressed, and he be named, it is merely surplusage.* A bill in chancery must not be filed in the name of one to the use of another, but in the name of the real person in interest, who will be the real plaintiff.^ When the person beneficially interested is permitted to u.se the name of another in the prosecution of an action, he is the party wlio is liable for costs ;<> the nominal plaintifi" will not be permitted to control the action.^ It seems, however, 17 KIGirrS A>'D EEilEDIES. ^ 2 that lie may withdraw it, even against the wishes of the real person in interest;** he cannot settle or compromise it," nor can he enter a retraxit therein.^" A next friend of an infant can only pursue and claim his rights, he cannot cede or yield them to others ; and the same is true of an attorney.^! In actions against husband and wife jointly for her separate liabil- ity, he is merely a nominal party, joined for the purpose of assisting her in the protection of her interest ; ^- and in the absence of any undertaking on his part, judgment cannot be rendered against him.^^ When a bill of discovery is filed by one member of a firm for the use of another, upon an open account, it is not demurrable simply because filed by a nominal party.i* Such bill may also be filed against him.^^ In an action upon a guardian's bond the relator stands as the real plaintiff. ^'^ In an action on a s^Decial tax bill for street improve- ments brought by a contractor to the use of a municipal cor- poration, the city is not the real party to the record, and no judgment can be rendered against it in such action.^^ Pay- ment of the amount of the judgment to the nominal plaintiff, with notice that he is not the real party in interest, will not satisfy it.^** 1 Dayton v. Conil. Bank, 6 Rob. i La.) 19 ; G. G. Ry. Co. r. Conger, 9 Smecl&s EE3IED1ES. § 3 Griffin — to wit, Charity Piukham — may be amended by striking out the words, to wit., "Charity Pinkham."^^ The fact that the surname only of a defendant is set forth in the complaint cannot be reached by demurrer for want of facts, nor can it be made available for any purpose after a finding and judgment below, under an assignment for the first time in this court of the insufficiency of the facts stated in the com- plaint to constitute a cause of action. ^^ "When a contract is made for the benefit of a principal who is undisclosed, suit may be brought by either principal or agent. i^ A city may institute suit in its corporate name, and plaintiff suing as the City of L. may recover upon a bond given to the inhabitants of L., that fact being averred,'^ the same rule applies to other corporations.^** "Where pending suit by a corporation, an act of the legislature was passed changing its name, if the corporators should con- sent ; held too late after judgment, for defendant to set up that there was no such corporation, particularly as it did not appear that consent to take the new name was given. ^^ When one stockholder sues for liimself and all others who may become parties, etc., the interlineation of the names of those who do come in and are made parties is not necessary. The record should show that the suit was brought for all stockholdsrs who should come in, also who did come in and were made parties ; this is all that is required. 2" 1 Props. Mex. :Mill v. Y. J. S. M. Co. 4 Xev, 42 ; and see Fuller v. Unknown Owners, 9 Iowa, 432. 2 Shadburne r. Amonette, 7 La. An. 90; Brooks v. Hartman, 1 Heisk. 'SS ; and see Arbuckle v. Bowman, 6 Iowa, 70. 3 Linton r. First Xat. Bank of Kittanning, 13 The Reporter, 488. 4 Lang v. Whidden, 2 2s . H. 437 ; Fox r. Xinor, 32 Cal. 119. 5 Loveland v. Sears, 1 Colo. 435. 6 Doane v. Glenn, 1 Colo. 502 ; Dilts r. Kinney, 15 X. J. L. 130. 7 Wiebold v. Hermann, 2 Mont. 610 ; Elberson r. Ptichards, 42 2s . J. L. 70. 8 Elberson v. Richards, 42 2s . J. L. 70 ; B. <£; M. Ry. Co. v. Dick, 7 2s eb. 244. 9 Kennedy r. Merriam, 70 lU. 230 ; but see Kerr r. Swallow, 33 lU. 380. 10 Jernigan v. Carter, 60 Ga. 132. 11 Tibbets v. Kiah, 2 X. H. 557 ; Colton v. Stamwood, 67 3Ie. 26. 12 Dou£:herty i-. Vance. 30 La. An. 1246. g 4 EIGHTS Xyj) EEMEDIES. 20 13 Davis V. Taylor, 41 111. 408 ; Lehman v. Warner, Gl Ala. 402. 14 (iriffln v. Pinkhani, fiO Me. 123. 15 Hahn v. Behrman, 73 Ind. 123. 16 Laphorn v. Green, 9 Vt. 408. 17 Lowell V. Morse, 42 Mass. 474 ; Ilatheway v. Sackett, 32 Mich. 97 ; but see i 67. IS Medway C. Fact'y v. Adams, 10 Mass. 360 ; Millege v. B. I. Co. 5 Ciish. 176 ; N. Y. Distilling Co. v. Brant, 69 111. 661 ; but see Wooster v. Lyons, 1 Black, CO. 19 W. L. Co. V. Bank of Brunswick, 53 Ga. 30. 20 Hazard v. Durant, 9 II. I. 602. g 4. Of the descriptio personae, capacity, etc. — Parties must be designated by name and not by a mere description of the ijerson.i When the plaintiff was described as " The People of the U. S. of the Territory of Idaho," an objection that plaintiff has no legal capacity to sue, founded upon the fact that the abbreviation U. S. was used in the title of the cause, was held not well taken.'-' It is sufficient that the capacity in which a person sues appears in the body of the complaint.^ He cannot, however, cause it to appear therein that he sues in another's right, and insist at tlie hearing that he has sued for himself as well.^ Thus a sole corporation having two capac- ities — i. e., natural and corporate — must always show in what right it sues. 5 Apt and fitting words should be used for this purpose; to describe one as A., executor of B., is not suffi- cient.^ So the words "in their own right" are not equivalent to the words "in their own individual rights," when it appears from the context that the parties sue in the right of another.' The addition to plaintiff's name in the commencement of the declaration of such words as "survivor of A. B.," "executor of C. D.," etc., are merely descriptions of the person, and usu- ally surplusage.8 The words "A., guardian of B.," in a bond are merely descriptive of the person ; suit may be maintained thereon by A.^ When a person has several capacities, and is found in possession of property, the law will attach the posses- sion to the capacity in which of right it ought to be held.*" An action may be maintained against a person in his individual capacity and as executor ; ^^ and if he is interested in several capacities, it is not sufficient to make him a party in one capac- 21 EIGHTS AND EE3EEDIES. § 5 ity alone. 12 jf there is error in joining him in each capacity it must he presented in the court helow ; it cannot he raised for the first time in the supreme court. ^^ In proceedings against ahsent heirs of a person who died out of the State, and whose names are unknown, it is sufficient to describe them in the published notice to appear, etc., as the unknown heirsjof A. B., etc." 1 Sossman v. Price, o7 Ala. 204 ; bat see Tygart v. Poeplcs. 'J r.ich* Eq. 47. 2 People r. Sloper, 1 Idaho, 162 ; and see Eslava v. Ames Plow Co. 47 Ala. 384. 3 Spear ?•. Ward. 20 Cal. G7G ; Tate r. Shackelford, 24 Ala. 510; Cofifman v. Parker, 11 Iowa. 14; FUson r. Dunbar, 26 Pa. St. 476; Keenan v. Du Blgnon, 4fi Ga. 260; Cotton r. Davis, 3 Jones, 356; and see Ala. G. L. Ins. Co. v. Cobb, 57 Ala. 550. 4 Lawson v. Kolbenson, 01 111. 417. 5 Weston v. Hunt, 2 Mass. 501 ; Lawson r. Kolbenso::, 61 111. 417. 6 Daniel v. HollLngshead, 16 Ga. 192 ; Laverty v. Woodward, 16 Iowa, 1. 7 Lawson v. Kolbenson, 61 ILL 417 ; compare Anderson v. Brock, 3 Me. 243. 8 Loveland v. Sears, 1 Colo. 435 ; Bogert v. Vermilya, 10 X. Y. 448 ; Lavertv v. Woodward, 16 Iowa, 1 ; and see Chapman v. Speuce, 21 Ala. 592 ; Burke v. Steele, 40 Ga. 219 ; Trustee etc. v. Pace, 15 Ga. 490. 9 Bradlevr. Graves, 46 Ala. 280; Jeffries r. McLean, 12 Mq. 541; Lary r. Young, 13 Ark. 400. 10 Carson v. Phelps, 40 Md. 98 ; Fleekinger v. Hull, 5 Giliu. 74 ; and see Huntington v. Day, 55 Ind. 7. 11 Eoark v. Turner. 29 Ga. 456. 12 Mavs v. Tompkins, 6 Munf. 527 ; Carrington r. Dedier, S Gratt. 260 ; Arrnstrong v. Hall, 17 How. Pr. 7S. 13 Kittredge v. Raer, 92 U. S. US; compare Degive r. Meador, 51 Ga. 160; Silvernagle ?•. Flecker, 21 La. An. i;;0 ; and see Beyris v. Spor, 22 La. An. 16 ; Wells v. Wells, 23 La. An. 224. 14 Tygart v. Peoples, 9 Rich. Eq. 47. § 5. Who may become parties. — Any person interested in premises sought to be partitioned may, upon proper applica- tion, bo made a party at any stage of the proceedings. ^ His interest, however, must be such as to be afiected by the suit.^ One creditor of a common debtor has no right to bo made a party to an ordinary action at law brought by another creditor to recover a debt ; -^ but if the design of the bill is to declare the property subject to the lien of judgment credit- ^ 5 EIGHTS AKD BE^LEDIES. 22 ors, all having liens are entitled to be heard.* So where cred- itors holding liens upon the same premises seek to enforce them by separate suits, and the junior lienholder first obtains a sale of the premises, it is good practice to allow the older lienholder to become a party to the suit.^ How far persons interested should be made parties to a creditor's suit depends largely upon the discretion of the court, and the facts of the particular case.'' In a mandamus proceeding by a county against its officers to compel them to hold their offices at the county seat, one of two places voted for as such, cannot appear as a party. ' In foreclosui-e proceedings, third persons claiming independent title to the premises cannot be made parties for the purpose of asserting such right.** One who acquires an interest in mortgaged premises pending foreclosure may be made a defendant upon his own motion ^ if he has the consent of plaintiff; 1" but one who purchased and conveyed premises with covenants of warranty in ignorance of a mortgage lien thereon cannot open the decree of foreclosure and be let in to redeem if he was not a party to the original suit.^^ In an action to recover land there is no error in permitting the pur- chaser {pendente lite) of defendant's title to defend the action, if he relies upon defendant's title and does not deny his pos- session. i- So a judgment debtor may come in and become bound by a decree where it is sought to reach property held in trust for him by others. ^^ AVhen the piirchaser of land at sher- iffs sale seeks by suit to determine conflicting claims to it, one who has no interest in the land, nor in the question of the val- idity of the sale, cannot become a party to the suit for the pur- pose of attacking the sale.^* If suit is brought against the purchaser by a third person, and it is alleged that there was irregularity in tlie sale, whereby the land did not bring its value, the execution debtor may become a party by interven- tion, or may proceed by motion in the original suit.^^ Generally an application to be made a party to a suit will be denied, if in order to give the applicant any benefit the construction of the bill will have to be materially changed, and new controversies brought into the suit.^^ 23 EIGHTS A>'D REMEDIES. § 6 1 Parkinson v. Cahlinger, & 3Io. 293. 2 Gregory r. High, 20 Ind. 527. 3 Askew r. Carswell, 63 Ga. 1G2. 4 Voorhees r. Reford, 14 X. J. Eq. 158. 5 Porter v. Barclay, 18 Ohio St. .>17, 6 Smith V. Williams, 116 INIass. 510. 7 Calaveras Co. v. Brockway, 30 Cal. 34Q. 8 Allen r. Lathrop, 4» Ga. 133 ; see also ? 40. 9 Hull V. Lyon, 27 3Io. 570 ; compare Dsgive r. Xeador, 51 Ga, 160. 10 Steele v. Taylor, 1 ilinn. 2S4, 11 Barton v. Kingsbury, 43 Vt. 610. 12 McFaddeu r. Wallace, .33 Cal. 51. 13 Cowing V. Greene, 45 Barb. 590. 14 Flanagin v. Pearson, 50 Texas, 383 ; and see ? 47. 15 Cravens v. Wilson, 4S Texas, 324. 16 r. S. V. Gillesipie, 12 The Reporter, 3S3 ; and compare Holliday v. Strickland, 60 Ga. 150. § 6. Of the position of a party upon the record. — As a rule an action will not be dismissed merely on account of an in- formality in the position in which parties are presented before the court. ^ In equity if all interested parties are before the court it is all that is absolutely required. ^ "VThere the interests of infants are sought to be affected, and more particularly their interests in real property, they should be made parties defendant.^ As a rule when persons who are interested in like manner, as plaintiff in the subject-matter 'of the suit, refuse to join in prosecuting it, they may be made defendants, the rea- son being stated in the pleading.* This rule appUes to joint administrators,^ to voluntaiy associations.'' If answer is filed by the parties -without objection being raised, the court will infer their refusal to be made plaintiffs.' If objection is made it is not error to allow the parties to change their attitudes so as to be placed on the side of their interest.*^ The objection is proi)erly raised by demurrer.^ In an action at law the same person cannot be both plaintiff and defendant.i*^ This rule is confined in its operation to natural persons, and extends to them whether they sue in their individual right, or in a fidu- cary capacity. ^^ Xo doubt the rule applies where there is a contract to be enforced,^"-^ or a wrong redressed; but it may g 7 EIGHTS ANT) KEMEDIES. 24 well bo clnubtad whether it applies to a statutory action of partition.'^ In partition, so far as the ultimate purpose, to wit, the partition, is concerned, all parties are actors, or plain- tifis, ancl in this respect it is a matter of no moment whether they appear on the record as plaintiffs or defendants.^* In equity the rule has no application. ^^ Thus where a note was executed by thirteen persons to three of their number, and secured by mortgage, suit of foreclosure was properly brought in the name of the three payees against all the makers. i'' 1 AVest r. Bank of Rutland, 19 Vt. 403; compare Mason v. Smalley, 8 Vt. US. 2 Sapp r. Phelps, 92 111. 595 ; Allen v. Bangus, 1 Swan, 404 ; and see Holvoke V. Loud, 69 Me. 61 ; Dean v. Cliamberlln,6 Duer,694 ; Rogers V. Dively, 51 Mo. 1C5. 3 Davidson v. Bowden, 5 Sneed, 133 ; Frazler r. TuUoss, 1 Swan, 77. 4 Smith r. Sackett, 5 Gilm. 545 ; Cummings v. Latham, 4 Mou. 104 ; Cook V. Hadly, Cooke, 405. 5 Rizcr V. Gillpatrick, IG Kan. 564. G Whitney v. Mayo, 15 111. 254. 7 Osgood V. Franklin, 2 Johns. Ch. 18. 8 Turnham r. Turuham, 3 Mon. B. 532. 9 Freeman v. Schofiekl, 16 X. J. Kq. 28; Carpenter v. O'Dough- erty, 2 X. Y. Sup. Ct. 431 ; S. C. 53 N. Y. 681. 10 Pearson r. Xesbit. 1 Dev. 316; Denny v. Metcalf, 28 Me. 89; Blaisdell r. Ladd, 14 N. H. 130; Pierce v. Boston Five Cent Saving Bank, 125 Mass. 505. 11 Connoll V. Woodard, 5 How. 670. 12 See Batchelder v. Wendell, 3G N. II. 215 ; BlaisdeU v. Pray, 68 Mo. 270. 13 Elaisdell v. Pray, 63 Me. 270, 14 Sonter v. De Berual, 38 Cal. 642. 15 Batchelder v. Wendell, 36 X. H. 215. IG McDowell v. Jacobs, 10 Cal, 387. § 7. Wlio are bound by legal proceedings. — No one but parties and privies to the suit. — Proceedings in rem, when le- gally instituted, bind every one.^ In the sense here intended, the term "parties " includes all persons having a right to control the proceedings, to make defense, to adduce evidence, and cross-examine witnesses, and to appeal when appeal lies,^ By "px-ivies" is meant all who stand in mutual or successive rela- tionship to the same rights of property.'* But the rule does not extend so far as to hold purchasers bound by subsequent litiga- 2j rights a>t) kexedies. ^ 7 tion in respect to the property between their vendors and others.* In consolidated suits parties must notice the issues and are bound by the decision.^ In probate proceedings; no living person is bound by the adjudication of a court that he is dead, the whole proceedings are void.** No person can be affected by a judicial proceeding to which he is not a party ; before his rights can be concluded he must have a day in court. ' So also a party before the court cannot have a decree rendered against him which de- termines rights that can only be settled by reaching an absent party.^ While there are cases in which persons interested may by petition be made parties by leave of the court, yet there is no case in which they have been held concluded by the decree, without being parties. '^ If, however, an action is prosecuted in whole or in part for the benefit of a person, if he were to share in the fruits of the judgment he is to be regarded as a party in interest and bound by the judgment,^" whether his name were used as a party or not.^^ Upon motion to correct a judgment against a party not served with process, those who have had their day in court may not appear and be heard ; they are not parties to the motion. ^^ infants aggrieved by a decree may proceed at once to obtain redress ; they need not wait until their majority, nor are they bound to proceed by rehearing or bill of review, but may file an original bill alleging fraud or collusion, or error appearing on the face of the decree. ^^ When a woman who is a defendant in an action of partition intermar- ries during the pendency of the suit, it does not follow that the irregularity in failing to suggest the marriage or to make the husband a party is fatal, or that he can assert such acquired rights in a subsequent action.^* The absence of proper parties in an equitable action is not a jurisdictional defect which ren- ders the judgment void as between the parties to it.^^ Its jurisdiction depends not upon the question as to whether all the proper parties are before the court, but upon the nature of the rights of the parties before it.^^ A suit to foreclose a mort- gage is both a proceeding in personam and iyi rem, and to make a valid decree the court must have jurisdiction over the person and the thing.^' An elder lienholder is not affected bv the 2 7 RIGHTS AND REMEDIES. 26 suit of a younger, unless made a party thereto. ^^ So in suit by the elder lienholder, a younger encumbrancer should be made a party j^'-* unless made parties they will not be bound by the judgment ;2'* the mortgagor, unless he has disposed of the equity of redemption, should be made a party. ^^ If, however, the purchaser holds by a mere unrecorded instrument he will be bound by a decree against his grantor.22 Intermeddlcrs with property who buy pending litigation need not be made parties, but will be bound by the decree rendered.^^ This rule has been held to apply in actions of ejectment. 2* When plaintiff moves on a particular date that a person be made a party to the suit, and on a subsequent date stipulates that he may file an answer, as of the former date, he cannot be heard to say that such person was not a party, and present in court from the former date.^^ 1 Besancon v. Brownson, 33 Mich. 392 ; M. & St. L. P. Co. v. Grey, 9 Bush, 14S ; W. M. & M. Co. v. Va. Canal Co. 10 W. Va. 293 ; compare n. 2 Lipscomb v. Postell, 38 Miss. 489. 3 Whitney v. Brunette, 15 Wis. 70 ; Lipscomb v. Postell, 38 Miss. 476. 4 Whitney v. Burnette, 15 Wis. 70. 5 Tharp r. Cotton, 7 Mon. B. 643. 6 D'Arnsmont ?'. Jones, 10 The Reporter, 559 ; Lavin v. Emigrant Sav. Inst. 9 The Reporter, 541 ; Roderisras 1: East River 8av. Inst. 63 N. Y. 460 ; Stephenson ?•. Sup'r Court, Supreme Court of Cal. Xov. 15, 1882. 7 Hale v. Holland, 92 111. 4S6 ; Ex parte Holman, 28 Iowa, 88 ; A. T. r. J. Eq. 535. 13 McCov V. Quick, .30 AVis. 52S ; Rodfleld v. Hart, 12 Iowa, 357; Strong v. AUen, 44 111. 43:3 ; ilillen r. Finn, 1 Neb. 301. 20 McCall V. Yard, X. J. Eq. Co ; H"im v .Vo^el, 6 J Mo. 5.3.3 ; Davis V. Rankin, 50 Tex. 270 ; Carpentier v. Williamson, 25 C;il. 154. 21 Brundred v. Walker, 12 X. J. Eq. 140 ; Chase v. Abbott, 20 Iowa, 160 ; JoLinson v. iloiiell, 13 Iowa, 300, 22 Aldrich v. Stevens, 49 C::l. 673. 23 2Ialone r. IMarriott, 64 Ala. 4:0. 24 Wattsou I'. Dowling, 23 Cal. 120. 25 Lawrence v. Ballou, 50 Cal. 261. 5 8. Of tii3 rigiits cf parties t3 a suit. — Parties must vindicate their owu riglits ; one cannot complain for others of errors which, if they exist, in no manner affjct his own inter- est.^ A person not a party to a suit may make no motion therein, except to be made a party. ^ In determining the rights of parties under a State law, the federal courts will never in a doubtful case declare such law to be in conflict with the State Constitution, unless sustained by a direct adjudication of the highest com-t of the State.-* In an action not founded upon contract, jurisdiction of the federal courts depends upon the cirizanship of the party of record, whether he be assignor or assignee of the original claim,* A joint stock company which has all the rights of a corporation, by virtue of the laws of the State creating it, may sue in the federal courts in the same manner as in the State court. ^ It seems also that a foreign corporation, doing business within a State, may, even though prohibited by its laws, sue in the federal courts;*' and gener- ally, whenever either by common law or statute a right of action has become fixed, and a liability incurred, that liability may be enforced and the right pursued in any court which has jurisdiction.'^ The United States by virtue of then- sovereign character may claim exemption from legal proceedings ; but when they enter the courts as a litigant they are (in absence of statute) bound by the same rules as other parties.^ The law recognizes the assignment of choses in action, and for the pro- tection of the rights of the assignee permits him to bring suit in the name of the assignor,^ who can interfere only for the g 8 KIGHTS AND KEMEEIES. 23 pui'pose of requiring indemnity against cost.^" When the instrument upon which suit is brought was taken in the name of an agent, anel the defendant raises the objection that iilaint- iff has no interest, he may amend by showing to xchose use he sues.^i In case of the death of plaintiff, the failure of his representatives to prosecute the suit does not of itself dissolro an injunction ; an order of court is necessary for that pur- pose.^- When a complaint has been filed that states a cause of action, plaintiff is entitled to give evidence in support thereof; as a rule, an action should not be dismissed upon the opening statement of counsel. ^^ A dcfenelant has a standing in court as long as he is interested in contesting the amount to be decreed against him, in favor of collateral parties, even though he has compromised the suit with the principal creditor.^* "When a elefenelant parts with his interest in a suit, it is not as a rule necessary to bring in nev,- parties, nor can he by such proceeding divest himself of liability.^^ So if a party has a right to avail himself of another's defense, the latter may not, after submission of the cause for trial, withdraw it against the objection of the former. ^^ So when defendant has been wrong- fully dispossesseel of land by legal process, he is entitled to restitution and an inquisition of damages in that action, and plaintifi" cannot i^revent his right by nonsuit. i" When a non- resident plaintiff has brought suit without giving security for costs, defendant may have it dismissed on motion.^'* Generally a mere personal privilege may be waived, as the Statute of Limitations, infancy, etc. ; ^^ but if the statvite has run in favor of a person, he cannot be depriveel of his rights by being made a party to an existing suit by supplemental pkaelings.^'^ When a statute creates a right of action unknown to the common law, and limits the time within which suit may be brought thereon, such limitation is operative in any juriseliction where plaintiff may sue. 21 If, however, when tlia right of action accrues there is no one to assert it, the statute will not com- mence to run in favor of the other party. 2- In proceedings to foreclose a mortgage, if the petition be defective, plaintiff may abandon the security and take judgment upon the note. 2^ If 29 RIGHTS A>T) EE3IEDIES. § 8 the only question involved is -^vhether the lien of plaintiff's mortgage is prior or subsequent to that of defendant, it is error for the court to proceed further and decide as to the validity of the mortgage. 2* After the appointment of a re- ceiver in a creditor's suit, plaintiff is not entitled to have exe- cution issued for his use, etc. ; the I'eceiver is the proper party to enforce the judgment.^^ A conveyance of property by a debtor to d3fraud creditors is void as to existing creditors ; but one who gives credit after the conveyance and with full knowl- edg2 is not entitled to have it set aside upon that ground.^'' When by statute a separate judgment is authorized upon a joint and several instrument, plaintiff may, after exceptions taken by one defendant, have judgment and execution against the other. -^ In proceeding by rule or motion for restitution of money or property obtained under a judgment, no other demand outside of the original suit and not disposed of by the decree should be brought into the litigation; such demand should be set up by independent suit.^^ 1 Albright v. Flowers, 52 Miss. 2.50; and see Brewer r-. Dodge, 28 Mi?h. .361 ; Livingston r. D'Orgendv, 1 Mart. (La..) 87 ; Schnieder v. Tiiill, 10 The Reporter. 70. 2 Linn v. Wheeler, 21 X. J. Eq. 341 ; and see Esterbrook v. Ahern, 31 X. J. Eq. .3 ; C. K. E. & B, Co. v. Craig, oJ Ga. 133 ; Tranmiel v. Sim- mons, 8 Ala. 272. 3 .Smith V. Fon Du Lac, 8 Fed. Rep. 234. 4 Van Bokelen r. Cook, .5 .Sawy. 5;)1. .5 Fargo r. L. X. A. &. Chic. By. Co. 11 The Reporter, 736. 6 Ins. Co. V. Harper, 3 Hughes, 260 ; Ins. Co. v. Morse, 20 Wall. 445 ; Ins. Co. v. Doyle, G Biss. 463. 7 Dennick v. C?nt. Rv. Co. 11 The Reporter, .522 ; Leonard v. Col. S. Xav. Co. 84 X. Y. .52 ; but see Buckles v. Ellers, 72 Ind. 220. 8 IT. S. V. Flint, 4 Sawy. 53 ; compare Dabney v. State Bank of South Carolina, 3 S. C. 163. 9 Hargraves ;•. Lewis, 6 Ga. 211. 10 Southwick V. Hopkins, 47 Me. 366, 11 Buffington V. Blackwell, .52 Ga. 1.30 ; and see Copp r. Erockwav, 3Paig3,.>44. 12 Collier v. Bank of Xewbern, 1 Dev. & B. Eq. 3-30. 13 Linds v. Bensol, 22 Hun, 601. 14 Carter v. Davis, 8 Fla. 199 ; and see Goddard v. Ordway, 101 U. S. 745. 15 Mickla v. Maxfleld, 42 Mich. 311. g y EIGHTS AND RE3IEDIES. M 16 Hearn v. Lander, 11 Bush, 673 ; Ins. Co. r, Maury, 12 The He- porter, 510 ; and see State v. Ky. Co. 8 S. C. 167. 17 Lane v. Morton, 81 N. C. 40. 18 Ex parte Cole, 23 Ala. 51. 19 Wright V. Steele, 2 X. H. 53 ; Grattan v. ^Yiggw, 23 Cal. 25. 20 Jeflfers v. Cook, 58 Cal. 147 ; Shaw v. Cock "8 X. Y. 1L6. 21 Boyd V. Clark, 13 The Reporter, 40. 22 INIetcalf v. Grover, 55 Miss. 147. 23 Weathorboo ?-. Townes, 42 Tex. 83. 24 Heath v. Silverthorn L. M. & L. Co. 33 Wis. 159. 25 Bignoy v. Tallmedge, 19 Abb. Pr. 10. 20 .Shcppard v. Thomas, 24 Kan. 782. 27 nawkes v. Phillips, 7 Gray, 286. 23 Morgan v. Hart, 9 Mon. B. 80. g 9. Ganerally of the remedies of the parties. — As a gen- eral rule parties must recover, if at all, upon their rights as they existed at the commencement of the action, and according to the character in which they sue.^ This right must continue until trial. 2 Under the Codes it was held that m case of trans- fer of interest other than by death, the action might be main- tained either in the name of the original party, or the name of the transferer might be substituted plaintifl'.^ So undjr Code practice it has been held that every action may be termed an action on the case, and it would seem that any ground of relief that may be regarded as part of the case may be included in the action.* When it is desired to unite two causes of action in the same complaint they should be separately stated, and each cause of action should be complete in itself.^ If a person has two distinct remedies for a wrong, and attempts to pursue both at the same time, upon motion, he will be required to elect which he will prosecute.'^ When a person is joined as plaintiff in a suit without his knowledge or approval, and he takes no part in the action, it should, upon motion,' be dismissed as to him ; " but the objection should be taken before trial.^ When a statute imposes a duty upon a person, but provides no remedy for its breach, the law will provide one ; but if the statute which imposes a new duty also provides a particular remedy, that is usually the only redress an injured party has.^" At common law i)ersonal actions, whether ex contractu or ex delicto, are 31 EI3KT3 AXD EEMEDIES. § transitory, and a:, a rule may be maintained anywhere ; ^^ but ^- J court will lend its aid to enforce a claim arising from the transgression of a positive law.12 In applying a foreign law courts will administer it, as far as the rights of tlie parties are concerned, as such foreign courts would. ^^ Equity is part and parcel of the law of the State, and courts will therefore adopt chancery rules to prevent a failure of justice. When the com- mon law forms are inadequate, the practice in chancery in rela- tion to the parties who ought to be before the court will be adhered to as nearly as i^ossible.^^ A court of equity will give redress to a person, when otherwise he would be driven into the courts of another Ctcite to obtain it.^^ When plaintiff aslis relief on the ground of fraud, ^^ and fails to prove it, he is not entitled to relief in that suit upon any other ground.^^ Nor will he in any suit be aSbrded relief for an injury sustained by the fraud of a person who is no jDarty to the contract induced by that frand.13 After a trial at law a court of equity will not lend its aid to a party, unless he can impeach the verdict on grounds which he could not avail himself of there, or was pre- vented from so doing by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his own part.i^ To entitle a person to relief on the ground of mistake it must appear that it was mutual, and the mistake of both par- ties to the contract ; '■^^ it must be clearly pointed out, and not arise from the gross negligence of plaintiff. 21 An equitable defense cannot be set up in an action at law if it would require the introduction into the suit of a new party defendant. "''- In an action which has been removed from a State to a federal court, and in which bo-li legal and equitable relief are de- manded, the plaintiff will be required to replead before pro- ceeding with the suit.2>5 A defendant may plead as many defenses as he may have, and if separately stated, not incon- sistent in themselves, and sufficient in form and substance ; the fact that they are inconsistent with each other even in a verified pleading is immaterial. 2- In an action at law one of several defendants is not entitled to change the venae of the whole action without the concurrence of all the co-defendants. ^^ §'9 EIGHTS AND EEMEDIES. 32 In equity it was held the motion -svoiild not be denied simply because a defendant ■who had not appeared and was in default had not joined in the application.^^ In bills relatiug to real property, persons may be made defendants under the general averment that they claim or pretend to have some title or in- terest in the premises, ■nhich is fraudiilcnt and void,"'^^ In suits to determine conflicting claims to land, plaintiff must recover, if at all, upon the case presented in his bill ; he can- not obtain affirmative relief upon defendant's answer alone. ^^ To maintain the statutory action for partition of lands, plaint- iff need have neither possession nor right of possession.-'' If his title is disputed and in doiibt, he will be required to estab- lish his rights at law before he will be permitted to proceed in equity for the partition of lands. ^'^ Plaintiff may mai::tain the action of ejectment, even though his title deeds be lost; he need not resort to equity in the first instance to establish his right.^" He must show title before he can disturb defendant's posses- sion,^i and must have had that title at the commencement of the action.-^- He must recover on the strength of his own title as being good against the world or good against the defendant by estoppel.^-* When plaintiff and defendant claim under a conveyance from a common grantor, it is not necessary for plaintiff to deraign title from a paramount source.^* The quan- tity of land need not correspond with that for which plaintiff sues, ^^ but the defendant must, at the commencement of the action, have been in possession of some part of the premises to which j)]aintiff establishes title. ^^ The defense must be founded upon rights existing at the commencement of the action ; de- fendant cannot avail himself of after acquired title.^' When plaintiff and defendant claim title through the same person, neither is at liberty to dispute it or assert a superior title in another, imless he has acquired it or in some manner connects himself with the true owner.^^ q^q Qf ^i^q niost essential pre- requisites for a final injunction is that all persons interested in the subject-matter of the suit be made parties."^ In foreclosing a land contract, it is not necessary in presenting a proper case for the issuance of injunction to prevent the removal of fixtures 33 EIGHTS A>"T) EEirEDIES. § 9 from tlie premises, to show that the defendant is insolvent or unahle to respond in damages for such waste or to pay surplus, that question is immaterial. ^'^ When it is shown in a suit by one partner against another that defendant has deliberately resolved to break up the business of the firm, and that it can- not be continued to advantage, the injunction granted will not be dissolved.'*^ When an account involving adverse interests is presented to a court of equity by a person who represents both parties, and manages both sides of the case, the court will not pass judicially upon it.*^ When from any cause a contract is incapable of being enforced against one party to it, he is equally incapable of enforcing it against the other party. ^^ When defendant undertakes to pay off adjudgment recovered against plaintiff by a third person, and to save him harmless therefrom, plaintiff' may maintain suit upon the undertaking, without having first j)aid the judgment.** A creditor who has recovered judgment against a decedent and a third person upon a cause of action that dies with the person, must exhaust his remedies against the survivor before proceeding against the estate.*^ In an action of trover against two defendants for a joint conversion, plaintiff may, after default against one, com- promise the claim with the other, and afterward have damages assessed against the former, and recover the amount less the sum paid by the co-defendant. •*** In equity a decree may be made between co-defendants, founded upon the issues raised by the pleadings and proofs made in the case, and connected with the subject-matter of the litigation.*' Where new parties are made, at the suggestion of defendants in theu" answer, that such persons claim "to have some interest in the subject- matter of the suit," and they are summoned to answer the petition of plaintiff upon their default being entered, the ultimate rights of all the defendants will not be determined, no relief being asked, or issue tendered by the original defendanj^ as against such new parties.**^ So also after there has ceased to be a plaintiff in a suit the court cannot proceed to determine the rights of the defendants as between themselves.*'' A court of equity vnll not retain jurisdiction of a suit as against defend- § 9 KIGHTS AND REMEDIES. 34 ants from whom plaintiff merely seeks auxiliary relief in aid of a demand against another defendant, when from want of jurisdiction over the latter it is unable t ) adjudicate the claim. ^" As a rule, when a decree has been enrolled a court will not entertain any application to vaj-y it, except upon consent of the parties thereto, or in respect to matters Avhich are granted as of course. ^^ 1 Tappan ?'.Tappan,30 N. II. 09; Hull v. Bell, G Met. 434; see Moss V. Shear, 30 Cal. 474 ; Backson v. McCall, 3 Cowen, 79 ; Norfleet r. Bussell, C4 Mo. 178. 2 Vila V. Weston, 33 Conn. 49 ; see Beanchard v. Ely, 12 Wend. 344. 3 McPilie V. McPherson, 41 Mo. 524. 4 Jones v. Cortes. 17 Cal. 498 ; Manning v. Ileenan, 73 N. Y. 51; Gray V. Dougherty, 25 Cal. 277. 5 Sharp v. Miller, 54 Cal. S31 ; Haskell v. Haskell, 54 Cal. 262. 6 C. R. Co. V. N. J. W. R. Co. 32 N. J. Eq. G7 ; and see Hughes v. Vt. Copper Co. 7 Hun, 678 ; generally see Welch v. Bagg, 12 Mich. 43 ; rignet V. Allison, 12 Mich. 329. 7 Hall V. Southwick, 27 Minn. 234. 8 Gravenstein's Appeal, 49 Pa. St. 319. 9 Bawn v. Smith, 1 Brov. 426. 10 "Brattleboro v. Wait, 44 Vt. 460. 11 Leonard i\ C. S. Nav. Co. 84 N. Y. 52 ; but see Buckles v. Ellers, 72 Ind. 224. 12 Whelden v. Chappel, 8 R. I. 233 ; Collins v. Lane, 80 N. Y. 627. 13 S. R. & D. R. Co. V. Lacy, 49 Ga. 110. 14 Mathew v. Stevenson, 6 Pa. St. 498. 15 Henry v. Elliott, 6 Jones Eq. 176. 16 Winsor v. Pettis, 11 R. L 50G. 17 Early v. Chaer, 12 R. I. 378. 18 Russell V. Clark, 7 Cranch, 89. 19 Duncan v. Lyon, 3 Johns. Ch. 356 ; Ritter v. D. P. Co. fS Mo. 459. 20 Evarts v. Stogcr, 5 Orcg. 151. 21 Lewis V. Lewis, 5 Orcg. 176. 22 Holliday v. Strickland, 60 Ga. 150. 23 La Mothe Manuf. Co. v. IT. T. W. Co. 15 Blatchf. 435. 24 Buhuc V. Corbett, 43 Cal. 269, 25 Rupp^>. Swineford, 40 Wis. 30; Sailly v. LIutton, 6 Wend. 508; compare Welling v. Sweet, 1 How. Pr. 156. 26 Walcott V. Walcott, 32 Wis. 68. 27 Finch v. Martin, 19 III. Ill ; and see Bell v. Gordon, 55 Miss. 49. 28 Burton v. Leron, 5 Sawy. 524. 29 Conyer v. Davis, 11 R. I. 527 ; Penn v. Cox, IG Ohio, 31 ; Cook v. Webb, 13 Minn. 170. 30 Donaldson v. WiUiams, 50 Mo. 408. 35 EIGHTS AXD KEaiEDIES. § 9 31 Foster v. Evans, 51 Mo. 40, 32 Xorfleet v. Russell, 64 3Io. 178 ; Hall v. Bell, 6 Xet. 433. 33 Taylor v. Gooch, 3 Jones, 468 ; see also Gay v. Ellis, 33 La. A n. 2.50. 34 Whitman v. Steiger, 46 Cal. 253 ; compare Caldwell v. Neller, 81 X. C. 116. 35 Huggins v. KeLchum, 4 Dev. & B. 421. 36 Brown v. Braekett, 45 Cal. 173. 37 Curtis v. Francis, 9 Cush. 443 ; compare Fitzpatrick v. Fitzpat- rick, 6 R. I. 74 ; contra. Tustin ?•. Faught, 23 Cal. 242 ; Moss v. Spear, 30 Cal. 474; Jackson v. McCall, 3 Cowen, 79; generally see Young v. Smith, 10 B. I. 375. 38 Caldwell v. Xelley, 81 X. C. 116 ; and see Wlaitmau v. Steiger, 46 Cal. 2.5S. 39 State v. Anderson, 5 Kan. 114. 40 Taylor v. Collins, 51 "WLs. 12G. 41 Sutro V. Wagner, 23 X. J. Eq. 388. 42 Ford r. Wetherbee, 1 Dev. & B. Eq. 22. 43 Sturgis r. Galindo, 13 The Reporter, 266. 44 Bacon v. Marshall, 37 Iowa, 582. 45 Hammond v. Hoffman, 2 Redf. 92 ; and see King v. Gallowaj', 5 Jones Eq. 123. 46 Heyer v. Carr, 6 R. I. 45. 47 Ingram v. Smith, 1 Head, 427 ; Kay v. Whittaker, 44 X. Y. 576 ; see also McPike v. McPherson, 41 Mo. 524. 48 Com. Bank v. Buckingham, 12 Ohio St. 404; and see Calvin v. Williams, 8 Bush, 346. 49 Ryan v. Tomlinson, 31 Cal. 16 ; see also Risner v. Adams, 9 Rich. Eq. 247. 50 Western Ry. Co. r. DeGraflf, 27 Minn. 1. 51 Pf eaflf V. Jones, 50 Md. 269. 2 10 jUEiSDicnoN, 36 CHAPTEK II. JTTKISDICTION.* ? 10. Definition, etc. ? 11. How acquired. § 12. By attachment — Publication. § 13. By publication. 2 14. Of appearance. ? 15. "Who may appear, and how he may appear. ? 16. Effect of appearance. ? 17. "Withdrawal of appearance. ^ 10. Definition — Generally. — Jurisdiction is the power to hear and determine, or to determine without hearing, or to hear without determining.^ It is a rule that admits of no exception that in cases when jurisdiction depends upon the party it is the party named in the record.^ The words "de- fendant and defendants," as used in the Code, so far as they affect the question of jurisdiction must be held to mean not nominal defendants merely, but parties who have a real and substantial interest adverse to the plaintiff, and against whom substantial relief is sought.^ "When a corporation is created under the laws of a State, the legal presumption is that its members are citizens of the State in which alone the corporate body was a legal existence. Any suit by or against such body in its coi-porate name must be presumed to be by or against citizens of the State creating it, and no averment or evidence is admissable for the purpose of withdrawing the suit from the jurisdiction of the United States courts.* So also where the ••'• It is proper to remark that it is not the object of the author to present the law fully upon the question of jurisdiction of courts over parties, etc. ; such a dissertation he conceives not to be properly within the scope of this work. His object is to present in a general manner some of the questions touching the manner of acquiring jurisdiction, etc. For a specific treatment of the subject the reader IS referred to the works of various authors upon the subject, and to the statutes of the particular State in which he may practice. 37 JTRISDICTION. § 10 j urisdiction of the federal courts depend upon the citizenship of the parties, the facts essential to support that jurisdiction nitist appi-ar somewhere in the record. It is sufficient if some- ■u'here they are in some form affirmatively shown, but need not necessarily he averred in the pleadings. The naked averment of residence is not, however, sufficient.^ So where in a suit against the stockholders of a corporation the only allegation is as to the citizenship of one of the complainants, and the cor- poration is not a party, nor citizenship of the defendants proved, the court will not entertain jurisdiction « where the Code provides that every resident of the State shall be sued before his own judge, i. e,, before the judge having jurisdiction over the place where he has his domicil or residence. Subject to certain exceptions a judgment rendered against a party in any other place not within the exceptions is a nullity." Where two or more persons are proper parties, plaintiff may institute suit against them in the county where either reside ; ^ but he cannot for the purpose of obtaining jurisdiction over a non- resident improperly join one who is a resident.^ Where two defendants who reside in different counties are sued in the county where one resides, it is not error to dismiss the action as to the latter, and take judgment against the former ; jui'isdiction was properly exercised, ^^ The record of a court of competent jurisdiction imports absolute verity, and the finding of such court that the person assuming to act as guardian was in fact such is sufficient ^jrnnrt/ncie to show that the cotart has juris- diction over the ward.^^ The judgment, however, will not be sustained if the record fails to show that the court obtained jurisdiction of the parties. The summons and service thereof, if served, are necessary parts of the record. In their absence the court will not assume that the court below had j urisdic- tion. ^2 So Tvhen it appears from an inspection of the record that a defendant against whom a personal decree or judgment is rendered; was at the time of the alleged service without the territorial limits of the court, and thus beyond the reach of its process, and that he never appeared in the action, the presum]> tion of jurisdiction over his person ceases, ^^ Parties — 4 § 11 junisDicTioN, 38 1 Ex parte Bennett, 44 Cal, 88. 2 Gov. of Ga. V. Madrazo. 1 Peters, 122. 3 Allen v. Miller. 11 Ohio St. 378. 4 Cov. Draw. Co. v. Shepherd. 20 How. 231 ; Adams Exp. Co. v. Trego, 85 Md. 62 ; Williams v. M. K. & S. Ry. Co. 3 Dill. 272. 5 Robertson v. Cease, 97 U. S. G48. 6 Godfrey v. Terry, 97 U. S. 174. 7 Alter v. Rickett, 24 La. An. 516. 8 Stout V. Noleman, 30 Iowa, 414 ; Kerviii v. Roberson, 49 Mo, 254. 9 Kervin v. Roberson, 49 Mo. 254 ; Lawson v. Cunningham, 34 Ga. 530. 10 Christian V. Bueal, 46 Miss. 674; but see Drea v. Carrington, 32 Ohio St. 603. 11 Merritt v. Home, 5 Ohio St. 318. 12 Carver v. Carver, 64 Ind. 196. 13 Belcher v. Chambers, 5S Cal. 640 ; see also Pennoyer v. Neff, 95 U. S. 714 ; N. Y. Life Ins. Co. v. Bangs, il The Reporter, 826. § 11. How acquired. — It has been suggested that when the United States was interested as a property owner in the subject- matter in controversy in a suit, that the court could, upon motion, enter an order fot it to enter its appearance, and plead within a given time, ancf direct that a copy of the order be served upon the district attorney, and also upon the attor- ney-general, or some other government officer, and that if it did not appear, and the record show such service, that it could then be treated like any other person. ^ There are three ways in which a person may be brought into a court of civil jurisdic- tion : (1) by writ of summons, executed according to law ; (2) by attachment of his property, and making publication in a newspaper for him; (3) by publication alone, which in some cases suffices without attachment of his property. It is, how- ever, always the privilege of a defendant to expressly waive any or all of these modes, and come into court voluntarily ; he is only seen in the eye of the law to be present or absent by what appears upon the records of the court. ^ Where a suit in equity is brought to enforce any equitable lien or claim uix)n real or personal property in the district, and against a defendant who is not an inhabitant of, and cannot be found therein, and such defendant does not appear voluntarily in such suit, the court may make an order directing such absent party to appear and 39 jrEiSDiCTiox. {} 11 plead on a day certain therein to be designated ; such order shall be served iipan the absent party wherever found, if prac- ticable, and if not, then it shall be published in such manner as the court du-ect. Upon failure to appear after such service the court may entertain jurisdiction ; '^ but in all cases brought to enforce or cancel personal contracts, or to recover damages for their violation, there must be a personal service of process upon the defendant,, or he must voluntarily appear. The de- fendant must be served within the district, and until such service or appearance the court does not acquire jurisdiction.* When the defendant is brought within the district by means of force or fraud of the plaintiff, and served with process, such service will be set aside.^ One defendant to a suit cannot recover judgment against a co-defendant without a cross-plead- ing and service of process, or an appearance to the cross-plead- ing.^ Where a person pending suit acquires the interest of the defendant it is jjroper to make him a party by a supplemental bill. In general it is not abslutsly necessary, as he will be bound by the decree ; but when the transfer is involuntary by act of the law, as in cases of assignee in insolvency, etc., he should be made a party in this manner.' Where, during pen- dency of suit, defendant (a non-resident) became insane, upon suggestion of that fact his attorney was appointed his guardian ad litem, without notice to his general guardian, who resided out of the State.^ Where an infant is a party the service of process d-pands upon the statutes of the various States, and there seems to be some confusion with reference thereto. Probably the better practice is to serve the infant personally if a resident, and also Ms father, mother, or guardian.'' If the infant is a non-resident he may be served by prblica- tion.i'' When he is not served a judgment rendered against Mm> even though he be defended by guardian ad litem, is void.^i 1 Fifth Xat. Bank r. Long, 7 Biss. 503 ; Elliott v. Van Voorst, 3 Wall. Jr. 299. 2 Straus v. Weil, 5 Cold. 124. 3 Forsyth v. Pierson, 9 Fed. Rep. 8C2. 4 N. Y. Life Ins. Co. v. Bangs, 11 The Reporter, 827 § 12 JITKISDICTION. 40 5 Blair r. Turtle, 11 The Reporter, :m ; Steig-?r r. Bonn, 5d Hov\-. Pr. 496 ; see also Shepard v. Goodheart, 5 111. App. 575. 6 Calvin v. Williams, 8 Bush, 346; Com. Bk. v. Buckingham, 12 Ohio St. 4(M. 7 Williams r. Winans, 20 X. J. Eq. 31)5. 8 Emery v. Parrott, 107 Mass. 103. 9 McAnoar v. Epperson, 54 Tex. 225 ; Ing-ersoll r. Ing-ersoll, 42 Mis.?. 162 ; Mcintosh r. Atkinson, 63 Ala. 241 ; Hodges i: Wise, 16 Ala. 514. 10 Ing-ersoII r. Ine:ersoI1.42 Miss. 162; Hodges?-. Wise, 16 Ala. 514; Clark r. Gilmer, 28 Ala. 265 ; Winston v. McLendon, 43 Miss. 259. 11 Moore v. Starks, 1 Ohio -St. 371 ; Mcintosh r. Atkinson, 63 Ala. 241 ; contra, McAnear v. Epperson, 54 Tex. 22.5. § 12. Attachment and publication. — When a non-resiclent is a iDarty to a suit, he cannot be compelled to appear and sub- mit Limself to the jurisdiction of the court in absence of per- sonal or constructive service within the jurisdiction ; ^ but a State may subject his property within its jurisdiction to the satisfaction of the claims of its citizens. Every State owes protection to its own citizens, and when non-i-esidents deal with them it is a legitimate and just exercise of authority to hold and appropriate any property owned by such non-resident to satisfy the claims of its citizens ; it is by virtue of the State's jurisdiction over the property of the non-resident situated within its limits, that its tribunals can inquire into the obliga- tions of non-residents to its citizens. ^ Tlie court must acquire jurisdiction over the property, and its seizure or that Vhich is equivalent (in this case), the levy of attachment upon it, is the one essential requisite of jurisdiction ; without it the court can proceed no further.^ The usual way to warn such absent i)ar- ties is by advertisement.* All such proceedings are in deroga- tion of the common law, and nothing is to be presumed in favor of jurisdiction. 3 When the statute provides a method by which property can be reached, it is not only to be strictly followed, but it must also be followed to the exclusion of any other method not clearly provided." So where the statute provides that from the time of service of summons the court is deemed to have acquired jurisdiction, and the defendant dies before publication is completed, the court acquires no jurisdiction through it, and can proceed no further in the action, except perhaps to direct the sheriff to abandon his levy.' 41 JTIRISDICTIOK. § 13 1 Elliott V. Van Voorst, 3 Wall. Jr. 303; X. Y. Life Ins. Co. v. Bangs, 11 The Reporter, S27. 2 Belcher v. Chambers, 53 Cal. 640; Pennoyer v. Xeff, 95 TJ. S. 723. 3 Cooper r. Revnolds, 10 Wall. 319; and see Williams v. Welton, 28 Ohio .St. 469 ; Pennoyer v. Xeflf, 95 U. S. 723, 733. 4 Elliott V. Van Voorst, 3 Wall. Jr. 303 ; cases cited supra. 5 Hallett i\ Righters 13 How. Pr. 46; Thatcher r. Powell, 6 Wheat. 12G; Mcilinn v. Whelan, 27 Cal. 314. 6 Grigsby c Barr, 14 Bush. 333 ; compare generally Pennoyer v. 3Cefr, 95 U. .S. 723; Cooper v. Remolds, 10 Wall. 319, and cases there cited ; Holly v. Bass, 63 Ala. 391 ; Fontaine v. Houston, 5S Ind. 316. 7 Auerbach v. Maynard, 26 Minn. 423. § 13. Publication continuBd. — Non-residents served with process by publication can only be considered as in court for the purposes stated or necessarily arising out of the ob.jec_ of the bni as stated in the order of publication.^ When a eop) of the publication is required to be sent to the defendant by maii, his residence being shown, a sending to the -postofl&ce of the defendant is not necessarily a sending to daiendant at his post- office.2 So the residence being shown as Goodwin, Holmes County, sending t3 Goodwin is not sufficient.^ Under the Code of Iowa it was held that an .nfant could be served by pubhcation in the same manner :.<3 an adult.- In South Caro- lina it was held such a proceediiig could, not be accorded with- out the clearest law to thdo eflect.^ In a -proceeding by a guardian to sell the real sstate of a lunatic to pay his debts, etc., the statute (AYisconsui) provides, -the order of the county court to show cause why the application for such license shall not be granted," ecc , shall be published, etc., .... and a copy thereof servaa upon all persons interested in the estate ; provided, how::-ver, that if all persons interested shall signify in writing then- assent to such sale, the notice may be dispensed Tvith — helvi that so far as the rights of the lunatic were con- cerned, .-.0 jurisdiction of the court attached upon the filing of the guardiau" petition setting forth the facts required by stat- ute ;nat the pubhcation of notice is only intended for the pro- tection of parties having adversary interests in the property, £.nd was not essential to the jurisdiction of the court.^ In Mississippi the unknown heirs of a decedent, when necessary § 14 JURISDICTION. 42 parties to a proceeding, may be made such by publication, as in case of absent defendants; i. e., describing them therein as the unknown heirs of the decedent.'' In Illinois such publication was held to be insufficient to bring the known heirs of decedent's wife before the court. ^ As a general rule it may be stated that in an action to obtain a personal judgment for the payment of money against a non-resident, jurisdiction over his person can- not be obtained by a service of process by publication. *♦ 1 Fox V. Reynolds, 50 Md. 572. 2 Holly V. Bass, &} Ala. 391 ; Scorpion S. M. Co. v. Marsano, 10 Xev. 383. 3 Paulling v. Creagh, 63 Ala. 401 ; Smith v. Wells. 69 N. Y. 602. 4 Howard v. Entreken, 11 The Reporter, 428 ; see also Hodges r. Wise, 16 Ala. 515. 5 Bailey v. Whaley, 14 Rich. 82. 6 Mohr r. Mannierre, 101 U. S. 421. 7 Reed v. Gregory, 46 Miss. 746; compare Piirdy v. Henslee, 97 111. m. 8. Piirdj- V. Purdy, 97 III. 394 ; compare also City of New Orleans v. Heirs de St. Romes, 28 La. An. 17. 9 Belcher v. Chambers, 53 Cal. 640 ; Pennoyer v. Xeff, 95 U. 8. 714-727; Purrott r. Ala. Ins. Co. 11 The Reporter, 425; compare also Clayton r. Clayton, 4 Colo. 415: Lutz v. Kelly, 47 Iowa, 310; compare generjillv Foster ik Henderson, 54 Iowa, 220; Collinson r. Teal, 4 Sawy. 243 ; Peck v. Cook, 41 Barb. 551 ; Clarke v. Boreele, 21 Hun, 595. g 14. Of the appearance of a party to the action. —Any appearance of a party in a cause, save for the purpose of taking advantage of a want of jurisdiction, is a general appearance to the action! — i_ p^^ ^ny motion which calls into action the powers of a court for any purpose except to decide upon its own jurisdiction. 2 Any motion which asks for relief which can only be gi-anted upon the hypothesis that the court has jurisdiction of the cause, and of the person^ filing a general demurrer, is an appearance.* So, also, an indorsement upon the original bill in the following words— "I hereby waive the necessity of publication of this bill, and agree that the service shall be considered as perfected, and no objection to be made, I claiming the right to the same length of time to plead as in case of non-residents; signed, D. M. S., Sol. for J. M. L." — was held a general appearance,^ filing a plea in abatement.** So in Kentucky prosecuting an appeal,^ or writ of error, ^ but 43 JTEISDICTIOX. § 14 appearing for the sole purpose of presenting the question as to ■whether the court has obtained jurisdiction over the person of defendant, is not a general appearance.'' So where an attach- ment is sued for the purpose of bringing a party into court, as ■well as to impound his property:^" but if the attachment is merely ancilliary to the suit, and used only for the purpose of holding propirty in the custody of the court, in such case it may bo abated, leaving the plaintiff to j)rocced as if in the first iastance ho had commenced by summons without attachment.'^ So filmg written objections to the manner of service of pro- cess is not a general appearance ; '^ nor is the filing of motion to dismiss the action for want of service,'^ or that no summons had been issued withm the time required by law.'* An appear- ance will be taken to bo general unless the contrary appears. '^ The motion should be limited to the specific pui-pose.'*' The following — "now comes the above named defendant and ap- pears in the said action for the sole pui-pose of making a motion to quash the summons in and dismiss said action" — was in California held sufficient to allow defendant to be heard upon the motion.'' A defendant after service must either appear and go to trial or quit the field altogether ; he cannot occupy an ambiguous attitude.'** 1 Aultman v. Steinan, 8 Xeb. 112; Coad ?-. Coart. 11 Wis. 26; Foote V. Richmond, 42 Cal. 443. 2 Wood r. Youug, 33 Iowa, lOS; Cropsey r. Wiggsnhorn, 3 Neb. 116. 3 Coad V. Coad, 41 Wis. 26. 4 Kegg V. Welden, 10 Ind. i50. 5 Jones r. Beverly, 45 Ala. 16.), 6 Southard v. Steele, 3 Mon. 447: contra, Sherrv r. Bevine, 11 Heisk. 725 ; Baily v. Shrader, 34 Ind. 261. 7 Culton V. Commonw. 9 Bush, 703. 8 Lawlins v. Lackey. 6 Mon. 70. 9 Baily v. Schrader. 34 Ind. 261 ; Huff v. Shenard, .53 :Mo. 246 ; Mc- ::sab V. Bennett, 66 111. 15a ; Cropsey v. Vv^iggeiiliorn, 3 Ti^eb. 116. 10 Sherry v. Devine, 11 Heis::. T25. 11 Ivruger v. Stayton, 11 Ileis'c. 727. 12 Crary v. Barbur, 1 Colo. 174. 13 rs'ye V. Liscomber, 21 Pick. 266. 14 L. G. Min. Co. r. Sheplar, Si Ca!. 245. g 15 JT'EISDICTIOX. 44 15 Despler v. Foster. 1 Morr. Trans. 532. 16 Flake v. Carson, 33 111. oilG. 17 Lander v. Fleming, 47 Cal. 615. 13 Tower v. Moore, 52 Mo. 120. § 15. Who may appear in an action, and how he may appear. — As a general rule any defendaut may voluutarily appear in an action,^ either legal or equitable,"'^ with or without the consent of the plaintiff,^ in propria persone,^ or by attor- ney.^ He cannot, however, as a matter of right, appear both in his own person and by counsel.*^ The right is alternative, if he appears by counsel ; he must be heard through him,'' This rule applies to corporations with this exception, they can only appear by counsel.*^ A lunatic or idiot appe .rs by his guardian jr committee ; if also an infant, by guardian ad litem ; ^ he can- not appear by attorney.^" An infant cannot appear and defend a suit in person, nor appoint an attorn^^ to do so for him. His rights are under the protection of the court, which appoints a proper person to defend for him.^^ His guardian cannot enter an appearance for him,i2 j^qj. c^n he be brought in by stipulation cf attorneys. ^^ When there. are several defendants in an action, one may in absence of instructions to the con- trary enter an appearance and defend for all ; i* but where only part are served with process, and an appearance is entered by an attorney for "defendants," it will be presumed to be an appearance for those only who are served with process. ^^ Such appearance, however, was in California held to include defend- ants not served as well as those served.^'' Where counsel ap- pear specially for certain defendants, his signature to pleadings after, "for defendants," will be construed as limited to those for whom he expressly appeared. ^^ 1 Higgin V. Rockwell, 2 Duer, 6.52; Davidson v. Thornton, 7 Pa. SL. 13:3. 2 Nelson v. Moon, 3 McLean, S20. 3 iOlls r. Belts, 8 Mon. B. 427. 4 Henk r. Todhunter, 7 Har. & J. 278. 5 Hill V. Mendenhall, 21 AVall. 455; Everett ?■. Warner Bank, 10 The Reporter, 275; Dyer i'. North, 44 Cal. 15J; Hightower r. Haw- thorn, 1 Hemp. 43. 6 Talbot V. Talbot, 2 Marsh. J. J. 4. io JTKISDICTION. § 16 7 Board of Commrs. v. Younger, 29 Cal. 149. 8 Attv.-r4enl. v. Guard Mut. L. Ins. Co. 77 X. T. 274 ; >'ixou v. S. W. Ins. Co. 47 lU. 444 ; State Bank v. Bell, 5 Blackf. 127. 9 Rogers v. McLean, 34 2s. Y. .>12 ; compare Weber r. WeitlLng, 18 X. J. Eq. 442. 10 Jelly V. Elliott. 1 Cart. 120. 11 Winston r. McLendon, 43 Miss. 257 ; Kennedy v. Gaines, 51 Miss. 629; Mclntosch r. Atkinson, 63 Ala. 242; Bonnell v. Holt, 89 111. 77; Green r. Harrison, 3 Sneed, 132. 12 Greenman v. Harvey, 53 111. 289 ; Kennedy v. Gaines^ 51 Miss. 627; compare Cowan »•. Anderson, 7 Cold. 290; Merritt '•. Home, 5 Ohio St. 31S ; contra, Ankenv, v. Blackiston, 7 Oreg. 412 ; Smith i-. Mc- Donald, 42 Cal. 487 ; Walker v. Veno, 6 S. C. 462. 13 INlcDermaid v. Kussell, 41 111. 490. 14 Scott i: Larkin, 13 Vt. 114. 15 Gardner ?'. Hall, 29 111. 278; Whitney r. SUver, 22 Vt. 637; Doughertv r. Shown, I Heisk. 303; compare Kadcliff r. Xoves. 53 111. 320 ; Humphrey v. Xewhall, 48 111. 117. 16 Rowland v. Coyne, 55 Cal. 3 ; same effect, Ken von v. Shreck. 52 111. 384. 17 Spangel v. Bellinger, 42 Cal. 149. § 16. Effect of appearance — "Waiver, etc. — The volun- tary appearance of a defendant in an action is equivalent to a personal service of process upon him,i and is a waiver of any defect therein ; 2 in fact, when the defendant voluntarily ap- pears it does not matter whether summons is good, service defective, or whether there has been any process in the case.'* When a party appears specially to object to the jui'isdiction of the court he should confine his motion to that question alone.* Such appearance will not give the court jurisdiction over him.^ Nor does he abandon his objection by contesting subsequent proceedings in the case.** While a general appearance will operate as a waiver of service, etc., it has no retrospective effect. It operates from the time of appearance, and dots not waive the bar of the Statute of Limitations when the statutory time has elapsed prior to its entry." Neither does it waive time to plead. s It however waives objection that the bill is not signed either by complainant or his counsel.** If sued by a name materially different from his own, defendant must object at time of his appearance. i" So, also, if a non-resident who is sued enters his appearance in the action he cannot afterward object to the jurisdiction of the court over his person. ^^ § 17 JURISDICTION. 46 "Where a cause is irregularly transmitted, by consent of parties, from an inferior to a superior court, and the superior court had original jurisdiction of the subject-matter of the suit, an appearance in the superior court will waive the irregularity.^^ The appearance of a defendant upon motion to assess damages (after his default has been entered in the cause), and partici- pating in the selection of the jury offering evidence, etc., waives all objection to service of process ;^"* but will not cure a void summons, or waive objections thereto. ^^ 1 Habich v. Folger, 20 Wall. 7 ; Citv of New Orleans v. Walker, 23 La. An. 803 ; K. R. Min. Co. v. Walker, i Orpg. :«3 ; Fla. Ry. Co. v. Gens- ler. 14 Fla. 125 ; Coad v. Coad. 41 Wis. 26 ; Bank of Vailev v. Bank of Berkelej^ 3 W. Va. 391 ; Albertson v. Williams, 23 Ind. 613. 2 Kane v. The People, 4 Neb. 512 ; Rice v. Q. & St. Louis Rv. Co. 3 Mo. App. 33 ; Free v. Haworth, 19 Ind. 404. 3 Wasson v. Cone, 86 111. 47 ; Baldwin v. Murphy, 82 111. 489. 4 Porter v. C. & N. W. Ry. Co. 1 Neb. 15 ; Aultnam v. Stenam, 8 Nev. 109. 5 McNab V. Bennett, 66 111. 161 ; Simcock v. Nat. Bank, 14 Kan. 530 ; see Marin v. Thierry, 29 La, An. 362 ; also Harkness v. Hyde, 98 U. S, 479. 6 Harkness v. Hyde, 98 U. S. 479 ; Lyman v. Milton, 44 Cal. 635. 7 Etheridge v. Woodley, 83 N. C. 13. 8 Harker v. Fahie, 2 Oreg. 89 ; Maud v. Wear, 55 Cal. 25. 9 Turner v. Junkins, 79 111. 2.30. 10 McCarthy v. McCarthy, 66 Ind. 133 ; V. & M. S. Nav. Co. v. U. S. 1 Taney, 420. 11 Varner v. Radcliflfe, 59 Ga. 449; Jones v. Beverly, 45 Ala. 162; Kelsey v. Penn. Ry. Co. 14 Blatchf. 89. 12 Chester v. Embree, 1 Peck, 370 ; Elkins v. Sams, 3 I-Iayw. 44 ; same connection, compare Coull v. Keener, 18 111. 65. 13 Ryan v. Driscoll, 83 111. 417. 14 Briggs V. Sneghau, 45 lud. 18. § 17. Withdrawal of appearance, its effect. — When a party has appeared in an action, his appearance can only be withdrawn upon permission of the court, and the privilege will only be granted upon the exercise of sound legal discretion.^ Such permission will not be granted simply upon a showing that the attorney who entered the appearance had no authority ; the defendant himself not disavowing the right to appear. ^ The appearance of a party may bo withdrawn even in the appellate court.^ The filing of a plea is both an appearance 47 JUEISDICTION. § 17 and a defense, but the withdrawal of the plea does not have the effect of withdrawing the appearance of the defendant, and requiring the plaintiff to take steps to bring him again within the jurisdiction of the court. He is not by a withdrawal of the plea out of court,* but if he withdrew his appearance his plea goes with it. Without an appearance a party cannot answer, nor can an answer stand where there is no appearance ; there- fore if the appearance is withdrawn, and no new appearance filed, and time for answer has expired, default is proper,^ 1 The X. A. cS: S. Ry. Co. v. Combs, 13 Ind. 490 ; Rhode Island r. Mass. 12 Peters, 760. 2 Mallett V. Girard, 3 Edw. Ch. 392. 3 Rhode Island v. Mass. 12 Peters, 160 ; U. S, v. Yates, 6 How. 60S. 4 Creighton i\ Kerr, 20 Wal. 13 ; see also Evans v. lies, 7 Ohio St. 236 ; E] ^red v. Bank, 17 Wall. 5-51. 5 Sloan v. Witbank, 12 Ind. 445; to same effect see Creighton ?'. Kerr, 20 Wall. 13; Eldred v. Bank, 17 Wall. .551; compare Abdil v. Abdll, 33 Ind. 460 ; contra, ilichew v. McCoy, 3 Watts &. S. 501. §18 XECESSAKY AND PKOPEE PARTIES. 48 CHAPTEE III. XFXESSAKY AND PKOPER PAKTIES. g IS. What persons should be made parties to an action. i 19. Exception to the general rule. § 20. Who are not necessary parties to a suit. g 21, Who are necessarj' or proper parties in actions relating to estates of (a), insane persons (b), minors (c) married women. § 22. To the estates of decedents. i 23. To trust estates. § 24. In suits by creditors, assignees, sureties. i '25. In suits by co-partners' corporations. § 26. In suits relating to land and laud titles. § 27. In suits to enforce liens. § 23. In bOls to redeem, for partition, injunction. §18. What parsons should be made parties to an action. — At law as a disputed issue is alone contested, only those i^er- sons who are the immediate dispr.tants should be parties to the action, and they alone will be bound by the decision ; but in equity a decree is asked and not a decision merely ; it is requisite, therefore, that all persons whose interests may be affected by the proposed decree, or whose concurrence is neces- sary to a complete determination of the suit, should be parties, ^ in order that there may be an end of litigation. ^ All persons having a legal or equitable interest in the subject-matter of the suit must be made parties,^ either as plaintiff or defendants ; * all persons having an interest in the object of the bill;^ the question must depend in a great measure upon the object as well as the subject of the bill, the relief sought, the privity be- tween the parties, and the manner in which their several inter- ests may have arisen.^ Generally speaking, all persons whose interests are in issue and would be affected by the decree should be made parties." There are qualifications of the gen- eral rule arising oiit of public policy, and the necessities of particiilar cases. The true distinction appears to be as follows : •iD NECESSATvY A:0 PRC»PER PARTIES. § If First, when a person will be directly affected by a decree be is B.n indispensable party. *^ Second, where a person is interested in the controversy, but will not be directly affected by a decree in his absence, he is a necessary parti/, and should be joined if possible ; the court will not proceed to decree if he can be reached.** Thirel, where he is not interested in the controversy between the immediate litigants, but has an interest in the subject-matter that may be conveniently settled in the suit and thereby prevent further litigation, he may be a party or not at the option of complainant.^" To constitute a necessary party to a suit, there must exist an interest in fact, or such an agency or trust in rijht of another as to make his recognition as a party essential to the security of the principal or cestui que trust ^^ 1 Tobin V. Walkinshaw, 1 :McA11. 23. 2 ■Williams v. Bankhea-l, V.) Wall. 571 ; Williams v. Russell, 19 Pick. 16),- Stevenson v. Austin, 3 Met. 480; Hicks v. Campbell, 19 X. J. Eq. Ii5; Hill V. Proctor, 10 W. Va. 78; Story r. Livingston. 13 Peters, 375; Hawkins v. Chapman, '^6 Md. 99; Xewcombe v. Horton, 13 Wis. 5(53; rule under Code practice, Kimball ?-. Connor, 3 Kan. 4:^0; James v. Williams, 31 Ark. 177 ; Inglehart v. Moore, 21 Tex. 504. 3 Wyche v. Green, 32 Ga. 344; Crocker v. Higgins, 7 Conn. 316; Harris r. Cornell, 80 111. 64. 4 McCaleb v. Criclifiela, 5 Heisk. 231 ; McCleUan v. McClellan, 65 Me. 500. 5 United States r. Parrott, 1 McAll. 279 ; Van Kueren v. McLaugh- lin, 21 2> . J. Kq. IGo ; MuUins v. McCandless, 4 Jones Eq. 42S. 6 Walter v. Biehl, 38 Md. 216. 7 Cassidv v. Shimmin, 122 Mass. 409; State v. Sanderson, 54 Mo. 203; Bittinger v. Bell, 65 Ind. 452; Bell v. Woodward, 42 X. H. 189; Gilmore v. Johnson, 14 Ga. 636. 8 Board Supervisors v. Wallbridge, .38 Wis. 183 ; Mallow v. Hinde, 12 Wheat. 193 ; Harris v. Cornell, 80 111. 65 ; Lewis v. Elrod, 38 Ala. 21 ; Abbott r. A. H. R. Co. 4 Blatchf. 492; Lynch v. Rotan, 19 111. 20; Robertson v. Carson. 19 Wall. 94. 9 Hardi!ig v. Handv, 11 Wheat. 132 ; Hicks v. Campbell. 19 X, J. Eq. 136; compare Ches. & O. Can. Co. v. Blair, 45 Md. 103. 10 Wormslev v. Wormslev. 8 Wheat. 422, and cases cited note a ; Williams r. Bahkhead, 19 Wall. 571 ; Shields v. Barron, 17 How. i;J9; Tobin V. Walkinshaw, 1 McAlI. 31 ; BIrdwell r. Butler, 13 Tex. Ml. 11 Baker v. Rowan, 2 fetewt. & P. 353. § 19. Excsptions to the general rule. — The rule that aU persons having an interest in the suit should be made parties is not inflexible. It is a rule of convenience, adopteel by courts Parties — o § 19 NECESSARY AND PKOPEE PASTIES. 50 of chancery to shorten litigation, to prevent doing business by halves, and may be dispensed with when impracticable or very inconvenient ; 1 as when such persons are very numerous, 2 or are unknown,-* or are dead and their representatives arc un- known,* or arc insolvent,^ or beyond the jurisdiction of the court,'' and the fact is stated in the bill and proved.^ This latter ground of exception is peculiarly applicable to suits in equity in the courts of the United States, and the doctrine ordinarily laid down on this point is that when the persons who are out of the jurisdiction are mere passive objects of the judgment, or their rights are merely incidental to those of the parties before the court, then, inasmuch as a complete decree may be obtained without them, they may be dispensed with ; but if such absent persons are to bo active in the per- formance or execution of the decree, or if ihey have rights wholly distinct from those of the other parties, or if the decree ought to be pursued against them, then the court cannot prop- erly proceed to a determination of the whole case without their being made parties.*^ The rule being a rule of convenience, courts will not allow it to be so applied as to defeat the very purpose of justice if they can dispose of the merits of the case before them without prejudice to the rights of other persons who are not parties, or if the circumstances of the case render the application of the rule impracticable.^ To enable the court to proceed in absence of necessary parties, the riglit to be asserted or protected must exist against all, or the obliga- tion sought to be enforced must be common to all.^^ It is not sufficient to allege in the pleadings that other persons are so numerous that it would be impracticable to bring them all before the court; but the nature of their common interest must appear to be such as would entitle them, were they all before the court, to maintain the action in their own right, or in their own names ;'i anel a sufficient number of the persons interested to represent the rights of all must bo before the court. ^2 The plaintiff who has omitted to make such persons parties, when as the case stands there appears no reason why they should be parties, nor why because of their omission 51 N-ECESSABY A>T) PROPER PARTIES. § 20 relief shoulcl bo denied, cannot set up the fact of tlieir omis- sion to defeat the equitable protection asked by the defendant.^' 1 Donald r. Plumb, 8 Conn. 457 ; State v. Burkhardt, oO :Mo. 78 ; see Elnni V. Garrard, 2o Ga. 557 ; East Rome Town Co. v. Xagle, bi Ga. 473, 2 Board Supervisors v. Wallbridge, 'S8 Wis. 188 ; Gorman v. Rus- sell, 14 C.il. oi'; Darling v. Osborne, 51 Vt. 153; Dana v. Brown, 1 Marsh. J. J. :i06. 3 Stevenson v. Austin. 3 Met. 480 ; McCaleb v. Critchfield, 5 Heisk. 291; Ryan r. Lynch, G3 111. 165; Hojde r. Moore, 4 Ired. Eq. 177; In- gram V. Lanier, 1 Hayw. (X. C.) 253 ; Behzeiu v. Lenoir, 1 Car. Law Rep. 5W. 4 Davis ?•. Hoopes, 33 IMIss. 183 ; St. John v. Hardwick, 11 lud. 252. 5 Vratts r. Gayle, 20 Ala. 824 ; Burroughs v. Lott, 10 Cal. 1-6. 6 Cassidv?'. Shimmin, 13C Mass. 410; I'nited States v. Parrott, 1 McAIl. 280 ; McCaleb v, Critchfield, 5 Heisk. 231. 7 Yann r. Hargett, 2 Dev. & B. Eq. 36. 8 Grav v. Larrimore, 2 Abb. V. S. 555 ; United States v. Parrott, 1 McAIl. 250; ::*.rallow ?'. Hinde, 12 Wheat. 194; Barney r. Baltimore, 6 Wall. 285 ; McPike v. Wells, 54 Miss. 145. 9 United States r. Parrott, 1 McAll. 280 ; Willeik v. Morris C. & B. Co. 3 Green Ch. 338. 10 Reid V. The Evergreens, 21 How. Pr. 321 ; Ronton v. Brooklvn, 15 Barb. oX. 11 Habi?ht v. Pemberton. 4 Sand. 657 ; also Hammond v. H. R. Q, & M. Co. 20 Barb. 330 ; Roane v. Pickett, 7 Ark. 413. 12 Darlir.g v. Osborne. 51 Vt. 1^ ; Reid v. Evergreens, 21 How. Pr, azi ; Stinsou v. Lewis, 36 Vt. 93. 13 Woodruff r. Depae, 14 N. J. Eq. 176. § 20. Who are not necessary parties to tne suit. — A per- son whose interest is contingent, depending upon the exercise of his own discretion, and who can in no respect be affected by the suit in the exercise of that discretion, is not a necessary party to the proceeding.^ So a person need not be made a party Trho has no possible interest in the fund in controversy, and particularly when there is no defense that he alone or in conjunction with defendant could interpose to defeat the claim of plaintiff, which defendant alone could not, with at least equal propriety and equal cffact, introduce. ^ A nominal jmrty to a contract who has assigned all his interest will not be required as a party, if the court can see in the particular case that there exists no necessity for the joinder of such person on that account.-* When property the subject of a suit is trans- ferred pending the litigation by a party thereto, the rights of the § 21 >-ECESSARY AXD PROPER PARTIES. 52 other party a:? a, rule are not affected tliereb3\ If the transfer is voluntary, the alienee may be joined or not at the election of the complainant ; •* but if involuntary, as by operation of law, he must be made a party.^ A person need not be made a plaintiff in whom there exists no interest, and one from whom nothing is demanded should not be made defendant.^ In loAva it has been held that in case of a road district, where no law declared it to be a body corporate, capable of suing or being sued, and there being no law authorizing it to sue or making it liable to a civil action, such road district could not be a party to a suit cither as a corporation, quasi or otherwise.^ So in Isorth Carolina, where the legislature deprived a board of township trustees of its existence as a municipal corporation, it could not thereafter be a party to a suit.^ 1 Vallette v. W. V. Canal Co. 4 McLean, 1C6. 2 Taylor v. Plosick, 13 Kan. 526. . 3 Day v. Cummings, 10 Vt. 439. 4 Bennett v. Calhoun Assoc. 9 Rich. Eq. 177 ; Darlin:? v. Osbc7:ie, 51 Vt. 1.33; Godden v. Vanghn, 14 Graft. 126; Ufibrd v. Wells, 52 Tox. 61'); Harmon v. Byron, 11 V/. Va. 513; Steele v. Taylor, 1 Minn. 278; Pond V. Clark, 24 Conn. 3S4 ; Staclcett v. Goodman, 47 Md. 54. 5 Sedgwick v. Cleveland, 7 Paige, 2J0; De Bell v. Foxworthj-, 9 Mon. B. 231. 6 Kerr v. Watts, 1 AVheat. 553; Goodman v. Moore, 22 Ark. l';7; McKnight v. Watkins, G Mo. App. 118 ; Planson v. Harrell, 56 Miss. 2CJ. 7 White V. Boad District, 9 Iowa, 202. 8 Wallace v. Trustees, 84 N. C. 164. § £1. Who are necessary cr proper per ties in rxticns relwti"f^ to estates of— (a) insane persons, (b) miners, (c) married vomen. — (;;) Insane persons. In a si:it in per- sonam in equity a lunatic should not be deemed an indispen- sable though he is a proper party ; ^ but where the individual who is the committee has a personal interest in the contro- versy, and where such interest may or necessarily must conflict with that of the lunatic, the latter should be a party.^ So also in an action for partition of land^ in ejectment,- and generally he is properly made a party to all suits concerning Lis prop- erty, unless it is otherwise provided by statute.^ The rule seems to be the same in law as in equity, and there is no dis- 53 N-ECESSAKT AST) PEOPEK PAETIES. g 21 tinction between real and personal actions.^ (h) Jlinois must be x^arties to all suits by which their right in property is sought to be affected.' The general guardians of such persons are also necessary parties to such suits. "^ When an action is brought by an infant ward against his guardian for an account, all other persons who are interested in the general fund are necessary parties ; ^ the surety ought also to be a party ; ^" but the heirs of a former guardian are not necessary parties to a bill by the subsequent guardian and ward against the executor and sureties of the former guardian for a settlement. ^^ In an action upon a contract made by a guardian for boarding and clothing his ward, plaintiff may sue the guardian alone ;^2 -^-jj^ in an action by a guardian to rescind a contract made by his ward for the purchase of land, the ward is a necessary party. ^^ (c) Married tcoraen. A married woman is a necessary party to an action only from the time she is ordered to answer sepa- rately ; 1* she is a necessary party to suits brought to subject her separate estate to payment for supplies and necessaries. ^^ Generally the husband is a proper party to all suits affecting the separate property of the wife,^*' and where such separate estate is held in trust the trustee must be made a party. i' If the object of the suit is to take the tnist fund out of the hands of the trustee, or a bill for the execution of the trust, all the cestui qui trust must be made parties. i** In a suit in equity by the wife respecting her separate property, the husband is not a necessary or proper party complainant, J** but may properly be made a defendant. '-^^ Generally whatever may be the nature or character of the demand against a married woman, her hus- band may properly be joined in the action. 21 In suits to recover for antenuptial debts, the husband ought (for uni- formity) to be joined with his wife as defendant. 22 Where the the husband of a complainant in a suit brought to recover her separate estate is made defendant, it was held upon his death that his heirs should be made parties, unless it should appear npon the exhibition of the will or marriage settlement under which she claimed that they have no intei'est.-'^ The wife has no such interest in the common property as to> make her a § 22 NECESSABY AND PEOPER PAP.TIES. 54 necessary or pi-oper party in suits relating thereto.-* Where a fand was raised "by the sale of certain lands by decree of a court of equity, the wife of one who claimed a part of the fund was held to be a necessary party to a suit relating thereto, it being alleged that she held an interest as a tenant in common in the lauds at time of the sale. 25 1 Berrj- v. Rogers, 2 Ben. 308 ; Executors etc. v. Van Cortland. 2 Johns. Cli. 24-J ; compare Harrison v. Rowan, 4 Wash. C. C. 207. )2 Seal V. Woodworth, 3 Paige, 475. 3 Gorham v. Gorham, 3 Barb. C'h. 37. 4 Petrie v. Shoemaker, 24 Wend. 85. 5 McKillip V. McKillip, 8 Barb. Ch. 555 ; Ex parte Xorthington, 37 Ala. 498. 6 Lane v. Schermerhorn, 1 Hill, 97. 7 Hiekenbotnam v. Blackledge, 54 111. 318 ; Este v. Strong, 2 Ohio, 406 ; Mcllvoy v. Alsop, 45 Miss. 372 ; Botsford v. O'Connor, 57 III. 76. 8 Bloodgood V. Mickle, 15 Abb. Pr. 107. 9 Handry v. Clardy, 8 Fla. 82 ; compare Taylor v. Taylor, 6 Ben* 565. • 10 Handry v. Clardy, 8 Fla. 82. 11 Taylor v. Taylor, 6 Ben. 564. 12 Lindsey v. Stevens, 5 Dana, 105. 13 Smith V. Todd, 5 Marsh. J. J. 7. 14 Dennison v. Potts, 11 Smedes & M. 42. 15 Milburn v. Walker. 11 Tex. 340* see Cannon v. Hempill, 7 Tex. 200. 16 Winston v. McLendon, 43 Miss. 259 ; Cannon v. Hempill, 7 Tex. 200. 17 Llemers v. Kleeberg, 56 Mo. 201 18 Sherman v. Burn ham, 6 Barb. 414. 19 Tantum v. Coleman, 26 N. J. Eq. 130. 20 Tunnard v. Littell, 23 N. J. Eq. 263. 21 Carothers v. McNese, 43 Tex. 223 ; but see Lehman tr. Hauk, 42 N. Y. 207 ; see also chapter Husbaxd and V/lfe, infra. 22 Cannon v. Grantham, 45 Miss. 95. 23 Shepherd v. Harrell, 9 Humph. 641. 24 Mott V. Smith, 16 Cal. 557; Crow v. Van Sickle, 6 Xev. Ud; Shelby v. Pervin, 18 Tex. 517. 25 Howerton v. Wimbish, 2 Jones Eq. 3;31. § 22. Who are necessary or proper parties in suits relat- ing to the estatss of decedents. — When a suit is brought to Lave a will construed, all persons interested in the estate thereby sought to be conveyed should be made parties. ^ To a 55 XECESSAKT AND PBOPIR PABTIES. § 22 bill seeking to set aside a will all legatees and devisees are indispensable parties. ^ A person who is charged with fraud and collusion in obtaining the will in favor of an infant is prop- erly made a party, ^ A person who claims by title paramount to the will ought not to be a party to a bill to carry into effect the trusts therein created.* Where assets of the estate are to be recovered the legal representative of the estate is the proper person to maintain the action ; ^ if an executor and a marri^ d woman, her husband is properly joined with her as party to the suit.^ When a bill is filed to enforce a contract for the con- veyance of lands, executed by the decedent, the heirs, and hus- band of a female heir," are necessary parties to the proceeding.^ So where the widow and heirs of decedent executed their title bond to real estate of wliich decedent died seized, and the pur- chaser executed his note to the widow alone in payment there- for, held that the heirs were necessary parties to a suit upon the note; to enforce the purchase price.** The executor of a deceased mortgagor is a necessaiy party to a bill to recover possession of the mortgaged premises. i" When an action in the nature of an action to try title to lands is brought against an administrator, the heirs of the decedent should be made par- ties. ^'^ In an action to enforce payment of a claim against an estate, the administrator is a necessary party defendant. ^'^ In an action against the surety of a deceased administrator for the devastavit of his principal, the representative of the admin- istrator is a necessary party. ^^ In equity, if persons have prop- erty of the estate, or are debtors thereof, or if collusion exists between them and the administrator, they may be made par- ties ;i* but a mere naked bailee need not be made a defendant. ^^ If it is sought to reach property in the hands of a donee of the decedent, the administrator must be made a party ; ^^ the heirs also are necessary par ties. ^^ When an estate is in course of administration in the usual way, and it is not shown that assets have come into the possession of heirs, they are not necessary parties ; '^ but if it is sought to subject real assets of the estate to payment of the debts of decedent, the heirs are necessary parties to such proceeding ; i** so is the administrator.'-^" The § 22 ISECESSABY AND PROPER PARTIES. 56 heirs can only be sued without joining the administrator in two cases when a judgment has already been obtained against the administrator, and there are no personal assets, ^^ and where there is no administration within a year.^^ jj-^ ^^ action to sub- ject assets devised to payment of decedent's debts, the adminis- trator must be a party, ^^ unless his accounts have been made up and the estate regularly delivered over to the legatees. 2* All the legatees arc necessary parties, especially when the interest of each is uncertain ; 2^ but creditors are not indispensable par- ties. 2<^ In a suit to recover over advances made by the adminis- trator, those distributee^ who have refunded the amount duo from them are not necessary parties. ^^ When it is sought to subject the destribulive share of a Avife in an estate to the pay- ment of a debt due by her husband, and to set aside an assign- ment of the share made by the husband to a trustee for the benefit of the wife, she is a necessary party to the proceeding.-'^ In an action against executors to recover trust funds (money) , specifically bequeathed by the testator, but which are alleged to belong to plaintiff, the legatees of such funds are not necessary parties. ^'^ When lands are directed by will to be sold and con- verted into money, the executor, and not the heirs, represent the estate, and the latter are not necessary j^artics to a suit con- cerning the disposition and charges on such estate.^" When a bill is filed for an account of the personal assets of decedent, the administrator must be made a party ;^^ and if a married woman, her husband should be joined ;^2 if the action be against the administrator, and property of the estate has been received by a deceased agent of the administrator, and heirs who claimed a large amount for services, the representative of such deceased agent should be made a party ; •^•^ but a person who holds pos- session of lands under claim of title is not a proper party to such suit, brought by a judgment creditor, and who claims that such land is bound by the judgment.^^ Legatees (not being residuary legatees) are exceptions to the rule tliat all per- sons interested in the trust fund must be parties ; one legatee or one creditor may sue on behalf of himself and the others may come in under the decree. ^^ The heirs of a deceased partner are 57 NECESSABT A>'D PKOPEE PABTTES. g 22 proper but not uecessary parties to such suit against the admin- istrator; they are liable only to the extent of lands descended to them, and when it is shown that the personal assets are ample the bJl may be dismissed as to them ; ^^ but residuary legatees are necessary parties to such proceeding.^" As a gen- eral rule all the next of kin are necessary parties to a bill for final settlement and distribution;^^ if any be dead their per- sonal representatives should be joined ; ^^ but if the estate of the deceased distributee be closed and vested in the heir who is a party, or there are no debts, a personal representative is not necessary to represent such estate. ^^ In an action to recover a legacy or distributive share the personal representative of such estate must be a party. ■*! The sureties on his official bond are also proper parties,*-' and if some be dead their representatives should be joined ;*^ if the fund sought to be distributed is in the hands of an adverse claimant, and the bill is for its recov- ery and disn-ibution, the representative of decedent is an indis- pensable party to the proceeding.*-^ When the bill charges the assets of the estate to be in the hands of the surviving executor, the representative of the deceased co-executor is not a necessary party, but he is necessary when he is charged with assets, or when fraud or collusion is charged between the executors, or in case of insolvency.-*^ In a suit instituted by one of the next of kin against an administrator for a settlement of the estate in a court of chancery, all parsons entitled to a distributive share of the estate are necessary parties.*'' In a suit to recover a specific legacy, the other legatees are not necessary parties ; *^ hut in a suit by one claiming as residuary legatee, all are neces- sary parties.*** "Where the assets of an estate are undivided, all the distributees are necessary parties to a suit by the assignee of one of them to recover the amount of the interest assigned ; *'' but the assignors of a legacy who have disposed of all their inter- est are not necessaiy parties to a suit by the assignee. ^'^ When lands are devised, and after the death of the testator a patent issues to him t'.ierefor, the title descends to his heirs, and they are necessary parties to a suit by the devisee to recover the same.^i In actions to recover the marital portion, the heirs g 22 NECESSAKY AXD PROPER PARTIES. 58 must in all cases be made parties. ^'-^ When the question arises as to the lapse of a legacy, the residuary legatee should be made a party, and a debtor legatee when the question arises as to whether or not his debt was discharged by the gift of Ihe legacy.^-* The executors of a deceas^ed complainant are not necessary par ies to a bill of revivor when they have no interest in the subject-matter or event of the suit, even though they were directed by the will to prosecute it.°* 1 Wetter v. Haversliam, 60 Ga. 202; Hall i>. Allen, 31 Wis. 691; Coulter V. Stagg, 27 N. J. Eq. 306 ; Magers v. Edwards, 13 W. Va. 828; Moore v. Hegeman, 6 Hun, 291; Benjamin v. Dell, 11 Ired. 49; Carter v. Balfour, 19 Ala. 822. 2 Church v. I^elson, 35 Ohio St. 642; McCacken v. McCacken, 18 Ala, 576 ; Brown v. Klggin, 94 HI. 570. 3 McCosker v. Brady, 1 Barb. Ch. 343. 4 Bond ?'. Connelly, 8 Ga. 305. 5 Lee v. Chase, 58 Me. 435 ; Harwood r'. Maye, 8 Cal. 580 ; Saloy v. Chexnaider, 14 La. An. 567 ; Manning v. Manning, 61 Ga. 139 ; Gray v. Hays, 7 Humph. 588. 6 Olive V. Bumaforza, 31 N. J. Eq. 336. 7 Mahan v. Mahan, 7 Ben. 5bl. 8 Hale v. Darter, 5 Humph. 81 ; compare note, Denn v. Jones, Goxe, 133; Massie v. Donaldson, 8 Ohio, 379; Harwood v. Marye, 8 Cal. 580 ; Cunningham v. Ashley, 45 Cal. 491 ; contra, Guilford v. Love, 49 Tex. 733. 9 Alexander v. Perry, 4 Hump. 391 ; compare Heath v. Garrett, 50 Tex. 268. 10 Gibbs V. Holmes, 10 Rich. Eq. 484. 11 Loller V. Frost, 38 Tex. 211 ; Barrett v. Barrett, 31 Tex. 345 ; com- pare Cunningham v. Ashlej", 45 Cal. 403. 12 Salov V. Chexnaider, 14 La. An. 563 ; Cunningham v. Ashley, 45 Cal. 491 ; Harrison v. Kighter, 3 Stockt. Ch. 393 ; Dugger v. Ogelsby, 3 Bradw. 107 ; Duerson v. Alson, 27 Gratt. 250 ; Abraham v. Hall, 59 Ala. 391 ; Cook {'. Sigon, 54 Miss. 652. 13 Wright V. Evans, 10 S, C. Eq. 532. 14 Gable r. Andruss, 1 Green Ch. 74 ; Harrison v. Kighter, 3 Stockt. Ch. 391 ; M'Dowl v. Charles, 6 Johns. Ch. 134. 15 Abraham v. Hall, 59 Ala. 391. 16 Dozier?'. Dozier, 1 Dev. & B. Eq. 103; Byran v. Green, 3 Ired. Eq. 167 ; Alexander v. Quigley, 2 Duval, 401. 17 Thibodeaux v. Comeau, 30 La. An. 1119 ; Leonora r. Scott, 8 La. An. 460. 18 Rucket V. Johnson, 45 Tex. 550. 19 Estes ?•. Johnson, 10 Humph. 223; Wallace v. Nichols, 56 Ala. 323; Mersereau v. Ryerss, 3 N. Y. 263; contra. Telfair v. Stead, 2 Cranch, 407 ; compare Harwood r. I\rarye,8 Cal. 580: Cunningham v. Ashley, 45 Cal. 4!)3 ; see also Whitmore v. Johnson, 10 Humph. 610; O'Connor v. Carver, 12 HeisU. 436. 59 XECESSAKY AND PROPER PARTIES. g 22 20 Harwood v. Marye, 8 Cal. 580; Beall v. Taylor, 2 Gratt. 532; ilassie v. Donaldson, 8 Ohio, 380; compare Mersereau r. Rvtrss, 3 >'. Y. 262. 21 Abraham v. Hall, 5D Ala. .331. 22 Dusgsr ?'. Ogelsby, 3 Bradw. 107; compare McGonigal v. Colter, 32 Wis. 625. 23 Perry r. Seitz, 2 Duval, 123. 24 Hooper v. Royster. 1 Munf. 1.35 ; Baines v. Barnes. 64 Ala. 3S1. 25 Bethell r. Wilson, 1 Dev. & B. Eq. 610 ; compare Jones r. Lack- land, 2 Gratt. 8-5. 26 Potter v. Gardiner, 12 Wheat. 500 ; Caldwell v. Kinkead. 1 Mon. B. 228. 27 Alexander r. Fisher, 13 Ala. 377. 2S Elliott V. Warrmg, 5 3Ion. 339 ; compare Colvin r. Owens, 22 Ala. 191. 20 King r. Lawrence, 14 Wis. 240. 30 Harris v. Bryant, 83 N. C. 569. 31 Goode )•. Goode, 2 Murph. .336; Wisner v. Barnet, 4 Wash. 612 ; State V. Johnson, 8 Ired. 399 ; Silsbee v. Smith, 60 Barb. 372. 32 Archibald v. Means, 5 Ired. Eq. 232. 33 Jewell v. Jewell, 11 Rich. Eq. 321. 34 Suber v. Allen, 13 S. C. 317. 35 Brown v. Rickitts, 3 Johns. Ch. .5-53 ; compare Colbert ?-. Daniel, 32 Ala. 315. 36 Diverseyr. Johnson, 93 111. 5.55. 37 Browder v. Jackson, 3 Lea, 157 ; Gould v. Hayes, 19 Ala. 439. 38 Teague v. Corbett, 57 Ala. 537 ; Van Mater v. Sickler, 9 X. J. Eq. 4*4. 39 Bvnum v. Branch, 1 Murph. 132; compare Teague v. Corbett, 57 Ala. "537. 40 Baines v. Barnes, 64 Ala. .380. 41 Goode V. Goode, 2 Murph. 335 ; Shaw v. Shaw, 1 Murph. .3-34. 42 Morris )•. Morris, 58 Ala. 447; Dorsheimer v. Rorback. 23 X. J. Eq. 48 ; Jones v. Lackland, 2 Gratt. 84 ; compare Farr v. Hendnsks, 12 Gratt. 642. 43 Hutcherson r. Pigg, 8 Gratt. 22.3. 44 Phillips r. Threadglll, 37 Ala. 93. 45 Gable v. Andross, 1 Green Ch. 74 ; see also Gaines v. Hennen, 24 How. 565. 45 Van Mater v. Sickler, 9 X. J. Eq. 484 ; Sillings v. Beaugardner, 9 Gratt. 274 ; compare Roberts v. Johns, 10 Rich. 101. 47 Brown ?•. Ricketts, 3 Johns. Ch. 5-54 ; Da%-oue v. Fanning, 4 Johns. Ch. 202 ; compare Kincaid v. Rogers, 10 Humph. 8.3. 48 Vanderhoof v. Davenport, 2 Green Ch. 121 ; Davoue v. Fanning, 4 Johns. Ch. 202 ; Dehart v. Dehart, 2 Green Ch. 472 ; Nelson ?■. Page, 7 Gratt. 106; West r. Evans, 1 Del. Ch. 123; Osborne v. Taylor, 12 Gratt. 182 ; see also Dandridge v. Washington, 2 Peters, 372 ; Hucka bee V. Swoope, 20 Ala. 498. 49 Bogan v. Camp, 30 Ala. 231; compare Goodman v. Benham, 16 Ala. 625. ^23 >rECESSAEY AND PEOPEB PARTIES. 60 50 King V. Berry, 2 Green Ch. 53. 51 Cobb V. Stewart, 4 Met. 255. 52 Vasseur v. Dupre, 8 La. An. 488. 53 Brokaw v. Hudson, 27 N. J. Eq. 136. 54 Peer v. Cookerow. 14 N. J.Eq. 366. § 23. Who are necessary or proper parties in suits relat- ing to trust estates. — Generally, in suits brought by trustees in relation to trust funds, the cestui qui trust is a neces- sary party ;i if the object of the suit is to obtain possession of the fund by the trustee in order that he may execute the trust, and the rights of the cestui qui trust are in no way affected, they are not necessary parties. ^ If, however, a full investigation of the management of the fund is sought, the beneficiary is a proper if not necessary party. ^ "Where the trustee of a railroad company holding funds of the company in trust for creditors applies to the court for instructions as to the application of the fund, provided the beneficiaries are numerous, and some are unknown, they need not all be made parties.* Where the executor of a deceased trustee, holding under a will, applies to have a. trustee of the fund appointed, to whom petitioner may account, for an accounting, etc., all per- sons entitled to life estates and remainders under the original will should be made parties. & Plaintifi" owning certain patents brings suit against defendants averring that they are liable for certain tariffs by virtue of a license, and for account, transfers his interest to a trustee for certain purposes, which M^hen fulfilled, and the debts paid, the remaining interest is to be returned to the assignor. It is not improper that he should remain a party ; the ti-ustee also should be joined.*" When the subject-matter of a trust is in controversy, all the trustees should be made parties.'' Where the estate is conveyed to trustees jointly the estate vests in the survivor upon the death of one, and his heirs need not be made parties to a suit con- cerning the same.*^ In suits against trustees if the trustee represents the beneficiaries in all things relating to their com- mon interest in the trust property, the cestui qui trust are not necessary parties to a suit by a stranger to defeat the trust in 61 >-ECESSAKT A^-D PKOPEB PAETIES. ^ 23 ■whole or in part.^ As a general rule, however, in all suits either by or against the trustee respecting the trust property tlie cestui qui trust are necessary parties. i" When a decedent holding funds (money) in trust, sp2cifically bequeathes them, the legatee is not a necessary party to a suit for their recovery brought against the esecutor,ii nor are the heirs of the decedent neoessai'y parties to the proceeding. ^2 '^^hen title is held as a naked trust with only a limited power to convey, the heirs of a deceased beneficiaiy are necessary parties to a suit to recover the tmst property.^** In an action by a surety against his co- surety to e3tabli-.h a trust, and compel the latter from the proceedi of collaterals in his hands, to reimburse him for moneys expended, etc., the person to whom the money was paid is not a necessary party. ^* In an action by one of several cestui qui trust to declare and enforce an implied trust in rela- tion to land, all persons who claim an interest in the trust estate are proper parties.i^ In a suit to enforce the provisions of a trust deed the trustee is a proper party, but the mere naked title being in the trustee, and the parties beneficially interested being before the court, he is not an indispensable party. i** Persons whose interests in the trust property accrued prior to the execution of a deed of trust, and are recited therein, are not necessary parties to a bill to enforce the trust. ^^ In an action by. the assignee of a non-negotiable note to enforce its collec- tion, the assignor holds the legal title in trust for the assignee, and is a necessary party to the proceeding.^^ The assignor of property for the benefit of creditors is a necessary party to a suit brought by the cestui qui trust against the assignee for an account. 1^" Where the trust deed is made to a trustee for the payment of creditors in classes, creditors of the second class are not necessary parties to a suit by those of the first class for an account.2" So if the claims of the creditors have been paid they are not necessary parties to such proceeding. 21 When premises have been conveyed in trust by a debtor to secure his sureties from harm, it is error to decree a sale of the premises at the instance of a third person (creditor) without making the former creditor a party to the proceeding.^^ All the cred- Pakt:es-6 g 23 NECESSAEY AND PEOPEB PAKTIES. C2 itors secured by a deed of trust must be made parties to a suit by one of the same class for account of the trust fund.^^ When a creditor seeks to subject to the payment of his debt a fund which had been devised in trust to the use of his debtor who had been declared a bankrupt, and who had not scheduled his interest in the trust property, the other creditors are not neces- sary parties to the proceeding. 2* When the trustee named in the trust deed, and to whom power to convey the lands con- veyed is given (provided the note secured thereby is not paid) dies, the trustor is a necessary party to an original bill for the appointment of a new trustee, and if such trustor has con- veyed away his interest in the lands the purchaser is also a proper party.^o When the trustee holds in naked trust, and the beneficiaries are before the court, it is not material that the heirs of some of the deceased trustees are not parties. '-^"^ When land has been conveyed to a trustee to secure the payment of debts, the fact that the person named as trustee has not per- formed certain statutory requirements before proceeding to execute the trust does not divest the legal title to the premises in such manner as to warrant the court in proceeding to enforce the deed without making the trustee a party.^^ X. conveyed to Z. (named as his executor) by will certain funds to be by him held for the benefit of A. during her life, and to be paid from time to time in his discretion, and upon the event of her death to be divided among her children. In a suit by A. against the administrator of Z., for an account and payment of tlie legacy, it was held, the amount of the trust fund being uncertain, that a general account of the estate of the testator was necessary, and that an administrator de bonis non of his estate should be made a party, even though all the debts and legacies with the exception of that due the claimant had been paid ; if the amount of the trust fund had been certain or made certain by a settlement filed by Z. (the executor) , the rule might be difierent.^^ When the husband conveys the bare legal title to property to a trustee to be held by him for trustor's use, and to prevent the martial rights of his wife from attaching thereto, such trustee is a proper party to a suit for a divorce, an interest in such prop- 63 NECESSAET AM) PEOPER PARTIES. § 23 erty being claimed by complainant.^ In a suit by a surety against his principal to recover for a debt paid by the surety, and to subject lands of his principal alleg.d to have been con- veyed by him in secret trust, such trustee should be made a pai-ty to tlie proceeding.^o So also in a suit to enforce the col- lection of notes held in trust for the payment of debts, the trustee is a necessary party.^^ When it is sought to divest the interest of one who is a minor and married, in real premises the title of which is held in trust, it is error to proceed therein without making the trustee a party to the proceedings. =*2 Jq a suit to adjust the equities between the gi'antors of a trust deed upon the separate lands of each., and which had been paid off by one, the trustees named in the deed are not necessary parties. -^^ 1 Blake v. Allman, o Jones £q. 403; Haskell v. Codman.S :Met. 536 ; compare House r. Post, 31 Conn. 2-53 ; Gibbes v. Ry. Co. 13 S. C. 228. 2 3Iartin v. McRej'uolds, 6 Mich. 72 ; Adams v. Bradley, 12 Mich. 350. 3 Attv.-C4en. v. Parker, 126 Mass. 221 ; compare Woodsoa v. Per- kins, 5 Gratt. 352. 4 Cov ?•. Beckwith, 31 Barb. 340; see also Robinson v. Robinson, 11 Bush, 175. 5 Boiling V. Stokes, 7 Rich. 363. 6 Judson V. W. M. Co. 33 Conn. 463. 7 Sayre v. .Sayre, 17 X. J. Eq. 349 ; Judson v. W. M. Co. 33 Conn. 461 ; Carter r. Jones, 5 Ired. Eq. 200 ; Cassidv v. McDaniel, 8 Mon. B. .51=) ; Wakefield >-. Marr, 65 Me. Ul : McClennen v. McClennen. 65 Me. 500 ; Malin r. Malin, 2 Johns. Ch. 2:iS ; Phipps v. Tarpley, 24 Miss. 599. 8 McAllister v. Plant, 54 Miss. 117 ; see also Paul v. Fulton, 25 Mo. 157. 9 Kerrison v. Stewart, 93 U. S. 160 ; Pijidall v. Trevor, .30 Ark. 269 ; "Winslow r. Minn. & P. Ry. Co. 4 ilinn. 317; Campbell v. Watson, 8 Ohio St. .501. 10 Piatt V. Oliver, 2 McLean, 307 ; Hill v. Durand. .50 Wis. 3.59 ; Peti- tion of Lyman, 11 R. I. LSS ; Prewett v. Land, 7 Ga. .d-DS ; Benjamin v. Loughborough, .31 Ark. 210 ; McDonald v. Frazier, 43 How. Pr. 322. 11 King V. Lawrence, 14 Wis. 233. 12 Paul r. Fulton, 25 Mo. 164. 13 Cod. & Lex. Ry. Co. v. Bowler, 9 Bush, 43.5. 14 Rosenthal r. Sutton, .31 Ohio .St. 412. 15 Hall V. Harris, 11 Tex. .303; Goodwin v. Goodwin, 6,1 Mo. 621 ; Piatt ?'. Oliver, -i McLean, 27: Jenkins r. Frink, 'iO Cal. .SS7 ; see also Huffman v. Cartwrisrht, 44 Tex. 296; Pence v. Pence, 2 Beasl. 249; Hallesly v. Jackson, 66 111. 141. 16 Green v. Gaston, 56 Miss. 752. § 24 NECESSAEY AND PROPER PARTIES. 64 17 Suydam v, Dequinder, Har. (Ch.) 349, 18 Meyers v. Miller, 2 Wood. & M. 420; Stevens v. Swallows, 2 "Wood. & M. 379; compire Meyers r. Wing, Ohio St. .558; Grant v, Ludlow, 8 Ohio St. 2 ; Whitney v. 3IcKeuuey, 7 Johns. Ch. 145; Eld- ridge V. Turner, 11 Ala. 1055. 19 Guisse v. Beall, 3 Wis. 352. 20 Smith v. Turreutine, 8 Ired. Eq. 190. 21 Andrews v. Hobson, 23 Ala. '2»2. 22 Kendrick. v. Whitney, 28 Gratt. 647 ; see also Billups v. Sears, 5 Gratt. 38. 23 Murphy v. Jackson, 5 Jones Eq. 14; Rountree v. McKay, 6 Jones Eq. 88. 24 Bugely v. Robinson, 19 Ala. 410. 25 Holden v. Sticknej', 2 Mac. G. 141. 26 Xt. C. Bridge Co. ?•. Douglass, 12 Bush, 719 ; same efifect Gibbs v. G. etc. By. Co. 1.3 S. C. 240. 27 Gardner r. Brown, 21 Wall. 36. 28 Baby v. Ellison, 5 Ired. Eq. 268. 29 Wetmore v. Wetmore, 5 Oreg. 469 ; see also Van Duzer v. Van Duzer, 6 Paige, .367 ; Barker v. Dayton, 28 Wis. 378. 30 Kimball v. Greig, 47 Ala. 230. 31 Hill i\ Boyland, 40 Miss. 610, compare Jones v. Johnson, 10 Bush, 659. 32 O'Kara v. McConnell, 93 V. S. 150. 33 Briscoe v. Power, 85 111. 420. § 24. "Who are necessary or proper parties in suits by creditors, assignees, sureties, etc. — lu an action for an accounting all persons interested in obtaining the account slioulcl be made parties.^ A creditor who has transferred to a third T)erson collateral secureties held by him and belonging to his debtor, is a necessary party to a suit by the debtor against such third person to recover the same. 2 When defendants admit the indebtedness alleged, but show that a judgment creditor of plaintiff has a suit in aid of execution then pending against both plaintiff and defendant, it is error to render judg- ment for the amount admitted, until such judgment creditor is made a party or his rights determined.^ Where a number of persons appoint an agent for a common purpose, all must unite in an action for an account.* Where an equitable chose has been assigned, the assignors are not necessary parties to an action upon the same for an account. ^ In a procee^Jing by the United States as an ordinary creditor, to reach credits 65 NECESSABT A^■D PEOPEK PABTIES. ^ 24 of its debtor in the hands of a third person, and for an account, the original debtor of the United States is a necessary party.^ In a suit by one of several wards for an account against his guardian and sureties upon his official bond, all the other wards interested in the general fund must be made parties^ If the suit is against the administrators of the deceased oblig- oi's, the heirs of the decedents are not necessary parties.^ In a procseding against a partnership for an account, all partners are necessary parties ; ^ and persons who have obtained by fraudulent means firm assets are properly joined ; ^^ heirs of a deceased partner are also proper but not necessary parties." To a bill by a surety against his principal and counter sureties to enforce his exoneration, the creditor and a co-surety may properly be joined as plaintiffs. ^^ To a bill brought by a surety against a co-sui'ety for contribution, their common principal, or if he be dead his administrator, is a proper party. i^ All solvent sureties should be parties, but those who are insolvent need not be joined.i"^ When a surety has paid the debt he is entitled to an assignment of the securities held by the creditor, and in a bill to enforce his rights thereto and for substitution, the creditor need not be a party ; but if he has not paid the debt the creditor must be a party to such suit.^^ To a credit' or's bill all the joint judgment debtors are not necessary parties if it distinctly aj^pears that those not joined are insolvent and wholly destitute of property, ^^ or are not intei'ested in the i^rop- erty sought to be subjected to payment of the creditor's claim. ^' A corporation is a necessary party to a bill to declare its disso- lution and wind up its affairs.!^ If the object of a suit is to reach property of the debtor fraudulently conveyed, the grantee is a necessary party ; ^^ and if the property sought was owned by one of several debtors who conveys all his interest, and the conveyance is valid as between the parties thereto, neither a joint dtbtor,2" the grantor, his heirs ^^ (if he be deceased) , nor his personal representatives 22 need be made parties. "When X. makes a verbal contract with Z. (a judgment debtor), to con- vey him an interest in real estate, and puts him in possession thereof, Z. is a necessary party to a creditor's suit against X. to g 24 KECESSARY AND PROPER PARTIES. 66 subject the interest of Z. to the payment of their claims. '-^^ When the judgment debtor is dead his administrator should be made a part}' in a suit to reach property in the liands of the heirs. 21 If the executor is insolvent or has been removed, the legatees are necessary i^arties,^^ In suits relating to an insolv- ent's estate, his assignees must be parties. ^<5 So if a party become insolvent pending the suit, his assignee must be made a party. '^^ In a suit by the assignee to recover the property of the bankrupt, creditors are proper parties ; '^^ and when the in- solvent debtor seeks to recover an interest in property conveyed during the insolvency proceedings, his creditors are necessary parties. 2^ It is a general rule that where it is necessary to ad- judicate tlie rights of an assignee, the assignor, or if he be dead his personal representative, must be a party to the cause ; ^" but when the assignor has transferred all his interest, and the extent and validity of the assignment is not doubted or denied, he is not a necessary party. ^^ In an action by an assignee the mere fact that the defendant pleads an offset larger in amount than plaintiff's claim, that had accrued against the assignor prior to the assignment, is not sufficient reason for making the assignor a party.*^^ jn ^n action for damages for breach of contract, where no other person has acquired an interest therein, only parties to the contract should be made parties to the proceeding. *^^ If the subject-matter of the suit relates to a bond in which there are joint obligors, they all ought to be made parties. ^1 In a suit against the surviving obligors on an official bond, the personal representative of the deceased principal is not a necessary party ;^5 and when relief is sought against the administrator of a deceased obligor, the representatives of joint obligors who are also deceased and insolvent are not necessary. ^♦^ A., an insurance company, insured X. against loss from fire upon buildings which were subsequently destroyed by the negligence of Z., a railroad company. A. paid X. the amount covered by its policy, and Z. compromiseel and paid X. the amount of his loss. In a suit by A. against Z. to have the re- lease of X. to Z., eleclared fraudulent anel void as to it (A.) , the insured person X. is a proper party ; but in an action to recover G7 >t:cess^ky A2sD pbopeb paeties. § 24 tlie money, neither defendant is a necessary or proper party to a suit against tlie other. ^' When a policy is payable to " who- %-er may be concerned at time of loss," a mortgagee for full value of the property need not mate the mortgagor a party to an action to recover for the loss.^** In a suit upon a promissory note payable to several payees one of whom has been declared a bankrupt, the assignee and not the bankrupt payee is a proper party.^^ When a note is taken by one as commissioner, the beneficiaries of the fund are not necessary parties to a suit to recover upon the same.*" When the assignor has transferred all his interest in the chose in action, he is not a proper party to a suit thereon. *i But if the transfer is not absolute or is denied, he is a necessary party."*^ So if charged to, be fraudu- lent,*^ or if the note was assigned without indorsement.** The assignor of an account as collateral security is not a necessary party to a suit to collect the same.*^ An assignment by a cred- itor of a portion of a debt does not make the assignee a joint owner of the whole debt and a necessary p irty for its recovery. *s A mortgagee of land is not a proper party to an action for the recoveiy of money only, merely because the land has been at- tached by plaintiff.*^ In an action by A. against Z. upon his promise to pay for goods sold by A. to X., X. is not a necessary party.*^ In an action by a judgment creditor to compel a gar- nishee to pay over money of the judgment debtor, the latter is a proper party ;*^ and when relief is sought against a surety, his principal must be joined.^o As a general rule, it is only when two or more persons have an interest in or title to the property affected or the damages to be recovered that they can unite in an action.^i In an action for damages against a railroad company for negligence, an attorney who is to receive a certain amount of the sum recovered as compensa- tion for services is not a necessary party plaintiff ;^^ and generally an attorney from whom no relief or discovery is asked is an improper party to a bill in chancery. =^ An attorney in fact is not a trustee, and is not a necessaiy party to represent the rights of his principal,^* So generally a per- son who acts as the mere agent of another in a transaction is § 34 NECESSARY AND PEOPEE PAETIES. C8 not a proper party to a suit thereon unless he is charged with fraud. 5^ 1 Petrie v. Petrie, 7 Lans. 95 ; Keeler v. Keeler, 3 Stockt. Ch. 460 ; Dart V. Palmer, 1 Barb.< h. ; Hart r. Coffee, 4 Jones Eq. 322, 51 Bhoades?'. Booth, 14 Iowa, 576; compare H. &. G. Xav. Co. v. Diver, 2J Tex. 376 ; Hill v. Harris, 4 Bush, 450. 52 McDonald v. Chi. & X. AV. Ry. Co. 2G Iowa, 141. 53 Hopson r. Harrell, 56 Miss. 202; see also Crane v. Dem!:;g, 7 Conn. 3S7. 51 Powell T. Ross, 4 Cal. 197. 55 Lyon v. Tevis, 8 Iowa, 81; Avers v. Wright, 8 Ired. Eq. 229; Watson ?'. Cobnrn, 2 Dev. & B. Eq. 357 ; compare Bateau v. Bernard, 3 Blatchf. 247 ; Speiss v. Sharp, 63 Ga. 166. I 25, Wiio are necessary or proper parties in Guits by co-pcirtners, corporations, etc. —It is a general rule that in all suits relating to a partaersliip, all the partners are necessary parties, either as plaintiff or defendant,^ and where the interest of a deceased partner is involved. Ids personal representative should he made a party.2 In a suit in equity by a portion of the members of a firm against a co-partner for an accounting of firm funds, all partners must be parties;^ but a dormant § 25 NECESSAKY AND PEOPEB PARTIES. 70 partner who has never been known in the particular transac- tion need not be made a party.* So co-partners who had sold out all interest in the business before the matter in controversy arose need not bo joined.^ X. induced A., his partner, to sell the firm property at an inadequate price to himself, Q., E., and S. In a suit by A. against X. to settle the affairs of the old firm on the theory that the sale had been induced by fraud, and to charge X. wit*li the fair value of the property, where no complicity or knowledge was charged on the part of Q., E., and S., and no relief asked against them, they are not necessary parties.^ The assignee of a bankrupt partner is a necessary party to a suit brought to recover a debt due the firm at the time of his bankruptcy, when such assignee takes a beneficial interest in the partnership assets as a trustee for the separate creditors of the bankrupt partner under the proceedings in bankruptcy.''^ So in Louisiana in an action for the recovery of iDoney by a surviving partner, the administrator of the de- ceased co-partner must be joined.^ When property of a part- nership has come to the hands of the heir of a deceased partner, the administrator of the estate of such heir is a proper party in a suit by the surviving partner to have the trust declared.^ In a suit by the administrator of a deceased partner to have an account of partnership afiiiirs, the heir is not a necessary party. ^^^ A member of a firm whose stock of goods was sold and the proceeds paid into court for distribu- tion is a x^roper party to a money rule against the sheriff there- for.ii "Where the sole object of the bill is to have the property of one partner (alleged to have been fraudulently conveyed) applied to payment of a judgment against the firm, and no fraud or concealment is charged against the co-partners, dis- covery sought, or relief asked, they are not necessaiy parties. ^^ In a suit to set aside a conveyance of partnei-ship property to a trustee, the cestui qui trust is a necessaiy party. ^' In an action for dissolution of the co-partnei'ship, a third person to whom the interest of one partner has been sold is a necessary party in order that an account may be had.^* In a suit upon a bond given to a retiring partner, and conditioned for payment of the I 71 >'EC::SSAI1Y A>1> PROPER PARTIES. ^ 25 a firm debts for a breech thereof, creditors of the firm are proper parties.^^ 1 Parsons v. Howard, 2 \Voods, 3 ; Bank •?-. Carrollton liy. 11 Wall. ->; McKaig v. Hebb, 42 Md. 231; Dunham v. Bischof, 47 Ind. 214; .'t'slphal V. Heiiuej'. 49 Iowa, 543; see Carson i\ Kobertsou, Chase's 1 1 'C. 498. 2 Burchard v. Boyce, 21 Ga. 12. 3 Derby v. Gage, 33 111. 27 ; Duck v. Abbott, 24 Ind. 340. 4 Hawley v. Cramer, 4 Cowen, 721 ; Bank of St. Marvs v. St. John, l-> Ala. 621. 5 Vance v. Blair, 13 Ohio, 531. 6 Palmer v. Stevens, 100 Mass. 431 ; and compare Ilirsch r. Adler, JI Ark. 333. 7 Coe V. Whitbeck, 11 Paige, 44. 8 Lockhart v. Harrell, 6 La. An. .532. 9 McGuire v. Ramsey, 9 Ark. 519; and see Vose v. Philbrook, 3 Story, .337. 10 Moore v. Huntington, 17 Wall. 417; and compare McCaskill v. Lancashire, 83 X. C. 398 ; but see Jaclcson v. King, 8 Leigh, 63J. 11 Wynne v. Millers, 61 Ga. 343. 12 Randolph v. Daly, 16 X. J. Eq. 315. 13 Day r. Wetherby, 23 Wis. 370. 14 Webb V. Helion, 3 Rob. (La.) 625 ; Glvnn v. Rhetteplace, 2G ^Iich. -'•■' i. 15 Wilson V. Stilwell, 9 Ohio St. 470. § 25 a. Corporations. — Where the rights and interests of a corporation are involved in a suit, it is essential that all persons in interest be made parties or some satisfactory reason for the omission be shown. i'' When a body has ceased to exist as a cor- poration and becomes disorganized, it cannot be made a party to a suit.i^ So when the assignor of shares of a corporation asks re- lief against future assessments, and that the assignee indemnify him therefrom, the corporation is not a necessary party to the proceedings. IS When stockholders arc not numerous they may be made parties, but if numerous or out of the jurisdiction, and their rights will be represented without them, they need not be joined. ^'^ In a bill by creditors to enforce the liability of stoclvholders for the debts of a corporation, an assignee of the corporation who holds its assets for the payment of its debts is a necessary party. 20 If the corporate property is exhausted, and the bill is filed for the mere purpose of enforc- 2 25 a NEOESSAKT AND PBOPER PAETIES. 72 ing the personal liability of the stockholders, the corporation need not bo made a party; but if the object of tlie bill is to divest the corporation of property, or of its rights or privi- leges, on the ground that it has forfeited its clmrter or surrendered its franchises, it must be joined.-^ Yv'hcn the stockholders bring suit against the directors of a corporation to recover damages for waste and loss of corporate assets caused by negligence of the defendant, the corporation should be made a party; 22 and where the object of tlic suit is to recover funds alleged to have been fraudulently oljtained from the corporation, the directors should be made parties. ^^ "When it is sought to compel a defendant corxwration to account for collateral securities of a third person held by it, and to apply the surplus after the satisfaction of its debt to payment of claim of plaintiff, such third person is a necessary party to the proceedings. 2* "Wlien the owner of shares of stock of a corpo- ration brings suit against it to recover a certain number of shares, alleging a transfer by the corporation to a third person upon presentation of his certificate accompanied by a transfer under a forged power of attorney, it was held such third per- son was not a necessary party to the proceeding.^ When two corporations are consolidated, and the new corporation assumes the pa\Tnent of the obligations of the original corporation, the directors of the new corporation are neither necessarj- nor proper parties to a suit to enforce a liability of one of such consolidating corporations. '■^''" In a proceeding to dissolve and wind up a corporation the stockliolders are necessary parties.''^^ 16 "Wescott r. Minn. Mining- Co. 23 Mich. 151 ,* Lyman v. Bonnej-, 101 Mass. 563 ; see Young v. Moses, 53 Ga. G28. 17 \\' allaco v. Board of Trustees, 84 N". C. 164 ; Jennings v. Hiiiklp, 81 111. 184 ; Thomas v. Morg-an Co. 5J 111. 480. 18 Kellogs V. Stockwell, 75 111. 73. 19 Rome Town Co. v. Xagle, 58 Ga. 474; Henrj-?'. Jackson, 37 Vt. 431 ; Dana v. Brown, 1 Marsli. J. J. 306; Mandeviile «;. E.iggs, 2 Peters, 487 ; Angel v. Lawton. 7G X. Y. 542. 20 Harper v. Un^on Manuf. Co. 100 III. 230. 21 trickles V. Rochester Cv. Bank, 11 Paige, 126 ; and sec Dinsmore V. A. tfe P. Ry. Co. 46 How. Pr. lUo ; compare also W. A. «fc G. Ry. Co V. A. & W. Ry. Co. 19 Gratt. 5!)3. 22 Hand v. Atlantic Xat. Banlc 55 How. Pr. 231. 23 Hughes v. McMurray, 6 Phila. 200. 73 NECESSARY AND PROPER PARTIES. \ 26 ■1\ Wilson V. City Bank, 3 Sum. 42:J. 2o Pratt r. B. & A. Ry. Co. 126 Mass. -MS ; see also Telegraph Co. v. Davenport, 97 U. S. ;172. '2G Chase r. Vanderbilt, 62 N. V. ;il3 ; compare Tyson v. Mahone. 1 Hughes, ».3. 27 Chestnut v. Pennell, 92 111. 6.i ; Cone v. Hamilton, 102 Mass. 'X,. \ 26. Who are necessary or proper parties in snits relating to land and land titles. — It is the f,^t'neral rule in equity that in suits relating to land all persons known to have an interest therein should be made parties. ^ Persons benefic- ially interested in lands, the subject-matter of the suit should be joined as parties thereto.- Thus, when lands were held by a deceased partner in trust for the firm, his heirs were held to be proper parties to a suit for a conveyance, by a person claiming titl3 derived from the firm.^ The assignor of a bond for title is not a necessaiy party to an action for a conveyance ; * but the vendor of an equitable right to land should be made a party to such suit.^ Generally all persons who acquire an interest in the premises from the grantor subsequent to the execution of the contract to convey are necessary parties to a suit for the speci- fic performance of the contract. ^ If the widow of a deceased vendor claims dower in the premises she is properly joined. "^ His heirs and devisees *^ may also be made parties. The pur- chaser, or in case of his death, his heirs, should be made parties to a suit by his assignee, when only an equitable interest in the contract has been transferred by the assignment.^ When both the vendor and vendee are deceased, and the administrator of the vendor seeks to enforce the contract, the administrator and heirs of the vendee are necessary parties.^" If the suit be against the heirs of the vendor to enforce performance of the contract, those heirs who have already conveyed in pursuance of the contract need not be made parties ; ^^ but his adminis- trator should be made a party, ^- if the deed conveying the premises to the vendor was destroyed without being recorded, his vendor is properly joined ; ^^ but a person claiming through the administrator need not be made a party. i* When the legal title is held by a trustee he should be made a party. ^^ and if the suit be on account of a contract entered into in his character as P.\RTIES — 7 2 26 NECESSARY AND PROPER PARTIES. 74 trustee, and on behalf of the trust estate, as a rule the cestui qui tiiist should be joined;*'' but a person named in the con- tract merely as an agent is not properly made a party.*' "When a contract is sought to be reformed on the ground of mistake, all persons interested should be made parties to the suit. *** If a mis- description running through the deeds of several prior grantors is sought to be corrected, such grantors, or, if dead, their heirs, should be made parties.*^ If the grantee has sold a portion of the premises thusmisdescribed, and followed the misdescription in his conveyance, he should in seeking relief from his grantor make such grantee a party ; 20 but a county recorder who cor- rectly copied the deed of record is not a proper party to the suit.^* So if a grantor convey all his interest in the premises to two grantees but makes a mistake as to the interest of each he is not a necessary party to a bill to correct the mistake. 22 No rule can be established as to who are necessary or proper parties in a suit to rescind a contract that will be applicable in all cases, but generally those only who have an interest in the contract, or who would be prejudiced by the granting of the motion need be joined. '■^ When a conveyance is sought to be set aside on the ground that it is fraudulent as to creditors, the grantor is prop- erly made a party ; ^^ but if he be dead his administrator is not a necessary party.^a The grantees named in a conveyance should be parties to a suit to rescind the same whether fraud is charged or not ; ^^ but those grantees who have conveyed their interests in the premises need not be joined. ^^ So if the ven- dee die pending suit, his administrator need not be made a party; 28 the heirs of the grantor are not necessary parties,''^" but the heirs of the grantee should be joined.^" If several con- veyances of the same premises are sought to be set aside as fraudulent, the heirs of an intermediate grantor who conveyed all his interest with covenants of warranty are not necessary parties unless assets from their ancestor had or could come into their hands.^* Where mortgages, deeds of trust, or other liens upon land are sought to be set aside and vacated, such lien- holders thereby secured should be made parties to theproceed- ing.^2 So also when their rights were acquired through a 75 XECESS.VET AXD PROPER PARTIES. § 26 fraudulent grantee they should be made parties to a suit to cancel the conveyance to such grantee.^^ A judgment debtor after a return of nulla bona is not a necessary party to a suit to set aside a conveyance of his lands alleged to be fraudulent, the conveyance being good as against him, and conveying all his interest.^* In a suit by a purchaser at execution sale to dis- possess the husband of the lands of the wife , she should be a party.^^ In suits relating to the homestead brought by the widow, the heir is a proper party.^^ The wife also is a proper party to all suits relating to the homestead i)roparty, but the presumption of homesteads does not extend to a tract of land adjoining that upon which defendant resides, so as to make his wife a necessary party to a suit to recover the tract.^" So in a suit brought by the widow to enforce her claim to dower in lands fraudulently conveyed by her husband in order to defeat her rights therein, the heir is a propar party, ^*^ If the widow in such suit seeks also to recover rents and profits, all subsequent purchasers should be made parties. ^'* When suit is brought by a trustee for the benefit of creditors to subject lands of the debtor to the payment of his debts, all the creditors need not be made parties.*" If the lands sought to be subjected are alleged to have been purchased by the debtor in the name of a third person, he is a necessary party, but the vendor should not be joined.*^ A bona fide purchaser of the debtor's interest in the lands is a necessary party.*^ So is a donee. *3 Where a judgment debtor has conveyed with covenants of warranty he is an indispenable party.** Fraudulent grantees should be joined.*^ And where the bill is tiled against one surety to sub- ject his lands to the payment of his principal's debt, all the co-sureties should be made parties, *6 If the bill be filed against a partnership, the heirs of a deceased partner are not necessary parties;*' but his representatives maybe joined,**^ and gener- ally the personal representatives of a deceased debtor are proper parties to the suit.*^ In a suit by the administrator c/e bonis ■non to subject lands sold by his predecessor to payment of the purchase-money, the heirs at law are proper parties.^" In a proceeding to set aside a final settlement, and subject the real jj 26 NECESSARY AND PROPER PARTIES. 76 estate of the decedent to the payment of bis debts bis ^\idow and heirs should be made parties. ^^ When the surety of a bond given for the principal price of land joays the amount due, and takes an assignment thereof, he may proceed to enforce his lien, and subject the land to payment of the same without making his assignor a party to the i^roceeding.^^ In an action of eject- ment when title is deraigned from a common grantor, plaintiff claiming from the heirs of B., and defendant from B. himself, which latter conveyance misdescribed the premises ; this fact, together with the allegation of knowledge on the part of plain tifl at the time of his purchase were properly set up as an equitable defense without making the heirs parties.^'' In an action by the purchaser of the husband's interest in his wife's lands, to dis- possess the husband of the same, the wife must be made a party.^^ The occupant who withholds the possession should be made a party ; ^^ but where an undivided interest in land is claimed, an occupant who is in possession claiming under other intei'ests, and not under that sued for. and who does not inter- fere with the right of plaintiff should not be joined. ^^ And generally when the intei-est of a person would only be collater- ally affected by the judgment he need not be a party. ^^ In an action to quiet title all persons necessary to a complete set- tlement of the question may properly be made parties ; ^^ but an executor merely as such, Avho claims no interest need not be made a party,^^ nor the holder of an unrecorded deed.*"" When property was conveyed to a trustee for the benefit of a married woman and her children by her then husband, the wife gave her note for the purchase-money, and the trustee executed a moit- gage to secure the same, the mortgage was foreclosed and prem- ises sold, the wife and her children claiming the premises, the purchaser brought suit to quiet title, held that neither the repre- sentative of her husband, nor a new trustee (the former one being dead) need be made parties. ^^ So where a cestui qui &ust does not desii'e to avoid the conveyance, he need not be made a party to a suit by a purchaser from the trustee to ciuiet title. •'^ 1 Mitchell V. Peters, 18 Iowa, 120 : Irvin v. Smith, 17 Ohio, 238 ; see Walker v. Pierce, 38 Vt. 97 ; Baldwin v. Caufleld, 26 Miun. 44 ; Steele 77 >-ECESSAEY AND PKOPEE PAETIES. § 26 ?'. Tavlor, 1 Minn. 278 ; Agard v. Valencia, 39 Cal. 296 ; Brodie v. 8kel- t ju, 11 Ark. 121 ; Cone v. Hamilton, 102 Mass. 56. 2 Mcllvoy V. Alsop, 43 INIiss. 372 ; Hoxie 7'. Carr, 1 Sum. 176 ; Peer v. Cookeron, 14 X. J. Eq. 363; compare Burliugamt i: Hobbs, 12 (Ti-uy, ■i6d ; Colwell ?■. Miles, 2 Del. Ch. 117 ; Roach v. Hix, 57 Ala. 577 ; «kiles i'.Switzer, 11 111. 5:«. 3 Ind. Rot. Co. v. Bates, 14 Ind. 9; compare Piatt v. Vattieu, 1 McLean, 146. 4 Anderson v. Wells, 6 Ben. 542 ; and compare Salmon v. Salmon, ^JO Cal. 301. 5 Stewart ?•. Hutton. 3 Marsh. J. J. 179; Eureka M. Co. v. W. Manuf. Co. 47 Vt. 430 ; Trunbie v. Boothby, 14 Ohio, 115. G Express Co. r. Railroad Co. 99 U. S. 191 ; generally Sutton v. Hay- don, G2 Mo. 107 ; Fullerton v. McCurdy, 4 Lans. i:>4 ; Morris v. Hoyt, 11 Mich. 17 ; Oliver r. Dix, 1 Dev. & B. Eq. 15S ; Bendt r. Wetmore, 2 Green C. E. 250 ; Agard v. Valencia. 39 Cal. 296 ; Fagaii v. Barnes, 14 Fla. 57 ; Bacot v. Wetmore. 17 N. J. Eq. 2.55 : Browne v. Bitter, 11 Green C. E. 45^; French v. Shoemaker, 14 Wall. 315; Lambert r. JSTanny, 2 Munf. 196 ; Trimble v. Boothby, 14 Ohio, 119. 7 Armstrong v. Wvandotte B. Co. 1 McCahon, 170; see Cock v. Evans, 9 Yerg, 234 ; Hill v. Smith, 32 N. J. Eq. 473. 8 Moore v. Murrah, 40 Ala. 575; Hodges v. Hodges, 2 Dev. & B. Eq. 72; Cock v. Evans, 9 Yerg. 2:17; Mitchell r. fechell,49 Miss. 126; Keggus V. Allcorn, 9 Tex. 33 ; Craig v. Johnson, 3 Marsh. J. J. 572. 9 Knott V. Steppens, 3 Oreg. 269 ; generallv Muller v. Bear. 3 Paige, 46S ; Eur>jka Marble Co. r. W. Manuf. Co. 47 Vt. 448 ; Hoover r. Don- ally, 3 Hen. & M. .316; Alexander r. Hoffman, 70 111. 114; Bradley •?-. Morgan, 2 Marsh. A. K. 370 ; compare Currier r. Howard, 14 Gray, 511 ; Xoonan v. Orton, 4 Wis. 335 ; Allison v. Shilling, 27 Tex. 4-50 ; aud see May V. Sullivan, 8 Ga. 541 ; Longworth v. Taylor, 1 McLean, 395. 10 Anshutz Appeal, 34 Pa. St. 376. 11 Barnard v. Macy, 11 Ind. 538 ; and see Soper v. Kipp, 5 ]Nr. J. Eq. 333. 12 Caifax v. Colfax, 32 X. J. Eq. 207 ; Hill v. Smith, S2 X. J. Eq. 473 ; Putter.sou v. Copeland, 52 How. Pr. 404, 13 Callihan v. Hall, 4 W. Va. 531. 14 Patterson f, Copeland, 52 How. Pr, 464. 15 Morrow ?■. Lawrence, 7 Wis. 574 ; Sutton v. Hayden, 62 Mo. 115 ; and see Carter v. Thompson, 41 Ala. 3/9; Anshutz Appeal, M Pa. St. 375 ; compare Bull v. Bell, 4 Wis. 75 ; Champlin v. Parish, 3 Edw. Cb. 614 ; Eastern Ex. Co. v. Ry. Co. 99 U. S. 191. 16 Trustees r. Gleason, 15 Fla. 399 ; Gaytes v. Franklin Sav. Bank, 8o 111. 257 ; White v. Watkin, 23 Mo. 429 ; compare Gibbes v. Black- well, 37 111. 196 ; Goddin v, Vaughn, 14 Gratt. 117. 17 Roby V. Ccssett, 73 111. 640 ; Daphney v. Hall, 20 Ind. 264. IS Hellman v. Schneider, 75 111. 423 ; and see Conkling v. Davis, 53 How. Pa. 40 J ; generally Moore v. Munn. 6J 111. 591 ; Shackelford v. BaIlock,34 Ala.419. 19 Flanders ?•. McClauahan, 24 Iowa, 486. 20 McLennan v. Johnston, 60 111. 307. 21 King V. Bales, 44 Ind. 221. 22 Briegel v. Moeller, 82 111. 2.57. § 26 NECESSARY ASH PROPER PARTIES. 78 23 Beach v. Dennis, 47 Ala. 264 ; generally Stockmeyer v. Weid- ner, 32 La. An. 107 ; Ralston v. Lahee, 8 Iowa, 23 ; Gossett v. Kent, 19 Ark. 603; Carson v. Robertson, Chase Dec. 475; Wade i. Rusher, 4 Bosw. 544 ; Cooley v. Scarlett, 36 111. 317. 24 Potter v. Phillips, 44 Iowa. 356; see also Taylor v. Webb, 54 Miss. 37. 25 Stockard v. Pinkard, 6 Humph. 121; Mayberry v. McClung, 51 Mo. 259 ; Jackman v. Robinson, 64 Mo. 290 ; compare Taylor v. Webb, 54 Miss. 36 ; Danner v. Danner, 30 N. J. Eq. 63 ; Smith ?-. Grim, 26 Pa. St. 96 ; Dockrav v. Mason, 5S Me. 180 ; Hall v. James, 75 Va. 114 ; con- tra, Boggs V. McCoy, 15 W. Va. 346. 26 Audibon Co. v. Emigrant Co. 40 Iowa, 465; Smith v. Loda, 5 Marsh. J. J. 7 ; Candee v. Burke, 1 Hun, 546 ; Bank r. Harris, 81 X. C. 207 ; Wickliflfe v. Lee, 4 Dana, 3:? ; Boggs v. Merced M. Co. 14 Cal. 355 ; Dearmond v. Dearmond, 10 Ind. 191. 27 Jackman v. Robinson, 64 Mo. 292 ; see Dearmond v. Dearmond, 10 Ind. 191. 23 McCutchen r. Pique, 4 Heisk. 565 ; compare Your.g v. Bilder- back, 2 Greene, 206 ; Romouse v. Hendnckson, 24 N. J. Eq. 2.J3. 29 Hall V. James, 75 Va. 114 ; McCutchen v. Pique, 4 Heisk. 5GD. 30 McCutchen v. Pique, 4 Heisk. 569. 31 Craig v. Smith, 94 111. 473 ; compare Williams v. Wilson, 1 Dana, 159 ; Dinwiddle v. Kelley, 46 Ind. 393. 32 DunTilin Co. v. Clark, 51 Mo. 62; and see Tichenor v. Allen, 13 Gratt. 30 ; Probasco v. Probasco, 30 N. J. Eq. 63 ; generally Trustees v, Brauer, 71 111. 546 ; Wilburn v. Shofiford, 4 Sneed, 700 ; Scanlan v. Cobb, 85 111. 296. 33 Whittemore v. Cowell, 7 Allen, 448; generally Miller v. Jami- son, 24 N. J. Eq. 42 ; Radcliffe v. Noyes, 43 111. 319 ; Probasco v. Pro- basco, 30 N. J. Eq. 63 ; compare Carson v. Robertson, Chase Dec. 4'jii. 34 Taylor v. Webb, 54 N. Y. 36 ; Fox v. Moyer, 54 X. Y. 125 ; but r,co Miltenberger v. Weems, 31 La. An. 259. 35 Cecil r. Smith, 81 N. C. 286; compare Williamson v. Paxton, IS Gratt. 489 ; see generally Baldwin v. Thompson, 15 Iowa. 50!. 36 Showers v. Robinson, 43 Mich. 582; Palmer v. Blair, 25 Iowa, 231. 37 Bunce v. Bidwell, 43 Mich. 543. 38 Gilson v. Hutchinson, 120 Mass. 29. 39 Dick V. Doughten, 1 Del. Ch. 321 ; and see Morse v. Thorsell, 78 111. 600 ; Blair v. Thompson, 11 Gratt. 441. 40 Robinson v. Robinson, 11 Bush, 177. 41 Bronsema v. Rind, 2 La. An. 959 ; but compare Logan v. Hale, 42 Cal. 645. 42 Lt. Street Bridge Co. v. Bannon, 47 Md. 141 ; Taylor r. Shindle, 2 Gratt. 44 ; Bryant v. Young, 21 Ala. 265. 43 Sayers v. Wall, 2G Gratt. 355. 44 Shear 1'. Campbell, 4 Scam. 426; compare generally. Hall v. James, 75 Va. 114. 45 Henderson ?•. Henderson, 9 Gratt. 394 ; Bryant v. Young, 21 Ala. 265 ; see Price v. Thrash 30 Gratt. 515. 46 Hall V. James, 75 Va. 114. 47 McCaskill v. Lancashire, 83 N. C. 399. 79 KECESSAKY AXD PROPEB PARTIES. § 27 43 Jackson v. King, S Leigh, 689. -D McDowell V. Cochran. 11 111. 32; Pharis v. Lc-ac'.inm!), •:d Ala. 675; Buford v. liawling. 5 Dana, 284. 50 Wallace v. Nichols, 53 Ala. 323. 51 Heilkamp r. Berdenstein, 3 Mo. App. 453; Elliott r. Warring, 5 Mon. 240. 52 Oruohundro v. Heuson, 26 Gratt. oil. 53 Lestrado ?'. Barth, 19 Cal. 673 ; compare Davis t'. I1;>sc^vc It. G3 Tgx. 314 ; York r. Cartweight, 42 Tex. 141. 54 Cecil V. Smith, 81 IT. C. 235. 55 Hawkins r. Boicher t, 23 Cal. 535 ; Hendricks v. Ila::so:! , 42 Mich. 104. 5G Waring v. Crow, 11 Cal. :367. 57 Dnpout V. Davis, 35 Wis. 640 ; and see Bartlett v. Borden, 13 Bush, 45. 53 Beckwith v. Darget, 18 Iowa, 303 ; Handsu v. McClanuhan, 24 Iowa. 487 ; Baldwin v. Caufield, 26 Minn. 53 ; St. Jo. Mauf. Co. v. Dag- gett, 84 111. 5.57 ; Peralta v. Simon, 5 Cal. 313. 53 Meriweather v. Hite, 2 Marsh. J. J. 182. 69 Clark v. Connor, 23 Iowa, 311. 61 Howards v. Da\'ls, 6 Tex. 175. 62 Gridley v. Wynant, 23 How. 501. § 27. "Who arc necessary or proper parties i:: suits to enforce liens. — Wiien several persons hold lieus upon the same property they may properly be made parties to a suit by cue of their number to enforce his rights.^ When one joint vendor of land is dead his representatives are necessary parties to a bill by the survivor to enforce payment of the purchase price of land.^ All holders of notes executed to cover the pur- chase price of land should be made parties to a suit by the holder of one of such notes to enforce his lien against the premises conveyed.^ The vendee or his representatives may be parties to a suit by the vendor against a purchaser to re- cover the balance of the purchase price.'* The widow of deceased vendee is a proper party when the suit is brought against his estate ^ to a bill by the aelministrator of the deceased vendor to enforce payment of the purchase price the heirs are necessary parties.** The heirs of the deceased ve-nd^e should also be joined.' When the vendee has conveyeel all interest he need not be made a party;" but Lis sub-vendees should be joined. ** Encumbrancers are proper but not necessary parties § 27 XECESSAEY AND PKOPEB PAETIES. 80 to the suit.^" The vendee has the right to have claimants of an outstanding title made parties to a suit by an insolvent vendor ; ^^ but a mere agent of defendant need not be made a party.i- In proceedings to foreclose a mechanic's lien the owner of the premises is the only necessary party defendant. i>* "When no personal judgment is demanded the owner Avho has transferred his interest subsequently to the contract for labor or materials is not a necessary party, i'* A contractor ^^ or sub- contractor is a proper party to the action, but a mere agent need not be joined,^'' nor need a prior lienholder be made a party.^^ "Where laborers are employed in cutting and hauling logs they have a lien thereon for sei-vices, and if employed by the contractor they need not make the owner a party to a suit to enforce the lien.^^ So far as mere legal rights are con- cerned upon a bill of foreclosure the only proper parties to the suit are the mortgagor and mortgagee, and those who have acquired rights under them subsequently to the mortgage.'** One who claims adversely to the mortgagor, and prior to the mortgage, should not be made a party for the purpose of try- ing his title. ■'^" X. made a note to Z., who transferred same to A., and secured by mortgage, in suit by A. to foreclose the same, and for judgment against botli X. and Z. for deficiency they were properly joined as parties ;'^i but where X. mort- gages his land to A. to secure the note of Z. in a suit by A. to foreclose the mortgage, no personal judgment being demanded, Z. is not a necessary party. '-^^ ^g ^ rule the mortgagor should be made a party to foreclosure suit ; ^^ but if subsequently to e date of mortgage he has conveyed all his interest in the ortgaged premises, and no personal judgment is asked against him, he is not a necessary party."^* The wife of the mortgagor is not a necessary party in an action to foreclose a mortgage executed by the husband at the time of purchase to secure the purchase price. ^^ "When it is sought to foreclose the hemestead right the wife should be made a party. ^^ So where the Avife joins with the husband in executing the mortgage she is a necessary party to a foreclosure suit in order to bar her claim to dower ; "-^^ if she did not join in the mortgage she is a proper i^arty to the 81 XECESSAET AN1) PBOPEB PAETIES. § 27 suit. 28 The mortgagee is a necessary party when he has assigned only an equitable interest in the mortgage debt and security ; ^^ but if the assignment is absolute, and no interest remains in the mortgagee, he need not be made a party ; '" if he guarantees payment of the debt he is properly made a party.^^ When a mortgage is given to secure a firm debt all the partners should be parties to a suit to foreclose the same, although the mortgage was taken in the name of one partner,^- unLss he holds as trustee for the firm."^ When a suit is brought by a cestui que trust to foreclose a mortgage given for his benefit to a trustee, such trustee should be made a party.^^ When a trustee is interposed between a lender and borrower of money merely to enable the lender to obtain payment through the exercise by the trustee of powers conferred upon him by a mortgage or deed of trust, and the trustee can only be called upon in case of default on the part of the grantor in perform- ing the conditions of the instrument, both trustee and cestui que trust must be made parties. ^^ When a trustee executes a mortgage upon the trust estate, the cestui que trust should be made a j^arty to a suit to foreclose the same.^^" and when a mortgage is made to a trustee the cesfuis should be joined in the foreclosure suit.^' The representative of a deceased mort- gagor is not a necessary party to a foreclosure suit,^" if the decedent h^ conveyed all interestTin the mortgaged premises, and no denciency is demanded against his estate ;^'' but if a deficiency is sought against the estate the administrator should be joined. •*" The administrator of a deceased mortgagee should bo a party.-^i The heir also of the mortgagor must be joined ; -^^ so if the mortgagor die after suit commenced, and before judgment,^-* the heu* of a deceased mortgagee is not a neces- sary party complainant,** nor need the heirs of a subsequent mortgagee be joined.*^ Persons holehng judgment on attach- ment liens upon the mortgagee! premises are properly made parties ; '** and generally both prior *'' and subsequent ^^ encum- brancers are proper, although not necessary parties. When prior encumbrancers are maelc parties, it is only for the pur- pose of liquidating the amount of their claims, and paying u^ \ 27 >'ECESSAEY AND PROPER PARTIES. 82 them out of the proceeds of the sale. Purchasers of the mort- gaged premises deriving title from the mortgagor subsequently to the dat3 of the mortgage are necessary parties ; -^^ but mesne purchasers who claim no interest in the premises need not be joiucd.s" So also the owner of the equity of redemption must made a j)arty;»i but persons who acquire interests in the mortgaged premises after suit commenced and lispendens filed arc pendente Hie purchasers, and need not be parties to the foreclosure suit.S'-^ 1 Camion ?>. ;^^cDaniel, 46 Tex. .314 ; generally Hinchman r. Bal- lard, 7 W. Va. 157; Pugh v. Bond, 9 Ga. 326; Averj- r. Patten, 7 Johns. Cli. 211; and see Wingard v. Banning, 39 Cal. 548; Smith v. Lytle, 27 Minn. 189; compare Marling •?'. Eobrecht, 13 AV. Va. 443; Hoffman ?•. Shields, 4 Wa. Va. 490 ; Ripperdou v. Cozine, 8 Mou. B. 465 ; Ferris v. Dickerson, 47 Ind. 382. 2 Stevenson v. Maters, 67 111. 131. 3 Jenkins r. Smith, 4 Met. (Ky.) S84. 4 Duval V. Bibb, 4 Har. & McH. 113 ; and see Black ?•. Rav, 1 Dev. & B. Eq. 443 ; Jackson v. Hill, 39 Tex. 495 ; contra, Edwards v. Ed- wards. 5 Heisk. 123. 5 Edwards v. Edwards, 5 Heisk. 123 ; compare Beugger ?'. TJnden- berger, 53 Mo. 365 ; Auerbach v. Pritchett, 58 Ala. 451. G Burger v. Potter, 32 111. 66 ; Mott v. Carter, 20 Gratt. 127 ; Mc- Cully V. Chapman, 53 Ala. 325 ; Leeper v. Byon, 68 Mo. 216. 7 Jackson v. Hill, 39 Tex. 495 ; Edwards v. Edwards, 5 Heisk. 128 ; but see Thornton v. Mai, 49 Ala. 590. S "Wood V. Loughmiller, 48 Tex. 803; compare also Hughes v. Hatchett, 55 Ala. 544 ; Bozeman v. Bon, 49 Ala. 76. 9 Davis V. Rankin, 50 Tex. 279 ; Beirne v. Brown, 4 W. Va. 72. 10 Leese v. Sherwood, 21 Cal. 163 ; Chapman v. Sacour, 25 Tex. 94. 11 Estell V. Cole, 52 Tex. 177 ; Demaret v. Benhett, 29 Tex. 267. 12 Milner v. Ramsey, 48 Ala. 2:0. • 13 Tompkins v. Horton, 25 N. J. Eq. 292 ; see Howard ?-. Robinson, 5 Cush. 120 ; contra, Mehrle v. Dunne, 75 111. 240. 14 Jennings v. Hinkle, 81 111, 183 ; Kellenberger ?'. Boyer, 37 Ind. 189. 15 Hortskotte v. Menter, 50 Mo. 159; Mehrle r. Dunne, 75 i:i. 240; Carney v. La Crosse & M. Ry. Co. 15 Wis. 503. 16 Hooper v. Flood, 54 Cal. 219; and see Klaus v. Green i:ay, ;>4 Wis. 629 ; Charboneau v. Henni, 24 Wis. 254. 17 Smith V. Shaffer, 46 Md. 578. 13 Munger v. Lenroot, 32 Wis. 541. 10 Gage V. Perry, 93 111. 179 ; Chamberlain v. Lyell, 3 Mich. 459. 20 Gage v. Perrv, 93 111. 179; Chamberlain v. Lyell, 3 Mich. 459; Dial V. Reynolds, li6 U. S. .341; Shellenbarger r. Biser, 5 Neb. 200; Macloon v. Smith, 49 Wis. 212; Banning v. Bradford, 21 Minn. 814; Croghan v. Minor, .58 Cal. 15 ; Brundaya v. D. & F. M. Soc. 50 Barb. 213 ; McDermon v. Burke, 16 Cal. 687. 83 >rECESSiRY A>'D PEOPEK PAKTIES. ^ 27 21 Potter t'. Hussey, 1 Utah, 249 ; see Young v. M. & i:. Ry. Co. 2 Woods, 613 ; Da\is v, Converse, 35 Vt. au6. 22 Kearsing v. Kilian, IS Cal. 493 ; see Dow v. Seely, 2D 111. 496 ; De Cottes V. Jetiers, 7 Fla. 28-5 ; compare Vaughn r. Cushing, 23 Ind. 184, 23 Crenshaw v. Thackston, 14 S. C. 441 ; Hutchinson v. Johnson, 3 Halst. Ch. 4S; Stucker v. Stucker, 3 Marsh. J. J. 301; Gooclsnow v. Ewer, 16 Cal. 465; Harvey v. Thornton, 14 111. 21S ; Wall v. Boisge- rard, 11 Smedes & il. 5S6 ; Kunkel v. IVTarkell, 26 Md. 404. 24 Stevens v. Campbell, 21 Ind. 472; Stewart v. Hutchinson, 21 How. Pr. 1S2; Van Xest v. Latson, 19 Barb. 607; ^V^i^ht v. Eavcr,, 10 Rich. Eq. -bOl ; Harvey v. Thornton, 17 111. 217 ; Mims v. Mims, S5 Ala. 25 ; Vreeland v. Loubat, 1 Green Ch. 101 ; compare Marsh v. Green, 79 111. ;«6. 25 Amphlett ?-. Hibbard, 29 Mich. 302 ; Fletcher v. Holmes, 32 Ind. 506 ; see McClure v. Holbrook, 39 Mich. 43; Thornton v. Pigg, 24 Mo. 251. 26 Chase v. Abbott, 20 Iowa, 15D ; Shoemaker v. Gardner, 19 Mich. 97 ; Moss r. Warner, 10 Cal. 297 ; compare Amphlett v. Hibbard, 2J Midi. 2J3 ; Wilcox v. Scott, 23 Ohio St. 639. 27 Foster v. Hickox, SS V.'is. 411 ; McArthur v. Franklin, 15 Ohio St. 503: Byrne v. Taylor, 46 Mich. 97; Eslavy v. Leprater, 21 Ala. 522; contra, Thornton r. Pigg, 26 Mo. 2-51. 25 Foster v. Hicox, 33 Wis. 411 ; see Mims v. Mims, 1 Humph. 4.%. 29 Front v. Hoge, 57 Ala. 31 ; Miller v. Henderson, 2 Stockt. Ch. 322 ; Christie r. Herrick. 1 Barb. Ch. 259. 30 Gower v. Howe, 20 Ind. 397 ; Grant v. Ludlow, 8 Ohio St. ; Len- non ?•. Port?r, 2 Gray, 475; Huduit ?-. Tomson, 11 Green C. E. 2^; compare O'Mohuno v. Hensou, 26 Gratt. 514. 31 Jarman v. Wiswall, 24 X. J. Eq. 270; Mackay v. Blackett, 9 Paige, 4:i3. 32 Xoyes r. Sawyer, 3 Vt. 160 ; Do Grieff r. Wilson, :;0 X. J. Eq. 426. a3 Shelden v. Bennett, 44 Mich. 636. 34 Tucker r. Silver. 9 Iowa, 262 ; see Clark v. Manniiig, 95 HI. 531 ; Case V. Price, 17 How. Pr. ;i50; McGraw v. Bayard, tG 111. ISi; Willis ?'. Henderson. 4 Scam, 20, S.5 McGraw ?•. Bayard, 96 111. 1.5:^ ; Scanlan v. Cobb, 85 111. 2C6. 26 Mavricu v. Grier, 3 Xev. 56 ; Van Vechton v. Terrj'. 2 Johns. Ch. 197. 37 Allen v. Roll, 25 X. J, Eq, 165 ; compare Van Vochten v. Terry, 2 Johns. Ch. 197 ; Wilhnk v. ]SL Canal Co. 3 Grey. ;^7 ; Williamson v. X. J. Southern Ry. Co, 25 X, J, Eq, 19 ; McElreth v. The P, & S, Ry. Co. 2SLeg. Int. 197. 38 Averritt v. Ward, Busb. Eq. 192 ; generally Savings Ass'n v. Vandevere, 3 Stockt. Ch. ;i83 ; Byrne v. Taylor, 46 Miss. 97 ; compare Mebane v. Mebane. 80 X. C. 3S ; contra, Dooley v. Villalonga, 61 Ala. ];«: Bryce v. Bowers, 11 Rich. Eq. 42; Hitchcock v. U. S. Bank, 7 Ala. 442. 3D Hibernia Sav. & Loan Soc, v. Herbert, 5T Cal. 578 ; Abbott v. Godfrey, 1 Mich. 180 ; contra. Miles v. Smith, 22 Mo, 503. 40 Leonard v. Morris, 9 Paige, 91 ; Dooley v. Villalonga, 61 Ala, i;Jo ; Belloe V. Rogers, 9 Cat. 125. 41 Vanhorn v. Duckworth, 7 Ired. Eq. 26:^; King v. Seals, 45 Ala. 419 ; Freeman v. Scofield, 16 X. J. Eq. 2.) ; Smith v. T. D. Falls Co. 3 Green Ch. 509. § 28 XECESSAEY AND PROPER PARTIES. 8i 42 Britton v. Hunt, 9 Kan. 230 ; George v. Cooper, 15 W. Va. 674 ; Renshaw v. Taylor, 7 Oreg. 320; Labanve v. Slack, 31 La. An. 140; compare Jeneson v. Jenesoii, 6() 111. 264 ; but see Truesdell v. Rhodes, 26 ^^'is. 218 ; Houghton v. Mariner. 7 Wis. 244 ; Leonard v. Morris, 9 Paige, 92 ; Minis t-. :\[ims, ."5 Ala. 25. 43 Hunt V. Acre, 23 Ala. 537 ; see Givens v. Davenport, 8 Tex. 455. 44 Griffin v. Lovell, 42 Miss. 403 ; Kinna v. Smith, 2 Green Ch. if. ; contra, Huggings v. Hull, 10 Ala. 283. 45 Shaw r. McXish, 1 Barb. Ch. ;?28. 46 Pine v. Shannon, ;^0 X. J. Eq. 501 ; De Saussure v. Bollmann, 7 Rich. 333 ; Morris v. Wheeler, 45 X. Y. 709 ; Bruen i'. Crane, 1 Green Ch. li-iS ; see also Grant v. Ludlow. 8 Ohio St. 9 ; Hemsler v. Nickum, 38 Md. 274. 47 San Francisco r. Lawton, IS Cal. 473 ; Merritt v. Wells, IS Ind. 172; Huduit v. Xash, 1 Green C. E. 552; Smith et al. Claimants, 4 Xov. 255; Wheat c. Moss, 16 Ark. 256; Walker r. Bank of Mobile, 6 Ala. 460 ; Evans v. McLucas, 12 S. C. 61 ; and see Barton r. Kings- burv, 43 Vt. 642; Jerome v. McCarter, 94 U. S. 734; Augustine v. Doud, 1 Bradf. 594 ; JMorse v. Larkin, 46 Vt. 371. 48 Leonard r. CJroome, 47 Md. 505 ; Rice v. Hall, 41 Wis. 456 ; Brown V. Xevitt, 5 Cush. 814 ; Ritch r. Eichelberger, 13 Fla. 178 ; Mack r. Grovor, 12 Ind. 255; Besser v. Hawthorn, 3 Oreg. 131; compare Schneider v. Stailir, 20 Mo. 271 ; see also Cooper v. Martin, 1 Dana, 26 ; Shinn v. Shinn, 91 111. 482 ; Colehour v. St. Sav. Inst. 90 111. 153 ; Alex- ander V. Greenwood, 24 Cal. 50J ; Montgomery v. Tutt, 11 Cal. 314 ; Vanderveer v. Holcomb, 2 Green C. E. 89. 49 Leucox v. Reed. 12 Kan. 223 ; Merritt v. Phenix, 48 Ala. 91 ; Goodenow v. Ewer, 16 Cal. 46J ; Boggs v. Hargrave, 16 Cal. 562 ; com- pare Ufford r. Wells, 52 Tex. 616 ; Schmeltz v. Garey, 49 Tex. 58 ; and s?e Clark i\ Connor, 28 Iowa, 315. 50 Merritt v. Phenix, 48 Ala. 91 ; Soule v. Albee, 31 Vt. 145. 51 Reed v. Marble, 10 Paige, 413 ; Redfield v. Hare, 12 Iowa. ;w7 ; Mills V. Traylor, ,iO Tex. 11 ; Horton v. Saunders, 13 Mich. 413 ; Hod- son i\ Treat, 7 Wis. 278 ; Merriman v. Hvde, 9 Neb. 120 ; Fahie v. Pressly, 2 Oreg. 23 ; N. Y. L. Ins. Co. v. Bailey, 3 Edw. Ch. 440. 52 Horn r. Jones. 23 Cal. 199 ; Cook v. Manicus. 5 Johns. Ch. 94 ; Linn v. Patton, 10 W. Va. ISS ; Hull v. Lyon, 27 3Io. 576 ; Bennett r. Calhoun L. & B. Ass'n. 9 Rich. Eq. 16;< ; Cleveland v. Boerum, 27 Ba^-b. 253 ; and see Carroll r. Kershner, 47 Md. 270. I 28. "^ho are necessary or proper parties in "bills to redeem and for partition. — It may be generally stated that to a bill to redeem all persons whose interests or rights would be affected by the decree should be made parties ; ^ but one who purchases the equity of redemption at execution sale need not make the mortgagor a party to his suit to redeem.^ When a debtor files a bill against the asignee of his note to be relieved of usury, and to redeem property apparently sold but in fact pledged for the debt, the assignor is properly made a party.^ "When a mortgage has been absolutely assigned the 85 XECESSAEY A>1) PROPER PARTIES. J 40 last assi^ee is the only necessary party defendant; whether an iutjim-diate assignor has received I'ent or not is imma- terial.^ A widow entitled to dower in the mortgaged lands who joined in the execution of the mortgage mav, in a hill to redeem, prop rly make the purchaser of the eqiiity of redemx>- tion a party defendant, he having purchased from the hushand alone suhsequently to the execution of the mortgage.^ A., as assignee of a mortgage, also held a second mortgage, and was a joint assignee with B. of a third mortgage upon part of the same land. In a suit hy him against Z., a subsequent mort- gagee of the whole premises, to redeem, B. was held not to be a necessary party.** The administrator of a deceased mort- gagee is a necessary pirtyJ So when chattels specifically bequeathed are mortgaged by the executor he must be made a party to a bill to redeem.^ So also the heirs of the deceased mortgagor^ aud mortgagee i" are necessary parties. All the mortgagees in whom is vested the legal title must be made parties, and if the mortgagee is only trustee for another the cestui que trust should be joined.!^ To a bill for partition all p rsons interested in the property should bo before the court.'^ Each par:y to an action of this character is an actor, and it is immaterial whether ho appears upon the face of the record as plaintiff or defendant. ^-^ A lunatic must be made a party to a bill by his committee for partition of his lands. ^^ To a suit to establish complainant's rights and for partition, one to whom complainant's vendor while a lunatic sold the same land need not be made a party. ^^ C, having divested himself of all title to lands to two persons, is not a necessary party to a bill by one of the vendees against his co-vendee for a division of the premises. 1*^ A wife whose husband has an interest in lauds should be a party to a bill for partition in order to bar her right to dower ^' or claim of homestead ; i*^ and so generally, although it is not necessary still it is advisable to make those persons parties who are entitled to dower in the premises which has not been admeasured, and which extends to the whole of the premises of which partition is sought, ^^ not only life tenants but reversioners should be made parties. ^^ The administrator Parties — 8 § 28 a NECESSAKY AND PROPEK PARTIES. 8G of a deceased co-tenant, however, is not a necessary party.^^ When a suit is brought by an heir all the co-heirs must be joiner!; 22 mere occupants of the land, however, even though claiming through the heirs, need not be joined, ^^ nor are en- cumbrancers proper parties. ^-^ 1 Supra, ? 38 ; Beach v. Shaw, C7 111. 19. 2 Thorpe V. Rieks, 1 Dcv. & B. Eq. 63. 3 Woodward v. Fitzpatrick, 9 Dana, 118. 4 Lennoii v. Porter. 2 Gray, 475 ; see Webber v. Taylor, 5 Jones Eq. 37. 5 McCabe v. Bellows, J Allen, 260. 6 Piatt V. Squire, 12 Met. 499. 7 Suavely v. Pickle, 29 Gratt. 42 ; Guthrie v. Sorrel! , 6 Ired. Eq. 13. 8 Burkhead v. Colson, 2 Dev. & B. Eq. 78. 9 Smith V. Murphy, 58.Ala. 634 ; Sutherland v. Rose, 47 Barb. 151. 10 Suavely v. Pickle, 29 Gratt. 42. 11 Woodward v. Wood, 19 Ala. 215; compare Woodson v. Perkins, 5 Gratt. 353; Smith v. Sheldon, 65 111. 222; "Williams v. Howard, 3 Murph. 77. 12 Kesler v. Stark, 19 111. 323; Lancaster v. Seay, 6 Rich. Eq. Ill ; Barhaus v. Barhaus, 2 Barb. Ch. 451 ; Sutter v. Sau Francisco, C6 Cal. 114. 13 Senter v. Do Bernal, 38 Cal. G-12. 14 Gorham v. Gorham, 3 Barb. Ch. 40. 15 Calias v. Woodson, 2 Dana, 453. 16 Guun V. Brantley, 21 Ala. 644. 17 Greiner v. Kleni, 28 Mich, 12 ; contra, Lee v. Lindell, 22 Mo. 203. 18 De Uprey v. Do Uprey, 27 Cal. 332. 19 Tanner v. Niles, 1 Barb. 563 ; Haulenbeck v. Cronkright, 23 ]Sr. J. Eq. 409. 20 Bell ?j. Adams, 81 N. C. 121 ; and compare Gates ■?'. Salmon, ;i.5 Cal. 586. 21 Foster v. Newton, 46 Miss. 662 ; Spoer v. Speer, 14 N. J. Eq. 220 ; Boutte V. Boutte, 30 La. An. 182. 22 Boutte V. Boutte, 30 La. An. 182. 23 Pleak v. Chambers, 7 Mon. B. 570, 24 Speer v. Speer, 14 N. J. Eq. 251 ; Ebcrts v. Fisher, 44 Mich, ir^); Wotton V. Copeland, 7 Johns. Ch. 140. ^ 28 a. Injunction. — It is a general rule that an injunc- tion will not be granted against a person not a party to the suit; 25 but a State which has no direct interest in the de- cree to be rendered is not a proper party.^" When parties arc numerous, as in case of injunctions to restrain the collec- 87 NECESSAEY A^D PROPER PARTIES. § 28 a tion of a tax to pay certain bonds, the bondliolders are not indispensable, but are necessary parties. ^^ When the owner of school lands seeks to restrain the collection of, and to have a tax loviod upon such lands declared void, the county is a propir party to the proceeding. 2** A city is a ncccssaiy party to a bill si-eking to restrain the collection of city assessments for the payment for sidewalks made in front of lots within its limits;-^ also to a bill to restrain illegal p:iymcnt of city funds ; ^'-^ so to a bill to restrain an illegal use of a public high- way. ^^ To a bill which seeks to restrain a city from paying a fire marshal for services, such officer must be joined i^''^ so the election officers arc necessary parties to a suit to restrain a city from paying the expenses of a municipal election.^-^ A school district is a necessary party to a suit to restrain the collection of a tax l:-vied for the purpose of paying interest on a school district bond, and to create a fund for the redemption of the boud.^* In an actio n against th e auth orities of a city to restrain them from the commission of an illegal or fraudu- lent act, — i. e., giving contract to one not tlie lowest bidder, — neither the contractor nor bidders are proper parties. ^^ When the legislature provided by law for the payment of the pro- ceeds of the sale of certain lands to certain railroad companies for certain purposes, such companies must be parties to a suit to restrain such payment.^*^ When a corporation is sought to be restrained from doing business in a manner alleged to be in excess of its powers and in violation of law, it must be a i^arty to the proceeding.^^ When the owners of a plank road abandon the same and it becomes public property, the county judge is the proper party to file a bill to restrain such owner from impvcpsr interference with the same.^^ When a road overseer proceeds to take possession of private lands for public use without proceeding in the manner provided by law, although he act^ under the order of the county court, he may be restrained from so proceeding, and the county court should be a party to the bill for the injunction ;^^ but the clerk who is entitled to costs on the judgment sought to be enjoined is not a proper party to the bill.-^^ The clerk of the board of supervisors § 28 a KECESSAEY AXD PROPER PARTIES. 88 being the person autliorized by law to execute tax deeds is a necessary" party to a bill seeking to enjoin the execution of such deed upon a void tax certificate.*^ A sheriff or other officer who has in his hands an execution is not, as a rule, a proper party to o bill to enjoin the judgment upon which the execu- tion was issued ; but if he unlawfully combine with the judg- ment creditor to unnecessarily harass and oppress the debtor he may be joined. *2 "When an action at law is sought to be enjoined, all persons who have an interest in the subject- matter, and who will be naturally affected by the decree, should be made parties.*^ One who is jointly liable with complainant upon the note sought to be enforced should be a party to a bill to restrain its collection.*'* So when fraud in obtaining the judgment is charged all the participants should be ma le parties to the proceedings to restrain its enforcement ; *^ the attorneys, however, against whom no fraud is charged or relief sought should not be joined.*'' The wife is a necessaiw party to a suit to restrain the plaintiff from proceeding in an action at law against the husband and wife.*^ "When the wife seeks to restrain the creditors from selling her separate property for the debts of her husband, she should sue by her next friend and her husband should be a party defendant.*^ When it is sought to restrain a widow from conveying her right of dower she must be made a party to the proceedings ; that she is a party as administratrix is not sufficient.*^ "Where a suit is brought to enjoin a sale about to be made under a trust deed, the trustor being directly interested should be made a party. &" When the trustee holds for the benefit of creditors, and suit is brought to restrain him from selling the trust property for their benefit, the creditors should be made parties.^i One member of a firm having sold a copy of an atlas upon which the firm claimed a copyi-ight, in an action to enjoin the publi- cation of such copy all the members of the firm must be made parties. S2 t^^^ exception to the general rule that the rights of a person will not be determined in a suit to which he is not a party will be found to consist of cases where the person en- joined is the mere solicitor, or agent, or tenant of a party to S9 XECESSAEY AXD PROPEE PAETIES. § 28 a the suit having no rights involved in the controversy, or where the right lias already been determined.^' 25 Chamberlain v. Leichter, 12 Minn. 27S ; Fellows v. Fellows, 4 Johns. Ch. 25 ; Waller v. Harris, 7 Paige, 167 ; see In re Hennup, 2 Paige, 319 ; New York v. Connecticut, 4 Dall. 6. 26 Cent. Ry. Co. v. The M. & C. of Macon, 43 Ga. &42. 27 Rj-an r. Lynch, 68 111. 164; Hutchinson v. Burr, 12 Cal. 103; Board v. T. &, P. R. W. Co. 46 Tex. 323; but see Leitch v. Wentworth, 71 1:1. 147. 23 LeflFerts v. Board of Supervisors, 21 Wis. 689; compare Milwau- kee I. Co. V. Hubbard, 2.) Wis. 55. 29 Gilinore v. Fox, 10 Kan. 510. 30 Lanirs v. King, 40 Conn. 312 ; and see Burden v. Stein, 27 Ala. 112. 31 Philadelphia v. Ry. Co. 8 Phila. 648. 32 Butcher v. Camden, 29 X. J. Eq. 478. .33 Bingham v. Campden, 29 N. J. Eq. 465. 31 Hays v. Hill, 17 Kan. 361. 35 People i-. Mayor etc. 32 Barb. 37. 30 Kansas r. Anderson, 5 Kan. 114. 37 Price v. Minot. 107, Mass. 63; compare Davis v. Trustees' First Cong. Soc. 6-5 2s . Y. 279. 3.3 Craig v. The People, 47 111. 49G. 39 Carpenter ?•. Grisham, 59 Mo. 251; but see Burpee v. Smith, Walk. Ch. ?29 ; McNeill i'. McNeill, 36 Ala. 120. 40 M'Gavock v. ElUott, 3 Yerg. 374. 41 Siegel V. Supervisors. 26 Wis. 72. 42 Allen r. Mechill. 14 Ohio, 454 ; contra, Burpee i-. Smith, Walk. Ch. 330; compare Fellows v. Fellows, 4 Johns. Ch. 25; Blanton »•. Hall. 2 Heisk. 424 ; fepottswood v. Higgenbotham, 6 Munf. 314. 43 Atkins v. Billings, 71 lU. 597 ; Berry v. Berry, 3 Mom. 265. 44 Bailev v. Inglee, 2 Paige, 279 ; Vanmeeter v. Williams, 1 Marsh. J. J. 561 ; Jameson v. Deshields, 3 Gratt. 11 ; Jamison v. Maj-, 13 Ark. 602 ; and see generally Wickliffe v. Lee, 4 Daua, 33. 45 Hill V. Reifshider, 39 Md. 432. 46 Keenan v. Miller, 2 Kelly, 32.5. 47 Booth V. Albertson, 2 Barb. Ch. 313. 48 Kirkpatrick v. Buford, 21 Ark. 2?2. 49 Pennington v. Hanby, 4 Munf. 140. 50 Abrahms v. Vallbaum, 54 Tex. 227. 51 Calwell ?•. Prindle. 11 W. Va. 309 ; compare Sixth Ward Building Asso. V. Wilson, 41 Md. 509. 52 Rees v. Peltzer, 75 111. 484. 53 Schalk v. Schmidt, 14 N. J. Eq. 270; see Bradley v. Nortoti, :i3 Conn. 165. '6 29 WHO MAY SUE AND BE SUED. 90 CHAPTEE IV. ALIENS, XOX-RESIDENTS, INDIANS, TEUSTEES, ASSIGNEES, ETC. ? 2'J. Aliens, non-resiclents, and Indians. § 30. To enforce a public right. 2 31. Generally in actions upon contracts. g 32, Trustees, actions by. ? S3. Trustees, actions against. ? 34. Assignor and assignee, actions by. I 35. Same continued — Actions upon promissor j' notes. § 36. Contracts under seal, bonds, covenants, etc. ? 37. Contracts made for the benefit of third persons. § 33. Generally in actions for torts. I 29. Generally aliens, non-residents, and Indians.— A foreign sovertign may maintain an action at law or in equity in either State or federal courts.^ Where property of a foreign government is for the time being vested in its ambassador, who is by such government authorized to maintain an action therefor in his own name, he may maintain an action in our courts.'-^ An alien whose rights are guaranteed to him by treaty and who is merely permitted to hold property, may maintain an action for its recovery.^ In absence of proof that an alien has become a citizen, his original status is presumed to con- tinue.* He has no rights concerning immovable property' within a State except such as it may deem proper to concede.^ Under the abandoned and captured property act, the right of an alien to sue in the court of claims of the United States de- ponded upon the question whether or not such aliens were citi- zens of a government which accorded like privileges to citizens of the United States.'' A foreign judgment creditor who has obtained no judgment in this State, and has no attachment or other lien upon his debtor's lands here, cannot maintain a suit to subject such lands to the payment of his debt.' Thepleaofalitn- ageought to contain a direct averment that the person is an alien, that he was born out of the allegience of the State and within the .*! ALIEXS, NOX-EESIDENTS. ^ 29 allegieuce of a foreign state ;^ it should aver that such was the character and status of the person when the suit was brought.** At common law if plaintiflfin a real action was an alien enemy at the commencement of the suit, it was cause for abatement.^" So if the disability occurred after suit brought, it was cause for dismissal ;^i but now that fact merely suspends the right of action.i"'^ Where both parties to a conti-act are aliens, it may be enforced in a State court. ^-^ The rule is well established :iiat although an alien enemy cannot sue a friendly citizen in the courts of the latter's countiy, yet he may be sued in such :ourts ; ^' and being sued he has the right to employ all means and appliances of defenses, including the right to employ counsel and be represented by them therein. ^^ In case of war between indc pendent powers, an abuse of beligerent power "oill not be inquired into by the courts of the adverse j)arty ; this rule, however, does not apply to a domestic war between the people of the same nation. i*^ When all trade and traffic between citizens of States at war with each other is prohibited by the laws of one of such States, such contracts made in vio- lation thereof cannot be enforced in its courts. i' This rule, however, has no application to conti'acts made prior to the war by citizens of such beligerent States;^** to bring a case within the rule the persons must at the time the contract is made be under the dominion of different and opposing flags. i** An alien who is sued in a State court may, by complying with the laws of Congress, remove the suit to the federal courts, but cannot claim a dismissal of the suit upon the ground that it was im- properly brought in the State court. 2" In Louisiana a citizen of another State, although he has a dwelling there, is an ab- sentee within the meaning of the statute, and may be repre- sented in a suit brought against him by a curator ad /(oc.21 If he has property within the State and within the jurisdiction of the court, he may be brought into court and have a judgment in rem rendered against him either by an attachment against the property or by appointing a curator ad hoc for him. 2- In Massachusetts prior to Statute of 18C9, ch. 463, the disability of an Indian to sue in his own name for a tort committed upon § 29 "^HO MAY SUE AND BE SUED. 92 him must be pleaded in abatement before answer. 2=< In Kan- sas held in a partition suit that the fact that both parties were Shawnee Indians, did not forbid to the court jurisdiction of the parties or subject-matter.^* In Ehode Island it was held an Indian who did not live with his tribe may be sued under the licvised Statutes upon a note, although it was given under a former law by whicli he was exempted from suit.^a At common law a person civilly dead is incapable of maintaining an action, the disability could either be pleaded in abatement or in bar. In this State (Deleware), the rule does not obtain and such person may sue or be sued.26 1 King of Prussia i\ Knepper. 22 ilo. 557 ; Mexico v. Arrangois, 1 Peters C. C. 276 ; Kiug of Spain v. Oliver, 2 Wash. C. C. 431. 2 Peel V. Elliott, 7 Abb. Pr. 437 ; Xewman v. Wilson, 1 La. An. 48. 3 Den V. Brown, 7 X. J. L. 333; and see De Laviaga r. Williams, 5 Sawy. .574 ; Kouche i\ Williamson, 3 Ired. 145. 4 Hanenstein v. Lynham, 100 U. S. 484. 5 Hanenstein v. Lynham, 100 V. S. 484 ; and see Scott r. Sandford, 19 ITow. 399 ; Heirn v. Bridault, 37 Miss. 221 ; compare Atkins r. Kron, 5 Ired. Eq. 207 ; Stillman v. Dunklin, 48 Ala. 175. G Brown v. L'nited States, 5 Ct. of CI. 575. 7 Davis V. Dean, 26 X. J. Eq. 436 ; and see Tavvell v. Griggs, 3 Paige, 207 ; IMcCartney v. Bostwick, 32 X. Y. 57. 8 Coxe V. Gulick, 10 X^. J. L. 329. Elger V. Lovell, 1 Woolw. 110. 10 Hutchinson v. Brock, 11 Mass. 123 : Martin v. Woods, 9 Mass. o3. ; and see McXair i\ Toler, 21 Minn. 184. 11 Howes V. Chester, 33 Ga. 90. 12 Levine v. Taylor, 12 Mass. 9* Hutchison v. Brock, 11 Mass. 123 ; C.iapelle v. Olnej*, 1 Sawy. 40i ; Crutcher v. Hord. 4 Bush, 368; ^Vhelan v. Cook, 29 Md. 7. 13 Roberts r. Knights. 7 Allen, 450 ; Wellborn ?-. Tlndell, 1 Mo. 215 ; Earrell v. Benjamin, 15 Mass. ;i56. 14 Ludlow ?-. Ramsey, 11 Wall. 589 ; De Jarnett v. De Giversville, 56 Mo. 444; United States v. 1756 Shares etc. 5 Blatchf. 2::;6: Xixer v. Sibley, 53 111. 73 ; Harter v. Ely, 56 111. 183 ; Seymour >\ Bailey, 66 HI. 2db ; Dorsev v. Kvle, 30 Md. 519 ; Dorsey v. Dorsev, 30 Md. 527 ; Dorsey V. Thompson, 37 Md. 38 ; Smith v. Ins. Co. &1 Mo. 332 ; and see Peerce V. Clarskadon, 4 W. Va. 236. 15 McVeigh v. T. S. 11 Wall. 267 ; Falls v. Dickey, 5 Jones Eq. 359 ; McXair v. Foler, 21 ilinn. 184 ; Russ v. Mitchell, 11 Fla. 87. 16 Christian Co. Ct. v. Rankin, 2 Duval, 503 ; and see Little v. Bar- remo, 2 Cranch, 157. 17 Webster v. Mahonev, 22 La. An. 593 ; Bowdica v. Heation, 22 La. An. 356 ; Mansfield v. McLean, 22 La. An. 216. 13 Stiles r. Easley, 51 111. 276. 19 Acklen v. Hickman, 60 Ala. 571. 93 ALIENS, XOX-REStDENTS. § 30 JO Welve V. Duroc, 15 La. An. 66. Jl Morris v. Bieuveun, 30 La. An. 878 ; and see Hyde r. Marey, 22 L;i. An. ••«;<. 22 O'Hara v. Booth, 23 La. An. 821. 23 Jahaj'. Belleg, 1^5 Mass. 211. 24 Swartzel v. Rogers, -i Kau. 377. 25 Stokes v. Rodman, 5 R. I. 405. 26 Cannon v. Windsor, 1 Houst. 144. § 30. To enforce a public right. — When a matter of pub- ; :o right i:S involved, any citizen of the State may be a relator in ..n application for a mandamus to enforce the common law or an act of the legislature. i When a private right is sought to he enforced the person intei'ested must be the relator ; ^ the suit should be prosecuted in the name of the sovereign author- ity, and not in the name of the person beneficially interested.^ Xo one can maintain an action unless he has some interest in The matter in controversy; if the iaterest is joint then all -iiould unite as plain tifis. If one who should be made plaintiff annot be obtained he should be made a defendant, and the reason therefor stated in the complaint. If the interest is one general or common to many persons, or parties are numerous, nd it is impracticable to bring all before the court, one or i-iore may sue or defend for the benefit of the whole ;* but one : lember of a class having a common interest in the subject- : latter cannot maintain a suit in his own name, and for his individual benefit.^ So if persons are very numerous, and have •r may have separate and distinct interests, yet the right be •mmon to all, one or more may sue for the common benefit.^ .Vhen a bill is brought by one person on behalf of himself and all others who are entitled, but no other person actually comes in tij prosectite with him, the bill cannot be maintained unless satis- factory evidence is offered of a right in him to equitable relief.^ When money is to be raised by taxation or expended from the public treasury, a citizen and tax payer has such an interest as will enable him to proceed on behalf of himself and others hav- ing like interests in equity to test the validity of the law which proposed the assessment or expendittire.^ In Wisconsin it was held that a suit could not be maintained by one tax payer, on § 30 WHO M.\Y SUE A>-D BE SUED. 94 behalf of himself and others, to restrain a county treasurer from proceeding to advertise and sell a large body of rtal estate situated in the school district, and belonging to them in severalty, for the purpose of collecting a delinquent tax assessed upon the property of the district, to pay certain judgments alleged to have been obtained against the school district upon illegal and forged school orders.^ It is an ancient rule of law that no action lies for a public nuisance, but by indictment only.''" The only exception to this rule is where the private person suffers some extraordinary damage distinct from that suffered by the public at large. ^^ The better opinion now seems to be that where two or more persons have separate and dis- tinct tenements which are injured or rendered uninhabitable by a common nuisance, or which are rendered less valuable by a private nuisance which is a common injtrry to the respective tenements of each of the complainants, they may join in a suit to restrain the same.^^ One who erects a nuisance upon his premises, and then conveys the same with covenants of war- ranty, is liable for its continuance.^* 1 People V. Collins, 19 Wend. 5S ; generally Chumasero •?'. Potts, 2 Mont. 2^ ; State v. Marston, 6 Kan. 532 ; State v. Bailev,7 Iowa. 397 ; Crowell V. Lambert. 10 Minn. 375 ; Co. of Pike v. State, 11 111. 207 ; Glencoe v. The People, 78 111. 390 ; Napier v. Poe. 42 Ga. 178 ; Ferry v. Williams, 41 X. Y. 333; but see Sanger v. Co. Commrs. 25 Me. 296 ; Heffr.er v. Commonw. 28 Pa. St. 112 ; Wellington v. Pot'n'rs, 16 Pick. 105 ; People v. Regents Univ. of Mich. 4 Mich. 102 ; Miller r. Grandy, 13 Mich. 550. 2 Co. of Pike v. State, 11 111. 208 ; People v. Collins, 19 Wend. 58 ; State V. Haben, 22 Wis. 667 ; compare State v. Cincinnati, 19 Ohio, 188. 3 State V. Commrs. Perry Co. 5 Ohio St. 502 ; Chance v. Temple, 1 Iowa, 192 ; Brower v. O'Brien, 2 Ind. 431 ; contra, State v. Marston, 6 Kan. .532 ; People v. Pacheco, 29 Cal. 213; and see People v. Supervisors, 50 Cal. 561. 4 Terrv v. Calnan, 4 S. C. 515 ; Shoemaker v. Commrs. 36 Ind. 181 ; same effect, B. & L. R. Co, v. Metcalfe, 4 Met. (Ky.) 2W ; Blatchford T. Ross, 51 Barb. 43 ; Smith v. Wood, 10 N. Y. Leg. Obs. 12 ; Smith v. Swormstedt, 16 How. c02 ; see also Ayres v. Carver. 17 How. 592 ; Bacon ?■. Robertson, 18 How. 48^ ; compare Lowry v. Francis. 2 Yerg. 536 ; Reynolds v. Bank of Va. 6 Gratt. 178 ; Chapman v. Banker, 128 Mass. 479. 5 Smith r. Wood, 10 N. Y. Leg. Obs. 12 ; Fraser v. Freelon, 53 Cal. 647 ; Osborne v. Brooklyn Cv. R. Co. 5 Blatchf. 368 ; Currier v. West Side E. P. R. Co. 6 Blatchf. 404 ; Lansing /•. Smith. 8 Cowen, 152 ; Davis V. Mayor etc. New York, 14 N. Y. 514 ; Packard v. Board, 2 Colo. 350. 6 Smith V. Swormstedt, 16 How. 302 ; B. & L. R. Co. r. Metcalfe, 4 Met. (Ky.) 204 ; compare Reid v. The Evergreens, 21 How. Pr. 319 ; 3 ALIENS, KOy-EESIDEXT3. ^31 (; inierz'. Wright, 21 How. Pr. 147; McCaleb v. C'ric^.ficl 1, 5 Ileisk. 7 Hubb-11 V. Warren, 8 Allen, 176. S Page r. Allen, 53 Pa. .St. :M5; Sharpless ?-. Mayor of Phila, 21 Pa. St. 176 ; Mott v. Pa. R. Co. 30 Pa. St. 20 ; 0.sburn v. Stanley, o W. \a. 88 ; Mayor v. Gill, 31 Md. 394 ; New London v. Bramard. 22 Conn. '5; Webster v. Hurvvinton, :32 Conn. i:i6 ; Collins v. Kipl,-v, 8 Iowa, in ; Newmayer ?'. M. •. Cloe, 8 Neb. 1-; Merrill v. Plaiufield, 45 N. H. VH; contra, Doolitile v. Super- visors, 18 N. Y. 157; Roosevelt v. Draper^ 2."^ N. Y. 32 i; Deniarest v. Wickham, 63 N. Y. 323 : compare Denton v. Jackson, 2 Johns. Ch. -^5. Cad}- V. CoDger, 19 N. Y. 261 ; compare Packard ?-. Board C o. Commrp. 2 Colo. 3.50; People v. Commrs. 4 Neb. 161; Mathenv ?•. Golden, 5 Ohio St. ;i64 ; Ciiicinnati St. R. C. v. Smith, 2j Ohio St.";303 ; Thurston V. Elmira, 10 Abb. Pr. N. 8. 120; Bouton v. Brooklyn, 15 Barb. 392; Barnes v. Belvit, 19 Wis. 94 ; Palmer v. Rice, 12 Mich. 418. 9 Newcomb v. Horton, 18 Wis. 58S ; compare Weir i'. Day, 35 Ohio St. 14.5 ; Chase v. Stephenson, 71 II!. 384. 10 Shed r. Hawthorne, 3 Neb, 184; Morris & Essex R. Co. v. Pruden, 20 N. J. Eq. 536. 11 .Shed r. Hawthorne, 3 Neb. 185; generally see Hinchman v. Paterson H. R. Co. 17 N. J. Eq. 82 ; Morris & Essex R. Co. v. Prudeu, 20 N. J. 'Eq.oSb ; Straits Turnpike Co. v. Hoadley Co. 11 Conn. 466; Bigelovv- V. Hartford Bridge, 14 Conn. 577 ; Irwin v. Dixion,!) now. 27 ; Clark r. Peekham, 9 R. I. 468 ; Thornton v. Smith, 10 R. I. 477 ; Petti.s V. Johnson, 58 Ind. 149 ; Bruning v. N. O. Canal, 12 La. An. 543 ; Bov- kin ?•. Shaffer, 13 La. An. 1.30 ; Dudlev v. Tilton, 14 La. An. 28-1 ; Hickok r. Hine, 23 Ohio St. 523 ; Sargent v. O. cfe Miss. R. Co. 1 Handy, 5) ; compare Blanc v. Klumpke, 29 Cal. 159 ; compare also Prince v. McCoy, 40 Iowa, 536 ; Clark v. Wellett, 35 Cal. 541. 12 Murray v. Hay, 1 Barb. Ch. 60 ; Belknap v. Trimble, 3 Paige, GOO ; Card-'gan ?•. Brown, 120 Mass. 493 ; Watertown v. Cowen,4 Paige, 515 ; Emery v. Erskine, 66 Barb. 10 ; Robinson v. Baugh. 31 Mich. 2j1 ; Mlddletown ?•. F. R. B. Co. 27 Mich. 5:J4 ; Grant v. Schmidt. 22 Minn. 2 ; Bardes v. Racine, 4 Wis. 466 ; Williams v. Smith. 22 Wis. GOO ; com- pare Penuoyer v. Allen. 50 Wis. 310; Schultz v. Winter, 7 Nev. 133; Hinchman v. Paterson H. R. Co. 17 N. J. Eq. 82. 13 Waggoner ?'. Jermaine, 3 Denio, 312 ; and see Lohmiller v. Ind. Ford W. P. Co. 51 Wis. 688; compare Gradv v. Wolsuer. 46 Ala. 382 ; Eastman r. St. Anthony Falls "W. P. Co. 12 Minn. 142 : Webb r. R. W. & O. R. Co. 49 N. Y. 434. § £1. In actions upon contracts. —It is a general rule that all actions upon contract, whetlier express or implied, by parol, under seal, or of record, must be brought in the name of the parties legally interested,^ the person with whom the contract Avas made. 2 The legal interest in a contract is in the ptroon to whom the promise is made and from -whom the corsideration passes, and consequently he is the person who must bring the action.^ In California and some other States eveiy action with certain specified exceptions must be prosecuted in the name of the real party in interest.* The woi-d "prosecuted," when § 31 ■VVHO MAY SUE AND BE SUED. 96 taken in connection with sectioQ thirty-seven of the Oregon Civil Code, must he taken to mean that all actions must he commenced in the name of the real party in interest.^ One is the real party in interest under the Code if he has a valid transfer as against the assignor, and holds the legal title to the demand,'' The rule is nothing more than a statutory enactment of the rule that has always prevailed in courts of equity.'^ In equity a person heneficially interested in a contract may main- tain a suit in his own name to enforce his rights.^ The term " trustee of an express trust," as used in the Code, requiring all actions to he prosecuted in the name of the real party in interest except ' = the trustee of an express trust .... may prosecute," .... was not intended to limit the meaning of the term to " a person with whom or in whose name a contract shall he made for the benefit of another," but to include that class within the general term.^ In order to maintain an action plaintiff must have a real and subsisting interest at the time of the commencement of the suit.^" An interest entirely con- tingent and uncertain, that may never have an actual existence — a bare possibility — is not sufficient. ^^ Where a suit is com- menced upon an instrument by one not a party to it, his inter- est should be affirmatively shown by proper allegations in the petition. 12 The rule requiring the real party in interest to sue should be limited to those cases in which the real party in interest possesses the entire cause of action, the original owner of the cause of action cannot, by parting with a portion of his interest in it, give a right of action to his assignee either at common law or by the provisions of the Code ; '^ if the assign- ment be made with the knowledge and consent of the debtor, the assignee may recover in his own name ; ^* but if the assign- ment be made without the knowledge or consent of the debtor, the assignee, although he cannot recover at law, may proceed in equity by making all persons in interest parties to the suit.^^ , Where there is a joint interest or joint cause of action all per- sons interested must join in an action to recover it, but where a severance is made by the debtor by paying one his proportion of the claim, the others may bring separate actions to recover 97 AT.ir.XS, yOX-BESEDESTS. § 31 icir interest. '^ A person -who is to receive a part of the profits a business either in whole or as part pay for his services may aintaiu a bill in equity for an account of the profits.^' So in |uity a person may maintain a suit upon a contract to which Iio is a party both as promisor and promisee. i** 1 Commonwealth v. Hughes, 8 Mon. B. 400 ; Kountz v. Holthouse, ' Pa. St. l-i7 ; Phillips v. Pennywit, 1 Ark. 61 ; Jones v. Sims, 6 Port. S Shotwell V. Gilkey, 31 Ala. 727; Anderson f. Williams, 2 Cush. i ; Hathcock v. Owen, 44 Miss. 802 ; Larned v. Carpenter. 65 111. 544 ; C ane v. Fisher, y La. An. 74 ; Kenuistoa v. Ham, 2D X. H. 507 ; Gov. i Arkansas v. Ball, Hemp. 545. 2 Sisson V. Cleveland, 14 Mich. 496 ; Jamison v. Jarrett, 4 Ind. 1S8 ; K -nnison v. Ham, 2) X. H. 507 ; Keane v. FLsher, 9 La. An. 74 : Cobb . The I. C. Rv. Co. ;iS Iowa, 61G; Corbett v. Schumacksr, S3 III. 405; '\' ed V. .S. & S. Rv. Co. 19 Wend. 5:17; .see Abbott v. Gregory, .39 Mich. " : Albanv Ex. Bank v. Sage, 6 Hill, 56:3 ; State v. Rhoades, 7 Nev. . ' ; Sumner v. Sleeth, 87 lU. 502 ; Ryer v. Stockwell, 14 Cal. 135. 3 Hall V. Huntoon. 17 Vt. 251 ; Fugnre v. Mut. Soc. of St. Jos. 46 :. 36); Gardner v. Armstrong, 31 Mo. 53S ; Exchange Bank: v. Rice, 7 Mass. 41 ; see Treat v. Stanton, 14 Conn. 451. 4 Wiggins v. McDonald, 18 Cal. 127; Weaver v. Trustees etc. 28 Ind. 113; Steeple v. Downing, 60 Ind. 4SS; Freeman v. Falconer, 45 X. Y. Supr. Ct. 384 ; Robbins r. Deverill, 20 Wis. 156 ; Hicklia v. Xeb. Cy. XatT Bank, 8 Xeb. 463. 5 Elliott V. Teal, 5 Sawy. 190. 6 Freeman v. Falconer, 45 X. T. Supr. Ct. SS4. 7 Grinnell v. Schmidt, 2 Sand. 707. 8 Burlew ?•. Hillinan. 16 X. J. Eq. 25; Frye v. Banlc of Illinois, 5 Gilm. :i37; Dixon v. Buell, 21 111. 204 ; compaVe Moore v. Trustees, 19 111. 86 ; Suydam v. Martin, Wright, 38-5. 9 Weaver v. Trustees etc. 28 Ind. 120; also comnaro Smith v. Smith, 5 Bush, 6:J2; Robbins v. Deverill, 20 Wis. 157; Gri:inGll t\ Schmidt. 2 Sand. 710 ; Considerant v. Brisbane, 22 X. Y. 39"^ ; Stillwell V. Hurlburt, 18 X. Y. .374 ; X'ewport, v. Taylor, 16 Mon. B. 731 ; Hirsh- filder r. Mitchell, 54 Ala. 419. 10 Dugas V. Truxillo, 15 La. An. 116 ; Leberman v. X. O. Fla. 5 ; compare Treat r. Stanton, 14 Conn. 451; Denton v. Denton, 17 Md. 406; see also Mc- Comas r. I'>s. Co. 56 Mo. 575; Van Schaick v. Third Ave. Rv. Co. 3S X^. Y. 3.54 ; Taylor r. Steamboat Robert Campbell, 20 :Mo. 2.59. 4 Davidson v. Elms, 67 X. C. 22S ; Mebane r. Mebane. 66 X. C. 335 ; Love 7-. .Johnson. 72 X. C. 420 ; Winters v. Rush. U Cal. i:;7 ; Willey v. Gatling, 70 X. C. 421 ; and see Xicolay r. Fritschle, 40 Mo. 67. ? 33 WHO MAY SUE AND BE ST7ED. 100 5 Willey V. Gatling, 70 IS". C. 421 ; generally Castner v. Hnmiier, 2 Mimi. 47 ; Donohoe v. Gamble, 33 C;al. :-!ol ; compare Marble v. Wlialey, 33 JMiss, 162 ; and see Peck v. iJodds, 10 Nov. 207. 6 Poorman v. Mills, 35 C'al. 120; but see Abrams v. Ciireton, 72 N. C. 526. 7 Hart v. Stone, SO Conn. £7, 8 Ashton V. Atlantic Bank, S Allen, 213 ; generally' Carrillo v. Mc- Pbillips, 55 Cal, 130. . 9 Malin v. Malin. 2 Johns. Ch. 240 ; and see Elmer v. T^ouer, 25 N.J. Eq. 480; Willink v. Morris Canal Co. 4 N. J. Eq. 3y7; Dmin v. 8cymour, UN. J. Eq. 221; generally Hitchcock v. Bank of United States, 7 Ala. 425 ; Howard v. Sneliing, 23 Ga. 471 ; B. & L. Ky. Co. v. Metcalfe, 4 Met. (Ky.) 204 ; Stone v. Hall, 17 Ala. 664, 10 Ferguson i\ Applenhite, 10 Smedes & M. 303; geuerallj- Mc- Clanahan v. Beaseley, 17Mon. B. 117. n Ploward v. Snelling, 23 Ga. 474. 12 Trustees of M. E. Church v. Adams, 4 Orog. 7S ; generally Beatty v. Kurtz. 2 Peters, old ; compare Malin r. Malin, 2 Johns. Ch. 240; Cross r. Jackson, 5 Hiil,470; Harper v. Crawford, 13 Ohio, 129; but see Gibson v. Armstrong, 7 Mon. B. 487; Shickerman v. Scever, 12 Johns. 401 ; see also Kelly v. Love, 20 Gratt. 130; East Haddam B. Church r. E. Had. Bap. Soc. 44 Conn. 260 ; First Cong. Soc. v. Trustees, 23 Pick. 151. 13 Cox i\ Walker, 26 Me. 512 ; generallv Burns v. Sanderson, 13 Fla. 384 ; compare Morrow v. Odom, 14 S. C. 623. 14 Cox V. Walker, 26 Me. 512 ; see Bockes v. Hathorn, 78 N. Y. 227. 15 Wright V. Bundy, 11 Ind. 402 ; generally Hays ?'. Galio!i G. St. A Coal Co. 2J Ohio St. 33-1 ; compare Alabama L. Ins. Co. v. Pcttv/ay, 24 Ala. 561 ; see also Shelden v. Bennett, 44 Mich. G34. 16 Bockes v. Hathorn, 73 N. Y. 224. 17 BrinkerhoCf v. Wemple, 1 Wend. 474. 18 Boyden v. Parlridge, 2 Gray, 193. 19 Macv V. Nantucket, 121 Mass. 351 ; and see Norton v. Boston, U'J Mass. 194. 20 McAllister v. Plant, 54 Miss. 117; Richeson v. Ryan, 15 III. 13; and see Conwav i\ Roane, 10 Ark. 242 ; Nichols v. Campbell, 10 Gratt. 565. 21 Mauldin v. Armistead, 14 Ala. 707 ; generally Powell v. Knox, IS Ala. 363. 22 Cobb V. Edmondson, 30 Ga. 31 ; Dumas v. Bobbins, 43 Ala. 54S ; but see Bumpass ?•. Richardson, 1 Stewt. 17 ; compare Cartwright v. Gardiner, 5 Cush. 273 ; Warland v. Colwell, 10 R. I. 370. 23 Adams v. Leland, 7 Pick. 63; see Bumpass v. Richardson. I Stewt. 17 ; and compare Warland v. Colwell, 10 R. I. S71 ; see also McDougal V. Carey, 33 Ala. 536. 24 Gibbons v. Gentry, 20 Mo. 472. 25 Oliver v. Crawford, 1 Mo. 183. g 33. Trustess, actions against. — Altliotigli the trustee of an express trust may sue alone, it niav be seriously doubted whether he can be siied alone in an action relating to the trust 1:H TBUSTEES. § 33 piDperty.i When an action is brought against a naked trustee ' Ticeniing trust property, the cestui should be joined as dcfcud- it."^ and generally to a suit agaiust trustees to enforce the exe- rtion of a trust, the cestui^ claiming present interest dii'ectly posed to those of the plaintiff should be joined as partiis fcudaut.^ An action may be maintained (with the consent the State) against the trustees of the ]!tIin:ie.>ota Hospital for iusane, to determine the title to State lands held by them.* When a creditor cl.iims in opposition to a deed of trust made by his debtor, and seeks to set it aside on the ground that as to him it is fraudulent and void, he may proceed against the trustee who holds the legal title without joining the cestui que trust.^ In a proceeding to set aside a deed made by one, since deceased, to a trustee for the wife of the grantor, the trustee must be joined as defendant, otherwise the legal title will not b3 divest-'d.° A proceeding against trustees for a fraudulent breach of trust is an exception to the rule that in a suit against trustees all must be made parties J In an equitable proceeding the representative of a deceased trustee may bo joined v."ith the survivor when the breach occurred prior to the death of the joint trustee.*^ When an assignment is made by a debtor to a trustee for the benefit of creditors, the trustee is personally liable for neglect resulting in the loss of a dobt of the trust estate;'* so the trustee is personally liable for breach of duly iu disposing of trust funds.i" When a building contract is entered into by the trustees under a will, they are personally liable to the contractor if it is regarded as a personal contract, and is not binding upan the estate. ^^ When a person receives money as trustee, and for the benefit of a third person, he is liable, if he fails to pay it over, iu an action for money had and received. 12 T;Yhen property has been assigned by a debtor to a trustee to sell and divide the proceeds pro rata among the creditors, one creditor cannot, after the property has been sold, maintain an action for an accounting and for payment of his lyro rata share, ^^ the trustee is liable only for one final account, to which all interested persons should be parties;'* after a lapse of twenty years it is too late to object at the hearing that § 33 "WHO MAY SrE AND BE SUED. 102 other cestuis were not made parties. ^^ The maker of a deed of trust on account of his continuing liability to the creditors, and of his resulting trust, is entitled to have an account from the ti'ustee, and in a bill for that pui'pose need not make the secured creditors pai'ties.^'' So the cestui may call the trustee to account for trust funds, without making the person a party, with whom the trustee has seen proper to divide the trust fuud.i' If one trustee after accepting the trust voluntarily permit i his co-tmstee to take the management of the trust, and the possession and control of the trust funds, both are answer- able.i** The Statute of Limitations is not a bar to a suit against the trustee of an unclosed trust, which relates to the trust property ; ^^ but if the trust be closed the right may be in- voked. 2" When a fund is in the hands of a trustee which he is bound to distribute to different persons in unascertained pro- portions, all interested should be made parties to a suit to re- cover the same ; but when the sum that each is to receive has been ascertained by a proceeding binding upon the trustee, each person entitled may maintain a separate action for his share. 21 In ejectment the only questions which arise with regard to the title are as to its validity at law. 22 If B. place money in the bands of X. to purchase lands for A., a bill to enforce the per- formance of the trust may be maintained in the name of the cestui que trust, the trustee being made a defendant. ^^ 1 Dillon V. Bates, 30 Mo. 299. 2 Grr.ves v. Steel, 4 Greene, 377. 3 Sears'?'. Plardv, r20 Mass. 523 ; generally Micb St. Bank v. Gard- ner, 3 Gray. :^0S ; Galclwell v. Taggart. 4 Peters, 203 ; Ciark v. Keyburn, 8 Wall, old ; see Voorhis v. Gamble, 6 Mo. App. 2. 4 St. Paul & Chicago By. Co. v. Brown, 24 Miss. 572. 5 Tucker v. Zimmerman, 61 Ga. 601 ; Rogers v. Rogers, 3 Paige, 380 ; and compare Winslow v. Minn. & P. Ry. Co. 4 Mimi. 316. 6 Erishman v. Erishman, 53 Mo. 367 ; and see Fletcher v. Collier, 61 Ga. 553. 7 Cunningham r. Pell, 5 Paige, 612; generallv Van Dyck v. Mc- Quade, 57 How. Pr. 70 ; Hun v. Cary, 82 X. Y. 70. 8 Lortove i\ Scott, 6 Bans. 278 ; and see Bloodgood v. Mickle. 15 Abb. Pr. 107 ; generally King v. Talbot, 40 X. Y. 83 ; S. C. King v. Talbot, 50 Barb. 479. 9 Rovall V. McKoiizie, 25 Ala. 363 ; and see "Winn v. Crosby, 52 How. Pr. 175. 103 ASSIG>'EES. ? 34 10 Jam PS V. Cowing, 17 Hun, 257, 11 Morgan v. Stevens, 6 Abb. X. 0. 362 ; generally Austin i', ^.lunro. 47 N. Y. 364 ; Xew v. XicoU. 73 X. Y. 130 ; Duvall v. Craig, 2 AVlieat. 5o. 12 Catkin v. Birehard, 13 Mich. 110 ; and see Spencer r. Towles, 13 :.tich. 10. 13 McPherson v. Parker, 30 Cal. 4.>'3. 14 McPherson v. Parker, 30 Cal. 450 ; Bailey v. Bergen, 67 N. Y. •■V47. 15 Munford v. Murray, 6 Johns. Ch. 10. 16 Torullnson r. Clay well, 4 Jones Eq. 320'; generally Patton i\ lioncini, 6 Ired. Eq. 206. 17 Felton y. Long, 8 Ired. Eq. 225 ; compare Fletcher v. Collier, 61 (Ja. 653. 13 Royall i\ McKenzie, 25 Ala. 374 ; Monell v. Monell, 5 Johns. Ch. 2'1 ; Munford v. Murray, 6 Johns. Ch. 16. 19 West r. Sloan, 3 Jones Eq. 105 ; compare Atty.-C;en. r. Old South Soc. 13 Allen, 4D5. 20 Whedbee r. Whedbee, 5 Jones Eq. 394. 21 Gen. Mut. I?is. Co. v. Benson, 5 Duer, 174 ; and see Hitchcock i>. IJnsly, 17 Hun, 557. 22 Doe V. Atkinson, 63 X. C. 210; and see Miller r. Atkinso:'., 03 X. C. .>40. 23 Fleming v. Holt, 12 W. Va. 152 ; and see Culbertson t- . Matsou, 11 :,ro. 4:!.^ ^ 34. Assizor and assignee, actions by. —Personal prop- erty in the adverse possession of another who claims it as Lis own cannot be transferred by sale even by the real owner ; he has bnt a right of action against the possessor, which is not the subject of a legal transfer. ^ An action at law npon a chose not assignable at common law must be prosecuted in the name of the assignor for the use of the assignee.^ In such action the interests of the assignee will be protected from the inter- ference or control of the assignor.^ In many cases the right thus to sue will be attended with the condition that the assignor bo indemnified against costs.* Tlie debtor after notice of the assignment may do no act to prejudice the rights of the assignee, 5 but if the whole interest be assigned may by express promise become directly liable thereon to an action by the assignee in his own name.^ In equity the rule is different, the real party in interest must maint.un the action.^ As a general rule a party complainant will not be permitted to continue to prosecute a pending suit after ho has parted with liis interest 2 34 WHO MAY SUE AND BE SUED. 104 ill the siTbject-matter thereof. ** By statute, however, the action mr.y bo continued in the name of the assignor,** or the assignee may be substituted as complainant.^" A debtor h not liable to B2parate suits by the assignor and assignee of an account at the same time ; if the assignee has an undoubted riglit to sue, the assignor cannot maiatain an action therecm in his own name.^^ A plainti:!' is the real isarty in interest under the Code ; if he has a valid transfer as ag linst the assignor, and holds the legal titlo to the demand, ^'-^ f.:e mere fact that the transfer is color- able only as between the parties is no defense, ^^ even if he is liable t:) another as a debtor upon his contract for the collection. i* An assignment of a part of a demand irf void at law, and cannot be enforced by the assignee without the consent of the debtor ; ^^ but he may in equity maintain suit thereon even without such consent, jDrovided all parties in interest are joined in the action. i*^ When the assignee of a pretended demand was in- duced to pay money in consideration of the assignment by the false and fraudulent representations of the assignor that the demand was valid, ho may recover the money so i^aid in assumpsit under the common counts. ^^ A mere stranger who volr.ntarily pays money upon a mortgage, and fails to take an assignment but allows the mortgage to be canceled, cannot afrerwai'ds come into equity, and iu absence of fraud, accident, or mistake have the mortgage reinstated and himself substi- tuted in the place of the mortgagee. ^^ The contractor or his assigns are the only persons authorized to maintain an action to enforce the lien of an assessment on a lot for the improve- ment of a street in San Frnncisco.^^ A mechanic's lien and demand may be assigned, and the assignee may sue in his own name, 20 Y7hen the estate of a bankrupt has been transferred to the assignee, the latter is the only person to maintain an action upon claims and demands due the estate, ^^ and the fail- r.re to sue for the term of two years will not enable a creditor tJ eue in his oxvn name, 5^^ If the assignee sell a chose in action belonging to the estate, the purchaser may maintain an action thereon in the name of the assignee.''''* A foreign assignee can- not maintain an action in his own name in local courts relative 103 ASSIGN-EES. I 34 to the property of tliG estate, pai'ticiilarly if the rights of resi- dent credit jrs would thereljy te ftfiected.'^* After the fiduciary character of the assignee has eeftsed, ftfld he has heen dis- charged, he cannot maintain an actios for the trust funds. '^^ When A. gave X. a promi>soiy note as coflaldefdtion, and to induce X. to sign and enter into a composition agfeetnetit of B. with hi.s creditors, the amount evidenced hy said note being iu excess of the amount stipulated by said composition hold, A. could not recover back the amount paid to a hona fide holder of the note from X., such agreement being a fraud upon the composition creditors."^ One of several individual creditors who have become parties to aa assignment may maintain an action of covenant broken against the assignee without joining the other creditors; the claim of the creditor is several and not joint.-' 1 McGoon V. Ankeny, 11 111. .>53 ; and see Gilbert 7'. Holmes, &5 111, 5.55; compare Roger WilUaius Ins. Co. v. Carringtou, 43 ZyU^b. 253; Prica V. Talley, 16 Ala. 25; Hali v. Robinson, 2 Comst. 2.55. 2 Labaume v. Sweeney, 17 Mo. 154 ; Park v. Toledo C. S. & Det. Ry. 41 Mich. 3.55; Varuey v. Bartlett, 5 Wis. 278; and see Skinner ?>. Lomes, 14 Mass. 107; Chapin v. Vt. & Mass. Rv. Co. 8 Grav, .576; Armsby v. Farnam, 16 Pick. 321; Guthrie v. White, 1 Dall. 26S; Mc- Kinney v. Alvis, 14 111. 34 : Pric? v. Talley, 18 Ala. 25; Mt. Olivet C-.^m. Co. ;•. Stubert,2 Head, 120; Johnson v. Irby, S Hnmph. 6-54; see also Mims V. Swartz, .37 Tex. 14; Spencer v. Woodbjrv, 1 Minn. 106; com- pare Heifer r. Alden, 3 Minn. :335: Elkinton v. Fenuimore, 13 Pa. St 173; Kerr v. Bank of Chilicothe, Wright, 737. 3 Belton v. Gibbon, 17 X. J. (7 Halst.) 77; Gordon v. Drury, 20 X. H. 3.5:?; and see Creighton v. Hyde P.-irk. 6 Bradw. 274; Luht v. Stevens, 24 Me. 535 ; Deaver v. EUer, 7 Ired. Zq. 24 ; Sloan v. Somers, 14 ^'. J. L. 512. 4 Gordon v. Drury, 20 IST. H. 3.S4 ; Creighton v. Hyde Park, 6 Bradw. 274 ; Smith v. Wooding, 20 Ala. S23. 5 Creighton v. Hyde Park, 6 Bradw. 274 ; and soo Lunt r. Stove':3, 24 Me. 535; Dyer v. Homer, 22 Pick. 25fi; St. John r. Charles, 105 Mass. 262 ; IIowclI v. Medler, 41 Mich. 642 ; generally Clark v. Parlzer. 4 Cush. 36;5. 6 Simonds v. Pierce, 51 Vt. 460 ; Folsom v. Belknap Co. M. P. I. Co. 30 X. H. 240 : Mowry t'. Todd, 12 IMl-SS, 2S4 ; Vose v. Treat, 5-> Mo. 3&;i; compare (hauvin v. Labargo, 1 Mo, 3.7; see also McPec'.c v. Moore, 51 Vt. 271 ; Burrows v. Glover, 108 Mr.ss. o25. 7 Varney ?'. Bartlett, 5 Wis. 27S; and see Bakey?-. Bend. Z TL±x. Ch. .50i); Newsom v. Newsom, 5 Ired. Eq. 125; generally Miller ?•. Whittier, 'il Me. 20!) ; Carpenter v. Robinson, 1 Holmes, 67 ; Wal!:er ;•. Brooks, 125 Mass. 241 ; Gaston v. Blum, 14 Conn. 347. 8 Towusend i-. Carpenter, 11 Ohio, 22 ; Varacy v. Bartlett, 5 Wis. 278. 9 Cutler v. Waddingham, 3;^ Mo. 2S4. ^34 "VTHO MAY SUE AXD BE SUED. 106 10 Dougherty v. Smith, 4 Met. (Kj-.) 280 ; Cantrell v. Hewlett, 2 Bush, 312, 11 Peck V. Dodds, 18 K"ev. 204 ; and see Castuer v. Sumner, 2 Minn. 47 ; compare Johnson v. Irby, 8 Humph. 654. 12 Sheridan v. Mayor, 68 N. Y. 32 ; Stone v. Frost, Gl N. Y. G15 ; and S'^e Russell v. The Minnesota Outfit, 1 Minn. '67; Long v. Heinrich, 4 ) Mo. 604 ; Swails v. Coverdill, 17 Ind. 338 ; Mills v. Murry, 1 Xeb. .5^7; Martin v. Ihmsen, 21 How. 395; Mims v. Swartz, 37 Tex. 14; Thompson v. Railroad, 6 Wall. 138; Devine v. Martin, 15 Tex. 30; Park V. Toledo C. S. & Det. Rv. Co. 41 Mich. 355 ; Wheatlev v. Strobe, 12 CaJ. 98 ; Gradwohl v. Harris, 29 Cal. 154 ; see also Bank of Com- merce ?'. Bogg, 44 ISIo. 15 ; Ogden v, Slade, 1 Tex. 14 ; Langdon v. Thompson, 25 Minn. 511 ; Allgoever v. Edmunds, 63 Barb. 580. 13 Slieridan v. Mayor, C8 N. Y. 32 ; Mewherter v. Price, 11 Ind. 199. 14 Allen v. Brown, 44 N. Y. 231 ; and see Durgin v. Ireland, 14 X. Y. 326 ; Castnor v. Sumner, 2 Minn. 47 ; Gradwohl r. Harris, 2;) Cal. 155 ; Carpenter v. Johnson, 1 Xev. 3.33 ; Peters v. St. Louis I. M. Ry. Co. 24 Mo. 587 ; generallj' Smith v. Chic. & N. Western Ry. Co. 23 ^^'is. 269 ; Abrams v. Curlton, 74 N. C. 535. 15 Creighton v. Hvde Park, 6 Bradw. 275 ; and see Raines v. United States, 11 Ct. of CI. 650 ; Oelrichs v. Artz, 21 Md. 530 ; compare Rohe V. Huth, 14 Cal. 406 ; West v. Foreman, 21 Ala. 402 ; see also Leese i\ Slieerwood, 21 Cal. 164 : Mandeville v. Welch, 5 Wheat. 232 ; Shauk- land V. Washington, 5 Peters, 392 ; Lawery v. Steward, 25 N. Y. 341 ; generally Secor v. Sturgis, 16 N. Y. 554 ; Smith v. Jones, 15 Johns. 229 ; Herriter r. Porter, 23 Cal. 386 ; Palmer v. Merrill, 6 Cush. 285 ; Badger V. Titcomb, 15 Pick. 412 ; Ingrahm v. Hall, 11 Serg. & R. 82 ; Cassel- berry v. Forquer, 27 111. 172 ; Knight v. W. & M. Ry, Co. 1 Jones, 3^ ; Martin v. Hayes, 1 Busb. 424. 16 Grain v. Aldrich, 38 CaL 518 ; and see Randou v. Barton, 4 Tex, 292. 17 Burton v. Driggs, 20 Wall. 136 ; generally Pipkin ?-. James, 1 Humph. 326 ; Lyan v. Annable, 4 Conn. 354 ; D'Utricht r. Melchor, 1 Ball. 429. 18 Guv V. De Uprev, 16 Cal. 199 ; compare Carr v. Caldwell, 10 Cal, 384 ; Garwood v. Eldridge, 2 N, J. Eq, 148, 19 Bars v. Lapidge, 52 Cal. 481 ; and see Dyer -!'. Barstow. 50 Cal. 654 ; Taylor v. Palmer, 31 Cal. 249 ; compare St. Louis etc, v. Rudolph, ;i6 Mo', 465 ; New Orleans v. Elliott, 10 La. An. 59. 20 Rogers v. Omaha Hotel Co, 4 Xeb. 59. 21 Glenn V v. Langdon. 98 U. s. 20 ; Trimble v. Woodhead, 11 The Reporter, 553 ; generally Harris v. Cornell, 80 111. 56 ; Wheeler v. Wheedon, 9 How. Pr. 299 ; Jenkins v. Greenbaum, 95 111. 18 ; Langdon V. Thompson, 25 Minn. 511 ; Rossman v. McFarland, 9 Ohio St. 377. 22 Trimble v. Woodhead, 11 The Reporter, 553, 23 Hart v. Stone, 30 Conn. 97 ; and see Camack v. Bisquay, 18 Ala. 28G ; Wilcox v. Toledo & Ann. A, Ry. 43 Mich. 585. 24 Upton r. Hubbard, 28 Conn. 284 ; Perry v. Barry 1 Cranch C. C. 204; generally Booth v. Clark, 17 How. 337; Hoyt v. Thompson, 5 N. Y. 332 ; Milne v. Moreton, 6 Binn. .3.59 ; see Metcalf v. Yeaton, 51 Me. 200 ; Smith v. Railroad Co. 23 Wis. 270. 25 MorriJl v. Dunn, 39 Me. 281. 26 Solinger v. Earle, 82 N. Y. 396. 27 Mitchell v. Kendall, 45 Me, 235 ; and generally Card v. Wal- bridge, 18 Ohio, 411. 107 ASSIGN-EES. ^ 35 § 35. Sane continued— Actions npon promissory notes.— In an action by the assignee of an unnegotiablo note or bond he should style himself in the ■writ " assignee," etc. ; if he does not he cannot amend. ^ He can only maintain action against his immedi-ito assignor at law, but in equity a remote assignor may be reached. ^ A promise in -writing by one firm to pay a specified sum of money on a day certain to another firm -which has a common partner is not a promissory note until after assignment, when as between the maker and the assignee the latter is considered as the payee, and may maintain an action in his own name.^ When a note is given fo a partnership it should bo transferred by indorsement in the name of the firm, but under the pro-visions of the Code, if indorsed by one partner in his o-wn name, the indorsee may sue thereon.-* A person tD -whom a note ^ and guaranty ^ has been transferr, d by verbal assignment becomes invested -with the right of property in the chose in action, and as the real party in interest may maintain an action thereon in his o-wn name. An action upon a promissory note should be brought in the n^me of him -who has the legal title ; thus -where a note payable to A. or bearer becomes the property of B., yet no delivery of the note has in fact been made, suit to collect the proceeds must be com- menced in the name of A.^ If, however, the note had been delivered, the holder is invested -with the legal title, and may sue, even though it be proved that A. be dead, that the note belonged to him at the time of his death, and belonged to his estate.** When a negotiable promissory note is transferred by proper indorsement; the indorsee becomes thereby invested -with the legal title, and is the proper person to sue thereon.'' The plaintiff need have no beneficial interest in the note sued on,^'' unless there is some defense against the other alleged equitable owners or beneficiaries, ^^ if he has the right of possession, and is the legal owner, he may sue. 12 A plaintiff is the real part}- in interest under the Code if he has a valid transfer as against the assignor, and holds the legal title to the demand ; ^^ the posses- sion of a note is prima facie evidence of o-wnership, and the holder mav maintain an action thereon, 1* whether it be indorsed § 35 WHO MAY SUE AND BE SUED. 108 or not;'^ and so the holder may maintain an action iipon a note transferred not by indorsement or delivery, but by a sep- arate ^vriting.^s When notes are transferred fcr purposes of collection the bolder may maintain an action tbcrecn in bis own namc;^^ and so also if transferred mere'y as collateral secux'ity,;!*^ so the bolder may sue all or any of the parties to a bill or noto at bis option.^" The bolder of a note, payable in specific chattLls transferred generally by indorsement, may maintain an action thereon in bis own name.^" The bolder of a note regularly transferre d by indorsement is the proper per- son ti sue thereon, 21 and nothing short of mcdajider, or notice thereof will enable the maker or an indorser to defeat the action. 22 A bill of exchange may be drawn payable to the order of the eirawer, and when indorscel the bolder may sue the acceptor in bis own name. 2^ A debt cvidenceel by a note which is lost may be assigned so as to enable the assignee to sue thereon in liis own name ; 21 the payee, however, prima facie is the owner ; 23 in such suit a thirel person who claims to be the rightfrj owner may assert bis rights by intervention. 2*> A con- tract under seal, though in the form of a promissory note, is not a negotiable instrument, unless expressly maele so by statute ; 2' if indorsed, as between the indorsee and his imme- diate inelorser (the payee), the liability is the same, as a rule, as the indorsement of a negotiable instrument, but not as to subsequent hold:rs, unless the indorsement is "to the indorsee or order ; or the inelorser expressly promises to pay the holder ; 28 but the bolder by indorsement as the real party in interest may maintain an action thereon in bis own name.2« The assignment of a note secured by a mortgage in eepiity car- ries with it the security, and the assignee may maintain an action to enforce the lien ;^" but where B., a citizen of Massa- chusetts, dieel there, having in bis possession a bond auel mort- gage executed by Z., a citizen of South Carolina, upon laud in the latter State, it was held that the administrator of the estate of B., appointed in Massachusetts, could not assign the bond and mortgage so as to enable the assignee (a resident of South Carolina) to sue thereon. ^^ The assignee of a note given for 103 assig>t:es. ? 35 the rent of laud may maintain an action for money had and received against tlie pai'chasc-r of the crop who bought with L, sepe of the lien, and has sold the same, and received the pio- -cde th the sale.-^^ xhe assignee of a note given for the pur- I tio no ce of real pi-operty may, after acquiring the legal title feriqe payee, maintain an action to foreclose a title bond exe- cuted to the maker by such payee, for a conveyance upon pay- -lent of the note;^-* but the assignment of a note given in ursuance of a contract does not necessarily transfer a right of .jtion for a breach of the contract, or enabla him to base a : laim thereon in order to cancel a set-ofiF against the note, nor vvill an action on the note by the assignee be a bar to an action for breach of the contract by the assignor.^* "^Tien the right of action is barred by the Statute of Limitations, or a discharge in insolvency, a new promise by the maker of a note to tl:e payee enures to a subsequent indorsee, and he may maintain an action thereon. ^^ When one without the use of force or threats compelling his will does or aids iu doing an act that by law is made a criminal offense, he cannot maintain an action to recover back money or property so paid ; thus if A. executes his note to X. for the purpose of compounding a crime, which note A. is subsequently forced to pay to a ho)ia fide holder, he cannot maintain an action against X. to recover the amount so paid.^^ When the real owner of a promissory note assigned it to a ficticious person, and brought suit, and recovered judg- ment thereon in his name, upon a bill to enjoin the collection of the judgment the real owner should be permitted (in absence of fraud) to be made a party and defend the suit.^" 1 Thompson v. 3Ialone, 13 Rich. 29.3 ; generally Xolson v. John- son, IS Ind. 3;G. 2 "Weaver ?•. Beard, 21 Mo. 156 ; and see Tucker v. Shiner. 24 Iowa. 3:a ; but see Hamilton v. McDonald. IS C'al. 129: generally Harris r. Johnston, .3 Cranch. 311 ; Johnson v. Henderson, 76 N. C. 228 ; Helfvjr V. Alden, 3 Minn. :j.32. 3 Murdock v. Caruthers, 21 Ala. 788 ; generally Lacy r. TLe Bruce. 6 Ala. 9a5 : Banks v. Mitchel. 8 Yerg. 112 ; Woods v. Ridley. 11 Humph. 194 ; but see Hill v. MePherson, 15 Mo. 206. 4 Ala. Coal Min"g Co. v. Brainard, 35 Ala. 479 ; see Halstead v. Shetlard, 23 Ala. 569. 5 CJreen r. Marble. .37 Iowa, 96 ; AVillard v. Moies, 30 Mo. 142 ; see also Ciark v. Brown, 70 Ind. 405; compare Morris v. Poillou, 50 Ala. Parties — 10 g 35 WHO IMAY SUE AND BE SUED. 110 406 ; Chilton v. Cabiness, 14 Ala. 449 ; Crain v. Paine, 4 Cush. 485 ; Brush V. Curtis. 4 Conn. 315 ; but see Waters v. Millar, 1 Dall. 370 ; see also Ross V. Smith, 19 111. 172. 6 Green v. Marble, 37 Iowa, 96 ; and see Bennett v. Pound, 23 Mo. 539. 7 Hathcock v. Owen, 44 Miss. 802 ; and see Wimbish v. Solt, 26 Tex. 675 ; Caldwell r. Lawrence, 84 111. 161 ; Spofford ?•. Norton, 126 Mass. 534 : Allen v. Pannell, bl Tex. IGS ; compare Marr v. Plummer, 3 C4reenl. 75 ; Gage v. Johnson, 20 Me. 433. 8 Butler v. Robertson, 11 Tex. 143. 9 Lohnian v. Cass Co. Bank, 87 111. 616; Caldwell v. Lawrence. 84 111. 16 1; Bradford i\ Bucknam, 12 Me. 16 ; Gage v. Johnson, 20 Me. 438. 10 Garner v. Cook, 30 Ind. 331 ; Spoflford v. Xorton, 126 Mass. 5"3 ; Logan r. Cassell, 88 Pa. St. 290 ; but see Bean v. DolliflF, 63 Me. 231. 11 Ticonic Bank v. Baglev, 68 Me. 249 ; Allen v. Pannell, 51 Tex. 16S ; Kknn v. Buckner. 30 La. An. 680. 12 Perrine v. Thompson, 17 Blatchf. 19 ; Hays v. Hathorn. 74 N. Y. 486 ; Klein v. Buckner, SO La. An. 6S0 ; Freeman v. Falconer. 44 X. Y. Sup. Ct. 132 ; Cochran v. Doll, 32 Cal. 90 ; compare Williams v. Nor- ton, 3 Kan. 298. 13 Freeman v. Falconer, 45 N. Y. Sup. Ct. 384 ; see Rohrer v. Tur- rill, 4 Minn. 410 ; McCann v. Lewis, 9 Cal. 246 : Castner v. Sumner, 2 Minn. 47 ; compare Williams?'. Norton, 3 Kan. 298 ; TerrvCo. Supt. i\ Sexton, 48 Ala. 324 ; Carpenter v. Miles, 17 Mon. B. 602 ; Pearson r. Cummings, 23 Iowa, 345. 14 Garner v. Cook, 30 Ind. 332 ; McCaun v. Lewis, 9 Cal. 246 ; see Stevens v. Souger, 14 Ind. 342. 15 Garner v. Cook, 30 Ind. 332: Wilson v. Clark, 11 Ind. 385; see Pearson v. Cummings, 2S Iowa, 345. 16 Morris v. Poillon, 50 Ala. 406 ; compare Brush v. Curtis, 4 Conn. 315 ; and see McClain v. Weidemeyer, 25 Mo. 366 ; Rockwood v. Brown, 1 Gray, 263. 17 Beattie v. Lett, 28 Mo. 556 ; Simmons v. Belt. 35 Mo. 466 ; gen- erally Hancock v. Ritchie, 11 Ind. 48 ; compare White t'. Stanley, 29 Ohio St. 428 ; but see Abrams v. Cureton, 74 N. C. 526 ; Newson ?•. Russell, 77 N. C. 278 ; generally Poorman v. Mills. 35 Cal. 120 ; King V. Fleece, 7 Heisk. 27G ; Wells v. Schoonover, 9 Heisk. 805 ; Worthing- ton 1'. Greer, 17 Mon. B. 747 ; Cummings v. Morris, 25 N. Y. 527 ; Weeks v. Medler. 20 Kan. 65 ; Garner v. Cook, 30 Ind. 331 ; compare Dann v. Norris, 24 Conn. 337 ; Nichols v. Gross, 26 Ohio St. 425: Rob- inson V. Wilkinson, 33 Mich. 300 ; Royce v. Nye, 52 Vt. 374. 18 Overall v. Ellis, 32 Mo. 326 ; generallv Carper v. Munger, 62 Ind. 481 ; Hunter v. Levan, 11 Cal. 12 ; Dulles v. De Forest, 19 Conn. 201. 19 Page V. Snow, 18 Mo. 127 ; compare Bullitt v. Thatcher, 5 How. (Miss.) 689. 20 Elkinton v. Fennimore, 13 Pa. St. 173 ; generally Reed v. Ingra- ham, 4 Dall. 169 ; compare Rogers v. Union Stone Co. 130 Mass. 583; and see Draper v. Schreiber, 15 Mo. 602. 21 Clawson v. Cone, 2 Handv, 67 ; generally McCann v. Lewis, 9 Cal. 246 ; Price v. Dunlap, 5 Cal. 484 ; Ross v. Smith, 19 Tex. 172 ; Canefox r. Anderson, 22 Mo. 347. 22 City Bank of Nev,- Haven v. Perkins, 29 N. Y. 563. 23 Hart v. Shorter, 46 Ala. 454. 24 Long V. Constant, 19 Mo. 320. Ill ASSIGNEES. g 36 25 Prior v. Dunlap, 5 Cal. 485. 26 Stich V. Dickinson, 38 Cal. 609. 27 Ifelfer v. Alden, 3 Minn. 3:^5; and see Burkhead v. Brown. 5 Hill, W6 : Carroll v. Still, 13 8. C. 432 ; compare Mvers v. York etc. Ry. Co. 43 Me. 233. 28 Heifer v. Alden, 3 Minn. ;53.5. 23 Miller v. Henrv, 54 Ala. 121 ; Sullivan v. Hellains, 6 8. C. i34 ; compare Carroll r. Still, 13. S C. 4:C :» Holmes v. French, 70 Me. 344 ; generally Guest v. Byington, 14 Iowa, 31. 31 Dial V. Gary, 14 S. C. 578 ; see Pond ?'. Makepeace, 2 Met. 116 : Stevens v. Gavlor, 11 Ma.ss. 263 : compare Peterson i\ Chemical Bank, 32 N. Y. 4') ; Harper v. Butler, 2 Peters, 233 ; see also McCarty v. Hal , 13 Mo. 481. 32 Westmoreland v. Foster, 60 Ala. 453 ; and generally compare Strother v. Steamboat, 11 Iowa, 60 ; Butt v. Ellett, 19 Wall. 547. 33 Guest V. Byington, 14 Iowa, 31. 34 Wetmore v. Neuberger, 44 Mich. 363. 35 Smith v. Richmond, 19 Cal. 476 ; and see Way v. Sherry, 6 Cush. 241 ; Watkins r. Stevens, 4 Barb. 170. 36 Haynes 7'. Rudd, 83 N. Y. 252. 37 Triplett v. Vandergrift, 8 Mon. B. 421. I 36. Contracts under seal, bond, covenants, etc. — No one but a party to a contract under seal can maintain an action thereon ;i he has the legal interest therein.- The rule is con- clusively settled that in a deed inter partes, that is to say, if it is expressed to be made between certain psrsons named in it as executing it, although a covenant be expressed in the instru- ment for the benefit of a third person, an action can only be brought in the name of one of the parties, and not in the name of such third person.^ Where an official bond is taken in the name of the commonwealth, suit may be maintained in its name for the use of the person injured;* in all suits upon official bonds and bonds payable to the State, the relator must be the party in interest.^ In Iowa it has been declared by statute that when a bond or other instrument given to any psrson is intended for the security of particular individuals, suit may be brought thereon in the nameof any person intended to be secured, and who has sustained injury by reason of a breach thereof; under this law it was held a person might maintain a suit upon a bond intended for his benefit, even though his name was not mentioned therein.*" In California § 36 WHO MAY SUE AND BE SUED. 112 an action mnst be prosecuted in the name of the real party in interest.'' Thus a bond made to the people of the State of Cal- ifornia may bo sued upon by the person injured by a breach thereof.*^ X., a warehouseman, executed a bond to the com- monwealth of Kentucky, binding himself to collect and pay over to the owner the money arising from the sales of tobacco stored with him ; held whether the instrument was good as a statutory bond or not, it was good as a common-law bond, and that plaintiff as the real party in interest had the right to sue upon it in its own name for a breach of its condition.** In Illinois a constable's bond conditioned to pay "each and every parson who may be entitled thereto," .... being a good stat- utory bond, should not be sued upon in the name of the people, but action should be commenced in the name of the parson sustaining the injury.^" B. the owner of land conveyed the same to X., who executed a mortgage back to B. to secure the purchase price, and also conditioned to pay a debt and mortgage upon the same premises, due from B. to A., this being a promise to a third person, suit upon the latter promise cannot be maintained by A.^^ At common law assumpsit would not lie by the assignee of a bond to recover the amount due him, except upon the express promise of the debtor to pay him-i'-^ But by statute in several States the assignee is the legal owner and may sue in his own name.^^ When the legal title is in the governor, and the statute permits suit to be brought "at the cost and charge of any party injured," and the bond stipu- lates for moneys collected to the proper party .... or his assigns, suit may be maintained theron in the name of the gov- ernor to the use of the assignee.^* Where separate interests are held by several persons under the same policy of insurance they may be iinited by assignment of the instrument in one person who may bring suit ther^^on.^^ When an instrument is executed jointly to several, one of the joint payees or obligees, or his assignee, may sue in the name of all.^^ A contract in writing to convey land may be assigned by verbal agreement, ^^ and the assignee may enforce a specific performar:ce in his own name.i*^ A suit by the assignee of one of two obligees en a 113 ASSIGNEES. § 36 Lond is not a bar to a subgequent suit by the same person for a tpccitic performance of the contract brought after he has ac- quired the interest of both obligees.^** When a lessor assigns the rent of certain premises, the assignee may sue for the rent nbsequently accruing, although the reversion be not as- -Cned; -'•' the assignee of a lease may maintain an action in his \ n name for rent subsequently accruing ; '^^ but the assignment li'Hild be in writing, a mere "indorsement of the lease" is ijot sufficient -2 Covenants, real, run Avith the land, and if Ijioken the right of action for the breach is in the transferee of tlie covenantee ; "^ but a covenant against encumbrancers being in presierdi does not run with the land, and cannot be as- signed so as to enable the assignee to sue in his own name."'* When a deed is made by X. to A. and delivered, and subse- quently with the consent of both X. and A. the name of A. was erased and that of B, substituted as grantee, held B. could not inaintaiu an action for breach of the covenant of seizin con- tained in the deed."^^ In equity the equitable owner of notes secured by a mortgage is the proper person to maintain a suit to foreclose the same.^^ The assignment of a bond secured by mortgage carries with it the security, but the assignment of the security does not necessarily carry wit'.i it the debt.'-^^ When thirteen persons made a joint a:.d several note to three of their number, and secured the same by mortgage, the three 80 secured were held entitled to foreclose the security. 28 A mortgage made to secure two notes payabl* to different persons may be foreclosed by the holder of eitlier note, the other being made a defendant. 2** A mortgagor of personal property may maintain an action for damages to his reversionary interest, even though he has no! the right to immediate possession.^" If by the t'jrms of the mortgage he is entitled to take possession, whenever he may deem it necessary to his safety or the security of the debt, he may maintain replevin against one who takes the same in defiance of his rights. ^^ After the law day has passed, being entitled to the immediate possession of the mort- gaged chattels, he may maintain detinue therefor against the mortgagor.^- A creditor who has proceeded to judgment g 36 WHO MAY SrE AND BE SUED. 114 against his debtor, and lias his execution returned unsatisfied,^^ may file his bill in equity and reach the property and effects of his debtor not subject to execution at law : he may file his bill in his own name and for his own benefit,^* or join with other creditors standing in the same situation in a suit for their common benefit ; ^^ or he may file a bill in behalf of himself and such other creditors as may choose to come in under the decree.^'' A justice judgment, when the amount is sufficient to give the court of chancery jurisdiction, is as well entitled to the aid of that court as the judgment of a court of record.*^ This equitable relief may be obtained in two classes of cases — for the purpose of removing obstructions fraudulently or in- equitably interposed for the pui'pose of preventing a sale on the execution, ^^ and to obtain satisfaction of a debt out of property that cannot be reached by execution at law,^" if the fund is only accessible to a court of chancery, and cannot be reached at law.-*" Where the debtor is deceased, and especially so if the estate is insolvent, creditors may resort to chancery in the first instance, without having obtained a judgment at law ; " but as a general rule a court of equity will not interfere at the instance of a general creditor before judgment, to set aside a voluntary conveyance of property alleged to have been made for the purpose of defrauding creditors, and restrain by injunc- tion the sale or other disposition of property in fraud of his creditors.*^ In one case the equitable relief sought vests upon the fact that execution has been issued, and a specific lien has been acquired upon the property of the debtor by its levy, but that the obstruction interposed prevents a sale of the property at a fair valuation, it is to remove the obstruction and thus enable the creditor to obtain a full price for the property that the suit is brought.''"* In the other case the court, when its aid is invoked, looks only to the execution, and the return of tlie officer to whom the writ was directed, the execution shows that the remedy afforded at law has been pursued, and is the highest evidence of the fact, the return shows whether the remedy has been effectual or not, and upon that jioint it is conclusive.** A judgment creditor has no right of action against a purchaser at 115 ASSIG>'EES. ^36 execution sale to recover damages for breach of the contract of sale ; *^ the officer is the proper person to maintain the action ; BO also for a wrongful taking from the officer, after prox)erty has been levied upon and while the levy is in force/** At com- mon law the assignee of a judgment could not sue thereon in his own name because such a chose was not assignable ; but courts have long recognized his beneficial interests and per- mitted him to sue in the name of the person holding the legal title, ■•' and now by statute in many States he may sue in his own name.-*** 1 Flynn r. No. Am. L. Ins. Co. 115 Mass. 449 ; La Grange ?•. Chap- man, 11 Mich. 500; Thomp.sou r. Thompson, 4 Heisk. 1"JG ; Holmes r. Fisher, 13 N. H. 11 ; How v. How, 1 N. H. 51 ; Gov. of Arkansas v. Ball. 1 Hemp. 545 ; Sproul v. Lawrence, 33 Ala. 6^ ; Agnew v. Leath, 63 Ala. 346 ; Hager v. Phillips, 14 HI. 250. 2 Northampton »-. Elwell, 4 Gray, 81 ; Johnson v. Filley, 12 Met. 163 ; compare Ct. of Probate v. Sprague, 3 R. I. 210. 3 Hager r. PhUlips. 14 HI. 2-50 : Harris v. Plant, 31 Ala, 6:» ; Smith V. Emery. 12 N. J. L. 60 : compare National Bank r. Segur, 39 X. J. L. 175 : Dick )•. Reynolds, 4 Martin N. S. 529 ; Duchamp r. Nicholson. 2 Martin N. S. 674. 4 Commonwealth i'. Teal, 14 Mon. B. 24 ; see Lane v. Ka.sev, 1 Met. 413. 5 Jackson r. Bounds, 59 Ind, 120 ; Neal v. The State, 49 Ind. 51 ; Chipley v. Albea. 8 Jones, 205 ; AVoodworth r. Woodworth,70Mo. 601. 6 HujitLngton v. Fisher, 27 Iowa, 277 ; and see Moorman r. Collier, 32 Iowa, 139. 7 Baker v. Bartol, 7 Cal. 553. 8 Taafife v. Rosenthal, 7 Cal. 518 ; Curiae v. Packard. 23 Cal. 195 ; compare MacBeth v. Van Sickle, 6 Nev. i:i5 ; but see Agnew r. Leatli, 6.3 Ala. 346. 9 Lane v. Casey. 1 Met. 413 : but see Agnew v. Leath, &i Ala. 346 ; compare Court of Probate v. Sprague," 3 R. I. 210 ; Duchamp v. Nich- olson, 2 Martin N. S. 674 ; Dick v. Reynolds, 4 Martin N. S. 520. 10 Magner v. Knowles. 67 III. 326 ; but see Roberis v. Parlin, 81 111. 2:31 ; Hager v. PhUlips, 14 111. 260. 11 Gautzert v. Hoge, 73 III. SO : Mellen ?•. Whipple. 1 Grav, 320 ; Booth V. Conn. Mut. L. Ins. Co. 43 Mich. 301 ; Prentice v. Brunhall, 123 Mass. 293. 12 Dubois 1". Doubleday, 9 "Wend. 317 ; Hudson r. Reeve, 1 Barb. 91; generally Kinniken i-. Dulaney. 5 Har. fDel.) 385; Edgell r. Tucker. 40 M"o. 526 : Heifer r. Alden, 3 Minn. -365 ; compare Carroll r. Still, 13 S. C. 4.32 ; Myers v. York etc. Ry. Co. 43 Me. 2:32. 13 Robb »•. Parker. 3 S. C. 70 ; and see Bennett v. McGrade. 15 Minn. 134 ; Waterman )•. Frank. 21 Mo. 110 : generally Skinner v. Bedell, 32 Ala. 47 : Mut. Pro. Ins. Co. v. Hamilton. 5 Sneed, 274 ; Moorman v. Collier. 32 Iowa, 139 ; Warner v. Wilson, 4 Cal. .313 ; Snodgruss v. Krenkle, 49 How. Pr. 122 : MUler v. Heurv, •>! Ala. 121. ^36 WHO MAY SUE AND BE SUED. 116 14 Matthews v. Bailey, 25 Miss, 36 ; compare Hawkins r. Common- wealth, -i Marsh. A. K. 1177 ; Howe i'. Williams, 7 Mon. B. 202 ; Meier V. Lester, 21 Mo. 112 ; Moorman v. Collier, 32 Iowa, 139 ; generally James r. The .State, 4>J Miss. 433. 15 Mercantile Ins. Co. v. Holthaus, 43 Mich. 424 ; generally Mnt. Protec. Ins. Co. v. Hamilton, 5 Sneed, 274. 16 Wright V. Lemore, 10 Yerg. 235. 17 Currier r. Howard, 14 Gray, 513; and see generally Tnttle v. Bebee, 8 Johns. 153 ; Ford v. Stuart, 19 Johns. 344. 18 Currier ■!'. Howard, 14 Gray, 513; and see Ensign r. Kellogg. 4 Pick. 5 ; Owen v. Frink, 24 Cal. 177. 19 Knott V. Stephens. 5 Oreg, 240. 20 Kendall v. Garland, 5 Cush. 79 ; generally Heard v. Lockett, 20 Tex. 163. 21 Heard i'. Lockett. 20 Tex. 163. 22 Chapman v. McGrew. 20 111. 103 ; Beezley v. Jones, 1 Scam. 34 ; McLott i\ Savery. 11 Iowa 325; Moorman v. Collier. 32 Iowa, 139; see generally Maruey v. Byrd, 11 Humph. 95 ; Thomas v. Cox. 6 Mo. 507. 23 Nunnallv v. White, 3 Met. (Ky.) 594 ; and see White r. Whitney. 3 Met. 81 ; Gunter v. Williams, 40 Ala. o68. 24 PiUsburv v Mitchell, 5 Wis. 20 ; Morrison v. Underwood, 20 N. H. 371 ; compare Hall v. Dean, 13 Johns. 106 ; Foote v. Burnet. 10 Ohio 330; and see generally IS! oonan v Ilsley, 21 Wis. 143; Brooks i'. Water Lot Co. 7 Ga. 103. 25 Hilmert v. Christian. 29 Wis. 107. 26 Irish v. Sharp. 89 111. 263 ; Pease ?'. Warren, 29 Mich. 10 ; :\rartin V. McBevnolds. 6 Mich. 72 ; Hahn v. Huber, 83 111. 243 ; Ord v. McKee, 5 Cal. 516 ; see Catlett v. Bacon, 33 Miss. 280. 27 Cleveland v. Cohrs, 10 S. C. 224 ; see Pease v. Warren, 29 INIich. 10. 23 McDowell v. Jacobs. 10 Cal. 389. 23 Bankm v. Major, 9 Iowa, 298. SO Googius V. Gilmore. 47 Me. 16. 31 Welsh V. Sackett, 12 Wis. 254 ; and see Newman v. Ty meson. 13 AVis. 174. 32 Mervine v. White, 50 Ala. 389. 33 Ballentine v. Beall, 3 Scam. 206 ; McCaffrey r. Hickey, 66 Barb. 491 ; Brlttian r. Quiet, 1 Jones Eq. 329 ; Goncelier v. Foret, 4 Minn. 17; Hyde v. Chapman. 33 Wis. 399 ; Scott v. Ware. 64 Ala. 181. 34 Bigeiow v. Andress, 31 111. 335 ; Annin v. Annin, 24 N. J. Eq. 188 ; Marsh v. Burroughs, 1 Woods, 467 ; co npare McDonald v. Ateii, 1 Ohio St. 293 ; contra, Scott v. Ware, 64 Ala. 182. 35 Ballentine v. Beall, 3 Scam. 206 ; Marsh v. Burroughs, 1 Woods. 467 ; Ewing v. Ferguson, 33 Gratt. 5.58 ; Scott v. Ware, 64 Ala. 182. .36 Ballentine v. Beall, 3 Scam. 206 ; see Goncelier v. Foret, 4 Minn. 17. 37 Steere r. Hoagland, 39 111. 266 ; Dix v. Briggs, 9 Paige, 606 ; Bailey 1'. Burton, 8 Wend. 345. 38 Gates v. Boomer. 17 Wis. 472 ; Hyde v. Chapman, 33 Wis. 397 ; Robert v. Hodges, 16 X. J. Eq. 302 ; Swayze v. Swayze, 9 2^. J. Eq. 280. 117 ASSIGNEES, \ 37 33 Beak V. Bnrditt, 1 Paige, 305 ; Marsh v. Burroughs, 1 Woods, 467 ; Dunphy v. Kleinsmilh. 11 Wall. 615 ; Robert i'. Hodges, 16 X. J. Eq. '^- ; Jones r. Greeu, 1 Wall. .'Wl. 40 8ee Mittnight v. Smith, 17 X. J. Eq. 261 ; Deveney v. Mahonev, 23 N. J. Eq. 2-18. 41 Steere v. Hoagland, 39 III. 266; Brittian v. Quiet. 1 Jones Eq. 329 ; Offutt V. King, 1 McAr. 314 ; compare Hills »•. Sherwood, 43 Cal. 392 ; Sucklev r. Rotchford, 12 Gratt. <>5 ; Dobbins v. Halfacre, 52 Miss. .t62 ; Estill r. McCentic, 11 W. Va. 405 ; Pratt v. St. Clair. 6 Ohio. 22-^ : McDonald c. Aten, 1 Ohio St. 293 ; contra, Scott v. Ware, 64 Ala. l^l ; compare Lonaillier v. Castille, 14 La. An. 77s ; Neda v. Fontenot, 2 La. An. 78;J. 42 Oberholser r. Greenfield, 47 Ga. 533 ; Robert v. Hodges, 16 X. J. Eq. 30:5 ; Swayze v. Swayze, 9 X. J. Eq. 280 ; Weil v. Lankins. 3 Xeb. 386; and see Craig v. Webster, 36 Me. 504; compare Mittnight r. Smith, 17 X. J. Eq. 261 ; Deveney v. Mahoney, 23 X. J. Eq. 24s. 43 Jones v. Green, 1 Wall. 3;12, 44 Jones r. Green, 1 Wall. a32 ; Weil v. Lankins. 3 Xeb. 386 ; Beek V. Burdett, 1 Paige, :«)8 ; McElwain v. Willis, 9 Wend. 55;*; compare Robert v. Hodges, 16 X. J. Eq. 302 ; S\%-avze v. Swavze 9 X. J. Eq. 280; and see Davis v. Dean, 25 X. J. Eq. 436 ; Tarbelt v. Griggs, 3 Paige, 208 ; Durant v. SuperA'isors, 26 Wend. 75 ; McCartney v. Bost- wicK, SI X. Y. 5:3 ; Steere r. Hoagland. 3j 111. 266. 45 Galpin v. Lamb, 29 Ohio St. 534 ; Armstrong v. Vroman, 11 Minn. 222 ; Gaskell v. Morris, 7 Watts & S. 38 ; Chappell v. Dann, 21 Barb. 24. 46 Aiisonio B. & C. Co. v. Pratt, 10 Hun, 444 ; Howland ?•. Willits', 9 X. Y. 173. 47 James v. The State, 49 Miss. 433 ; Lee v. Gardiner, 26 Miss. 537 ; State V. Miller, 11 Ired. 235 ; Harger v. McCullough, 2 Denio, llO ; Dyer V. Burnham, 48 Me. 299 ; see Goodrich v. Stevens, 116 Mass. 171 ; Steele V. Thompson, 62 Ala. 327. 43 Wood /•. Decoster, 66 Me. h\h ; Eaton v. Lambert. 1 Xeb. 339 ; Kilgour V. Ratciiffe, 2 Martin X. S. 2% ; but see Johnson r. Martin, 54 Ala. 272. \ 37. Contracts made for tlie benefit of tliircl persons.— When a contract is made expressly fur the Lcneti'- uf a third person, such third person mav maintain his action upon the promise.^ And in many cases it has been held thai an action could be maintained by either the promisee or the person for whose benefit the promise is made.- Prior to the provisions of the Code the person for whose benefit a contract was made could in equity maintain an action upon the promise.^ Now the person with whom or in whose name a contract is made for the benefit of another may bring an action on the conti'act without joining the beneficiary, but this docs not take the right from the real party in interest to bring the suit in his own name.^ It seems to be the well-settled rule that where, in case § 37 WHO MAY SUE AND BE SUED. 118 of simple coniracts, one person makes a promise to another for the benefit of a third, the latter may maintain an action npon it thougli the consideration does not move from -him.^ And the rule is the same where one receives money or property to the I1S3 of a third person, although no express promise be proved.'' In Wisconsin and some other States the rule has been extended so that now if a contract be entered into by X., with B., upon sufficient consideration, to do some act for the benefit of A., oven though the contract be under seal, A. may sue for a breach of the agreement.^ If, however, A. is a mere stranger to the contract, and only incidentally benefitted thereby, he cannot sue upon the contract, even though one of the contracting par- ties might enforce it against the other. ^ Where A. procured a IDolicy of insurance upon his life from X., an insurance company, which iDclicy was made to C, and was payable to him, A. can- not sue X, to avoid the policy on the gi'ound of fraud ; and even though the premiums were paid by him with his own money he cannot recover it back in an action for money had and received.'-' Where B. procures a policy of insurance from X., loss, if any payable to A., as his interest may appear, either A. or B. may sue in case of loss,^" Where B. sells property to X., who thereupon, at the request of B., executes his note to A. in payment therefor, A. is the proper party to sue thereon. ^^ 1 Allen V. Thomas, 3 Met. (Ky.) 199 ; Phillips v. Bush, 15 Iowa, 64 ; Sailly V. Cleveland, 10 Wend. 162; Barker v. Bucklin, 2 Denio, 47 ; Brewer v. Dyer. 7 Cush. 340 : Nutter v. .Sydenstricker, 11 \V. Va. 547 ; compare Larned v. Carpenter, 65 111. 544 : Phillips v. Van Shaick, 37 Iowa, 235. 2 Steene v. Aylesford, 18 Conn. 253 ; see Allen v. Thomas, 3 Met. (Ky.) 199 ; Smith v. Smith, 5 Bush, 632 ; Rogers v. Gosnell, 51 Mo. 469 ; Stroun V. Hartford F. Ins. Co. 33 Wis. 657, 3 Clapp V. Lawton, 31 N. H. 104. 4 Smith V. Smith, 5 Bush, 633 ; Rogers v. Gosnell, 51 Mo. 469, 5 Rogers v. Gosnell, 5S Mo. 589; Barboro v. Occidental Grove, 4 Mo. App. 433 ; Kollock v. Parcher, 52 Wis. 399 ; Barker v. Bucklin, 2 Denio, 47 ; Putnev v. Farnham, 27 Wis. 190 ; Brewer v. Dyer, 7 Cush. 340 ; Bohiuian v. Pope, 42 Me. 96 ; Ball v. Benjamin, 56 111. 106 ; Steele r. Clark, 77 111. 473 ; Bristow v. Lane, 21 111. 196 ; Kimball v. Noyes, 17 Wis. 720 ; Mason v. Hall, 30 Ala. 601 ; Shotwell ?-. Gilkey, 31 Ala. 727 ; Exc. Bank v. Rice, 107 Mass. 41 ; contra, Exc. Bank v. Rice. 98 Mass. 288; Pipp7>. Revnolds, 20 Mich. 92; Clapp v. Lawton, 31 Conn. 103; Treat v. Stanton. 14 Conn. 451 ; compare Mellen v. Whipple, 1 Gray, 329 ; Dow V. Clark, 7 Gray, 200. f 119 ASSIGXEES. g 3B 6 Weston v. Barker, 12 Johns. 278 ; Caniegie v. Morrison, 2 Met 111 ; Perry v. Swasy, 12 Cush. 40 ; Kountz r. Holthouse, 85 Pa. St. 2:^7 ; I oinpare Bartlett v. Matsoii, 1 Mo. App. J57 ; Durham v. Bi.schof, 47 1 I'l. 211 ; Durham v. Hall. 67 Ind. 124. 7 McDowell V. Lacy, 3-5 Wis. 175; Rogers r. (iosnell.Sl Mo. 469: Van Shaick r. Third Ave. R. Co. SS N. Y. :UC, ; Cosier v. Mayor ol Albany. 43 N. Y. 411 ; see Thompson v. Thompson. 3 Lea. 126 ; contra, Millarri t'. Baldwin. 8 Graj'. 4S6 ; compare Patterson v. Triumph Ins. I I Co. 64 Me. 50.'i : Somes 7-. Equitable Safety Ins. Co. 15 Mass. o^tl ; Gaut- I I zert V. Hoge. 7^ 111. 30 : Millen v. Whipple, 1 Gray, 317 ; Booth v. f Conn. Mut. L. Ins. Co. 43 Mich. 239. 8 Lake Ont. Shore R. v. Curtiss, 80 X. Y. 222. 9 Xo. Am. L. Ins. Co. v. Wilson. 11; Mass. 542 ; Ins. Co. r. Wright. :;", Ohio St. 5-i7 ; see Campbell v. New Eng. Mut. L. Ins. Co. 98 Mass. >2 ; Flynn v. X. Am. Life Ins. Co. 115 Mass. 449. 10 Williams v. Ocean Ins. Co. 2 Met. 306 ; Somes v. Equitable Safety Tiis. Co. 12 Gray, .532 ; see Patterson v. Triumph In.s. Co. 64 Me. 503; ( liamberlin v. N. H. Fire Ins. Co. 55 N. H. 2.58 ; Westchester F. Ins. 'o. ?•. Foster. 90 111. 122; Hammond v. Queen Ins. Co. 50 Wis. 24;i ; Brunswick Sav. Inst. v. Ins. Co. 68 Me. 314 ; Roussell v. Ins. Co. 41 X. Y. Sup. Ct. 282 ; Pitney v. Glenn Falls Ins. Co. 65 X. Y. 12 ; New- man V. Ins. Co. 17 Minn. 126 ; also Ins. Co. v. Davenport, '.i7 Mich. 612 ; Strohn V. Ins. Co. 33 Wis. 657 ; compare Berthold v. Ins. Co. 2 Mo. App. 314. 11 Stevens v. Songer, 14 Ind. 342. § 38. Generally in actions for torts. —As a general propo- sition, subject it may be to some exceptions, any person in the peaceful possession of property may sue and recover for any wrongful damage it may sustain against any person but the true owner, and even against him if the possession is rightful and coupled with an interest, or he has a qualified property therein. 1 The sale of the absolute interest in a personal chattel by the tenant of the particular estate, or by a stranger, instead of liis particular interest, is an injury for which the reversioner may recover.^ One who has repudiated a contract for fraud may maintain an action for damages against the wrong-doer.^ When the law imposes a penalty for the violation of a duty of which one part goes to the person prosecuting, the other to the State, an action may be brought in the name of eitlier.-* An action of trespass de honis asportatis is properly brought in the name of the person who was the owner of the goods at the time of the trespass, although he may have sold them at the time the action w^as commenced.^ "When an action of trover is brought in the name of the assignor for the use of the assignee, and the evidence shows that the conversion took place after the assign- § 38 WHO MAT SUE A>-D BE SUED. 120 ment, the pleadings cannot be amended so as to authorize a recovery.*" The equitable assignee of a note and mortgage of personal property may maintain an action in the name of the assignor for the conversion of the property mortgaged." "When trees ujDon land are severed from the freehold and carried away, they become personal property, and an action of trover may be maintained for their value, ^ even t!;oagh the conver- sion occurred in another State.** The right of action may bo assignee! so as to enable the assignee to maintain an action thereon in his own name.^" As a rule, under Code practice, all such rights of action for a tort as would survive to the personal representative may be assigned, so as to enable the assignee to assert his interest in his own name ; ^^ but rights of action for torts which die with the porson are not the subject of assign- ment.^-^ "When the prop3rty of B. insured by A., an insurance company, was negligently destroyed by fire communicated by a locomotive owned by X., a railroael company, it was held that payment of the amount of the loss by A. to B. amounted to an equitable assignment of the right of recovery against X. for the negligence, and that A. miglit maintain an action thereon in the name of B.-^ In an action for maliciously burning plaintiffs building, neither the fact nor amount of defendant's liability is affected by payment of a loss by insurers of the building, nor by the agi'eement of plaintiff to prosecute the suit for their benefit.^ - A cause of action for malicious prosecution is not assignable even after verdict.^^ "When the exclusive right to use but not to make a patentee!, article within a speci- fieel territory has been assigneil, the assignee may maintain an action against an infringer in his own namc.^*' One who has been improperly subjected to damage by means of gar- nishee process against his elebtors may maintain an action for the injury.^' The owner of lands through which a water course runs has the right to have the same kept open, and to discharge therein the surface water which naturally flows thereto, ancl may increase the volume of water or accelerate the flow in a reasonable use of his own premises.^** He can- not, however, concentrate and elischarge by means of artificial 121 ASSIGNEES. I 38 arrangements into the stream surface water in quantities be- yond its capacity, J^ nor can he turn aside the water from other streams and. force the same through his water course to tlie damage of the owner below.2" As a general rale when any act is prohibited by law, and the violation theieof is made a mis- demeanor, any injury to the person of another caused by such violation is the subject of an action. 21 When a plaintiff seeks to recover for an injury caused by the negligence of another, he must himself be without fault. 22 1 C. & X. W. Ry. Co. r. Shultz, .5-5 111. 422 ; Am. Exp. Co. r. Hag- sard, 37 111. 470; Barker v. Miller, 6 Johns. 196; :Miller v. Adsit, 16 AVend. ;i3.5 ; Barker v. Biuninger, 14 X. Y. 281 : Gibbs v. Chase, 10 Mass. 128 ; Miller v. Baker, 1 Met. 30 ; Stambaugh v. HollabauErh. 10 serg. & R. 361 ; .see also Hays v. Miller, 6 Hun, .322 ; Havs v. Miller, 70 X. Y. 172 ; Triscony v. Orr, 49 Cal. 616 ; Fickle v. Railroad Co. bi Mo. 222 ; Shaw v. Railroad Co. 57 Mo. 153. 2 Williams ?•. BrasselL 51 Ala. 338 ; Arthur r. Gayle, 33 Ala. 2.53 ; oompare Ingraham v. Dunnell, 5 Met. 123 ; Putney r. Lapham, 10 Cush. 232. 3 Warren v. Cole, 15 Mich. 272. 4 Ry. Co. V. Foster, 43 111. 480 ; see Phillips v. Bevans. 23 X. J. L. 374. 5 Boynton v. Willard, 10 Pick. 166 ; generally Holly r. Huggsford, 5 Pick. 76 ; Langdon i-. Thompson, 25 Minn. 511 ; Axford v. Mathews, 43 Mich. 329. 6 Slodder v. Grant, 28 Ala, 420 ; generally see Chase r. Chase, 1 Paige, 199 ; Hanford r. Xichols, 14 Conn. 327. 7 Crain v. Paine, 4 Cush. 4S6 ; generally Clapp r. Shepard. 2 Met. V-'f); Cha.se v. Chase, 1 Paige, 199; compare Axford v. Mathews, 43 3Iich. :i29. 8 Whidden v. Seelye, 40 Me. 2.55 ; Tyson v. McGuineas, 25 Wis. 660 ; IMoody V. Whitney, 34 Me. 564 ; Pierrepont v. Barnard, 5 Barb. 371 ; .Sampson v. Hammond, 4 Cal. 184. 9 Tyson v. McGuineas, 25 Wis. 660 ; Whidden v. Seelye, 40 Me. 255 ; and see Glen v. Hodges, 9 Johns. 70. 10 Tyson v. McGuineas, 25 Wis. 660 ; Grant v. Smith, 26 Mich. 203 ; Webber v. Quaw, 46 Wis. 118 ; generally Conkliu r. Hawthorne, 2j Wis. 476. 11 Tyson v. McGuineas, 25 Wis. 660 ; Jordan v. Gillen. 44 X. H. 426 ; generally Butler v. X'. Y. & EtieRy. Co. 22 Barb. 112 ; Purple v. Hud- son R. Ry. Co. 5 Duer, 77 ; McKee r. Judd, 12 X. Y. 625 : Xorth r. Turner, 9 Serg. & R. 24S ; Hall v. Robinson. 2 Comst. 2;w ; and see Smith V. Kennett, IS Mo. 155 : Final v. Backus, 18 Mich. 231 ; Finn r. Coibett, :« Mich. 319 ; compare O'Xeall v. S. C. Ry. Co. 9 Rich. 46.5 ; Sandford v. Xichols, 14 Conn. .327 ; Morrison v. Deaderick, 10 Humph. 342 ; C. A; A. Ry. Co. v. Maher, 91 111. 313 ; see also McArthur v. G. B. 6 M. C. Co. 34 Wis. 153 ; Carter r. Wilson, 61 Ala. 43.5. 12 Final r. Backus. 18 Mich. 2-31, authorities supra. 13 Hart v. Western Ry. Co. 13 Met. lOS. 14 Hay ward r. Cain, 105 Mass. 214 ; Clark v. Wilson, 103 Mass. 220. Parties — 11 g 88 WHO MAY SUE AND BS SUED 122 15 Lawrence v. Martin, ^ Cal. 176 ; g and cannot be pursued in an action at law.^^ 1 The Siren, 7 Wall. 153 ; The Davis, 10 Wall. 18 ; Goldsmith v. Rev. Cutter, 6 Oreg. 252 ; Briggs v. Light Boats, U Allen, 162 ; United States V. Clark, 8 Peters, 444 ; Elliott v. Van Voorst, 3 Wall. Jr. 301. 2 Case v. Terrell. 11 Wall. 190 ; Carr v. United States, 08 U. S. 437 ; compare Dunn v. E. Co. 8 S. C. 231. 3 Goldsmith v. Rev. Cutter, 6 Oreg. 253 ; see also United States v. Clarke, 8 Peters, 44S ; Dunn. v. Railroad Co. 8 S. C. 231. 4 U. S. V. State Bank, 96 U. S. 85 ; Bank of Boston, 10 Ct. of CI. 542. 5 Mason v. United States, 14 Ct. of CI. 5d ; see also Peck v. United States, 14 Ct. of CI. 113. 6 Elliot V. Van Voorst, 3 Wall. Jr. 301 ; see Fifth Xat. Bank v. Long, 7 Biss. 502. 7 Ambler v. Auditor Gen. 38 Mich. 750 ; Langford v. King, 1 Mont. 38 ; Fisk v. Cuthbert, 2 Mont. 5J5 ; People v. Talmage, 6 Cal. 2.57 ; see Railroad Co. v. Brown, 24 Minn. 575 ; People v. Miles, 56 Cal. 401. 8 Rose V. Govenor, 24 Tex. 504. 9 Green v. Graham, 29 Ala. 61 ; compare Green v. State, 53 Miss. 152 ; fetuta v. Stout, 7 Neb. 101 ; Bradford v. State, 7 Neb. 111. 10 Turner v. State, 27 Ark. 337 ; see also People v. Talmage G Cal. 253 ; Tate v. Salmon, 13 The Reporter, 144, 11 Miars v. Turnpike Co. 11 Ohio, 274. 12 State V. Burke, 12 The Reporter, 590 ; Tate v. Salmon, 13 The Reporter, 144 ; Moore v. School Trs. 19 111. 86 ; Printup v. R. Co. 45 Ga, 367 ; Green v. State, 53 Miss. 152 ; Nougues v. Douglass. 7 Cal. 74 ; Railroad Co. v. Randolph, 24 Tex. 329; St. Paul & Chi. R. Co. v. Brown, 24 Minn. 573 ; Ambler v. Auditor Gen. as Mich. 750 ; Weston V. Dane, 51 Me. 464 ; and see State v. Bank of Tenn. 5) Tenn. 396 : Clements v. North Carolina, 77 N. C. 142 ; People v. Miles. 56 Cal. 401 : State V. Graham, 23 La. An. 402 ; McCauley v. Kellogg, 2 Wood, 13. 13 McCauley v. Kellogg, 2 Woods, 18. 14 Dunn v. Railroad Co. 8 S. C. 231. ^T^\. Weary v. State Univ. 42 Iowa, 336 ; see Regents t-. McConnell 5 Neb. •J23. g 41. Counties, suit3 "by. —At common law counties have no inherent right to sue, but derive their power from the legis- 127 COr>-TIES, CITIES, AND TOWNS. \ 42 lature, and must pursue tlieir remedies in the manner bv law prescribed.! The people of the county are not a corporation, nor are they recognized in law as capable of suing or being sued.^ Under the Constitution of Georgia a county can only maintain an action in its own name.*^ Suits for the recovery of school money arising upon an official bond of a co-treasurer, given to the Stato for the safe keeping of the school fund, is properly brought i:i the name of the State upon the relation of the proper county-,-' all ordinary suits for the recovery of the school funds of a county are properly brought in its name.^ In a suit upon the official bond of a county officer, if it i.i alleged that the money for which the officer is in default belongs to the county, the action is properly brought in its name.'' Money paid to a county officer, for services as such, and to which he is not entitled, may be recovered back by the county by suit in it3 name.' 1 Co. of McDonough v. Marliham. 19 111. 159 , Anderson v. State, 23 miss, 474 ; Halleubeck r. Hahn, 2 Xeb. 397 ; Donaldson v. San 3Ii^iiol Cj. 1 Now IMex. 2G4 ; Goodenow v. Commrs. 11 ilinn. 41 ; com- pare St. Lake Co. v. Golding, 2 Utah, o24. 2 Smith V. Xyers, 15 Cal. U. 3 Bennett v. Walker, 64 Ga. 330 ; compare Maury Co. v. Lev.-L", Co. 1 Swan, 2 r) ; Smith v. Myers, 15 Cal. U ; Supervisors v. Hall, 42 Wis. 63 ; Co. of McDonough i-. Markheim, ID 111. 150. 4 State V. Sappington, 63 Mo. 455. 5 Lafayette Co. v. Hixon, Ql Mo. .582 ; Stat<3 v. Sappington, 03 Mo. 455 : see Barry Co. v. iMcGlothlin, 19 Mo. 303 ; compare Shelby Co. v. Sicimond.s, 33 Iowa, 346. 6 Mendocino Co. v. Morris, .32 Cal. 145 ; Greenville Co. ". Bunion, 9 S. C. 3 ; S-cramento v. Bird, 31 Cal. 63 ; State v. Cooper, 53 Miss. 624 ; compare St. Lake Co. v. Goldlng, 2 Utah, 325 ; People r. IngorsoU, 53 X. Y. 13. 7 Grant Co. v. Sels, 5 Oreg. 243 ; see People v. Ingersoll, 53 X. Y. 13. I 42. Countiss, suito against. — Counties have no capacity independent of statute of being sued ; when that capacity is conferred, the mode pointed out must be strictly pursued. ^ ^Yhen there ij no particular mode pointed out for this purpose, the suit may bo brought in the usual form prescribed i:i other cases for like demands.^ Under statute in Georgia a county can only be sued in its coi'porate name.^ When the statute prescribes that all proceedings against a county in its corporate g 42 "WHO MAY SUE A>'D BE SUED. 128 capacity shall be in the name of the Board of Supervisor.^ of such county, suit against the county of cannot be main- tained.* The action must be against the Board of Supervisors, and not against the individual members.^ When the board consists of three members, at least two of them should be made defendants in a suit to enjoin the board from purchasing prop- erty for the use of the county."^ An action at law lies against a new county in favor of one of the old counties from which it was taken for its pro rata share of the esTisting debt of the old county.' When a tax sale is void, the county is liable to i^c holder of the certificate issued on such sale for the amount paid ; « but unless paid into the treasury, a county is not liable for money paid to a county treasurer for the redemption of lands sold for taxes. « It is not liable for the acts of its Board of Supervisors in erecting a bridge over a navigable stream, nor for any consequences arising therefrom,^" nor for failure to keep the same in repair ; ^^ is not liable to an inmate of the county hospital for injuries sustained by reason of unskillful treatment received from the resident physician, nor for un- wholesome food furnished ; ^- not liable at suit of a private per- son for damages occasioned by reason of the erection of a jail near his residence, even if kept in so filthy a condition as to become a nuisance ; ^^ not liable to suit upon a claim which has been aiidited and allowed without reduction; the only remedy is mandamus. 1* Is liable for the expense of boarding and lodging a jury empanneled and kept together in a capital case by order of the court ; ^^ to a physician employed by the coroner to make a post mortem examination ; ^^ but is not liable to an attorney appointed by the court to defend a pauper prisoner d'aring a criminal prosecution ; i' nor is it liable to one who was injured thereby for negligence of its ofdcers in leaving uncovered a large opening in the passage of the court-house, or in failing to properly guard the same, even though plaintiff was a witness and brought hence under process of the court-^** A county must furnish a jail for the safe keeping of prisoners, and is liable if it does not.'"-^ 1 llock Island Co. v. (Steele, "A 111. ,544 ; Schuyler Co. v. Mercer Co. 129 COrXTIES, CITIES, AXD TOWNS. § 42 4 GUm. 23 ; Taylor r. Co. of Salt Lake, 2 rtah, 409 ; Anderson r. State, 23 Miss. 473 ; Hastings r. City & Co. of S. F. 18 Cal. 58 ; see Beaman v. Board of Police, 42 iliss. 250 ; Sutton v. Dudley, 41 Miss. 239 : Wood v. Tipton Co. 7 Baxt. 113 ; compare Boyce v. Supervisors, 20 Barb. 295 ; Taylor v. Mayor, 82 X. Y. 24 ; Donaldson v. San Miguel Co. 1 X. Mex. 265 ; Covington r. Kinney, 45 Ala. 182 ; Waitz v. Ormsbv Co. 1 Xev. 376 ; Braham v. Supervisors, 54 Miss. 364 ; AVard v. Hartford Co. 12 Conn. 404. 2 Randolph Co.'r. Hutchings, 46 Ala. 401 ; Covington Co. v. Kinney, 45 Ala. 182. 3 Bennett v. Walker, 64 Ga. 330 ; see also WOson v. Huntington, 7 Watts & S. 197. 4 County of Rock Island v. Steele, 31 111. 544 ; see Green v. Ward- woU, 17 111. 279 ; Gross v. Sioux Co. 2 Dill. 511. , 5 Magee v. Cutler, 43 Barb. 260 ; compare Trinitv Co. v. McCam- mon,25 Cal. 113 ; Wild r. Supervisors, 9 How. Pr. 316. 6 Trinity Co. v. McCammon, 25 Cal. 119 ; see also Collins v. Hud- son, 54 Ga. 27. 7 Chambers Co. v. Lee Co. 55 Ala. 536. 8 Norton v. Supervisors, 13 Wis. 613. 9 Eaton v. Board of Co. Commrs. 11 Xeb. 229 ; see also Onderdonk V. Brooklyn, 31 Barb. 505. 10 Larkin r. Saginaw, 11 Mich. 91 ; Crowell v. Sonoma Co. 25 Cal. 315. 11 Brabham v. Supervisors, 54 Miss. 364 ; Seales i'. Ordinary, 41 Ga. 226 ; Huffman v. San Joaquin Co. 21 Cal. 429 ; Kinsey v. Magistrates, 8 Jones, IS") ; Wheatley v. Mercer, 9 Bush. 705 ; compare McCullom r. Blk. Hawk Co. 21 Iowa, 413 ; Soper v. Henry Co. 26 Iowa, 269 ; Co. Commrs. v. Duckett, 20 Md. 474 ; also Granger v. Pulaski Co. 26 Ark. .39 ; White v. Bond Co. 58 111. 298 ; Chicago v. McGinn. 51 111. 267 ; com- pare Waltham i\ Kemper, 55 111. 347 ; Jefferson Co. v. Arrghi, 51 Miss. 670 ; Askew v. Hale Co. 54 Ala. 640 ; Barbour Co. v. Horn, 4S Ala. 567 ; Smoot V. Wetumpka,24 Ala. 116 ; contra. State v. Supervisors, 41 WLs. 32 ; Humphrevs /•. Armstrong Co. 56 Pa. St. 207 ; Penn Township ;-. Perrv Co. 78 Pa. St. 459 ; Krause v. Davis Co. 44 Iowa, 142 ; Moreland V. Mitchell Co. 40 Iowa, 395 ; House v. Commrs. 60 Ind. 581. 12 Sherbourne v. Yuba Co. 21 Cal. 114 ; see Fowle v. Com. Council, 3 Peters, 409 ; compare Hannon v. Co. of St. Louis, 62 Mo. 314. 13 Wehn v. Commrs. 5 Xeb. 497 ; compare Hannon v. Co. of St Louis, 62 Mo. 31.5. 14 Covington Co. v. Dunklin, 52 Ala. 28 ; Brewer v. Otoe Co. 1 Xeb. 383 ; Klein v. Supervisors, 54 Miss. 259 ; Klein v. Supervisors, 51 ]*Ilss. 878 ; compare Shirk v. Pulaski Co. 4 Dill. 210 ; Supervisors v. Ellis, 53 X. Y. 622 ; S. M. Co. v. Lane Co. 5 Oreg. 265. 15 Commrs. v. Hall, 7 Watts, 290. 16 AUeghenvr. Shaw. 34 Pa. St. 303 ; see also Sherman r. Super- visors, 30 How. Pr. 179 ; Roberts v. Pottawatomie Co. 10 Kan. 31 ; Commrs. v. Hall, 7 Watts, 290 ; Commrs. v. Holman, 34 Ind. 257. 17 Rosev V. MobUe Co. 50 Ala. 7 ; Lament v. Salabro, 49 Cal. 153 ; People I'. Supervisors, 78 X. Y. 622 ; People v. Supervisors. 2S How. Pr. 23 ; but see Gordon v. Commrs. 52 Ind. 324 ; Carpenter v. Dane, 9 Wis 276 ; Weisbrod v. Supervisors, 20 Wis. 419. 18 Commrs. v. Mighels, 7 Ohio St. 113; compare Hollenbeck v. Winnebago Co. 95 111. 153 ; and see Bigelow v, Randolph, 14 Gray, 543 ; Ward V. Hartford, 12 Conn, 406. g§ 43-44 WHO MAY SUE AXD BE SUED. 130 19 Ransom v. Gentry Co. 43 Mo. 542 ; compare Haygood v. Justices, 20 Ga. 846 ; Governor v. Justices, 19 Ga. 97 ; James v. Lincoln Co 5 Neb. 30 ; Board v. Board, 75 N. C. 341. § 43. Cities, suits by. — Au incorporatad city need not sue in the name of the inhabitants of the city, but may recover in its name of incorporation.^ An action upon a contract made with a city should be brought in its name, although the promise was made to A. B. as treasurer. 2 When land has been dedicated to the use of the public, an action of ejectment to recover its possession may properly be brought in the name of the corporate authorities of a city whose inhabitants constitute the public.^ In opening and improving one of its streets a city built a wall to sustain the street, one half of which rested upon the land of defendant; held, that the city could not recover from defendant one half the cost of building the same.-* A city may maintain an action at law to recover taxes rightfully levied for municipal purposes upon the property of a railroad company, even when it is not expi'essly so provided by law, but another remedy is given. ^ A municipal coii^orar tion cannot maintain a bill to restrain the collection of a tax levied on property within its corporate limits; tax payers only can maintain the action.*^ Upon a proper showing against two persons who claim the same office at the same time, under antagonistic apiDointments, a city may maintain a bill in the nature of a bill of interpleader.'' 1 Lowell V. Morse, 1 Met. 473. 2 Tow_%o:k1 v. Hoyle, 20 Conn. 5 ; see Boston v. SchaiTer, 9 Pick. 41S ; compare fealem v. Railroad Co. 98 Mass. 442. 3 Dummer v. Den, 20 N. J. L. 106 ; Methodist Ch. r. Hobokon, 33 jST. J. L. 16 ; H. L. tfe Imp. Co. v. Hoboken, 36 N. J. fj. »J4 : compare Xiqucs I'. Bujac, 7 La. An. .500. 4 Western Ry. Co. v, Allegheny, 92 Pa. St. 108. 5 Burlington v. V.. & M. Ry. Co. 41 Iowa. 139; Dubuque v. 111. Cent. Ry. Co. 3D Iowa, 56 ; Davenport ?•. Railroad Co. :iS Iowa, 63:^ ; see also New Orleans v. Griable, 9 La. An. 562 ; compare Rochester v. Rush, 80 N. Y. 310. 6 Waverly v. Auditor, 100 111. .355. 7 Mayor v. Flagg, G Abb. Pr. 300. § 44. Cities, suits against. — As a rule a city is not liable to be sued in a private action for the neglect of a public duty \ 131 COUNTIES, criTES, Ayj) To-vrxs. ^ 44 imposed Ly law for the benefit of the public, and from the per- formance of -which it derives no benefit or advantage, unless such action is authorized by express statute,^ Yet, if it elects to a?t in the performance of the duty, it will be held responsi- ble for a complete and perfect execution of it.^ So, if the city is charged with the duty in consieleration of valuable privileges, if it derives an emolument from the exercise of powers con- ferred, it is liable to indemnify an individual who suffers any special injuiy from a neglect of the duty, or for the negligent or unskillful exercise of the pDwers by its agznts, or for the ncgL'ct of a duty which is imposed by or results from the exer- cise of them, and in such cases the ofiBcers engaged in the execution of the powers are to be regarded as the agents of such ci.^y.^ If the powers granted are conferred for public pur- poses exclusively, they belong to the corporate body in its public, political, or municipal character ; but if the gi-ant be for private advantage and emolument, though the public may derive a common benefit therefrom, the corporation, quo ad hoc, is to be regarded as a private company, and stands upon the same footing as would any individual or boely of persons upon whom like franchises have been conferred.-* Thus in absence of express statute a city is not liable to private action for fail- ure to repair public streets.^ Nor for changing the grade.^ Nor for negligence in leaving open an excavation on a pubhc common, unless it appears that the common is used by the city for its own revenue and profit.* It is not liable for a failure to provide sufficient sewerage for each and every part of the city.^ Nor for the defect, or want of efficiency in the plan of drainage adopted ; ^ but is liable for negligencs in construction of a sewer, and failure to keep in repair and free from obstruc- tions ; ^^ and must so use it that it shall not become a nuisance.i^ A distinction is observed by the authorities between the control and use of natural streams and surface water ; the liability in case of injury resulting from ill-constructed and insufficient culverts or passage ways seems to be greater in the former than in the latter case,^^ jt is not liable for unsafe condition of public schoolhouse, provided under a duty imposed by law.^^ g 44 VTEO :may sue axd be sued. 132 Wlien a city is authorized to erect water works autl collect revenue from the exercise of powers conferred in connection therewith, it is liable, as any other corporation would be, for the negligent exercise of the powers thus conferred.''-* A city is net liable for the negligence or tortious acts of its officers, merely because it appointed them to office ;i^ but for the negligent prc- formance of a mere ministerial act or duty by such officer in pursuance of his general authority an action lies.^^ "\Miere a city wrongfully takes property from its owner for the use of a street, ejectment will lie.^^ If guo warranto is brought against a single officer of a city, the corporation is not thereby made a party.^*^ Unless the charter of an incoi-porated city, or a gen- eral law prescribes the mode and the persons by whom its con- tracts are to be made, any legal mode is sufficient ; '^ but where the officers of such city fail to follow the strict requii-ements of a statute the corporation is not bound, and a subsequent ratiii- cation will not make valid an unlawful act without the sco^^e of corporate authority. 2" A subordinate department for whom work has been done, and which has certified to the correctness of the charge, should not be j oined as a party defenelant. ^' When materials are furnished a city at its instance, the use to which they are applied cannot be consielered as a defense to an action for their price. 22 Where an assessment was made for municipal improvement and paid, and subsequently it was set aside and a reassessment made for a less sum, an action will lie to recover the eliflference.^s So if paid under an illegal ordinance,'-^* or assessment.25 Generally an action against a city should be brought in the courts of the county where it is situated. ^6 1 Detroit ?-. Blackeby, 21 INEich. lOo ; Hewiston r. New Haven, 37 Conn. -481 ; Hill v. Boston. 122 Mass. 345 ; Hannon r. fet. Louis, 62 Mo. 319 ; Richmond v. Long, 17 Gratt. 383: Hyde v. Jamaica, 27 Vt. 457 : State V. Burlington, S6 Vt. 524 ; Chidsev v. Canton, 17 Conn. 478 ; Tav- lor V. Peckham, 8 R. I. 352 : Winbigler v. Los Angeles, 45 Cal. 3*7 ; Mitchell V. Rockland, 52 Me. 110 ; Union v. Durkes, 38 X. J. L. 22 ; com- pare Eastman v. Meredith, 36 X. H. 296; Roches^^er W. L Co. r. Rochester, 3 X. T. 466 ; Weet ?•. Brockport, 16 X. Y. 172 ; Barnes v. Dist. of Columbia, 91 U. S. 540; Meares v. Wilmington. Ired. 77, Smoot V. Wetumpka,:24 Aia. 127 : Robbins r. Chicago, 4 Wall. 670. 2 Mayor v. Furze, 3 Hill. 615 : Strader v. Cincinnati, Handv, 44S ; Hannon r. St. Louis. 62 Mo. 317 : Mayor v. Thompson. 2!) Ark. .573 ; and S^P Li-Jl^ r^ock '■• Willis, 27 Ark. 576 ; compare Eastman v. :kreredith, c6 X. H. 300 ; Rochester W. L. Co. v. Rochester, 3 X. Y. 467 ; Yv^ec-t v. 133 cou>-TiES, crrrzs, .vxd to-^v^ns. ^ 44 Brockport, 16 X. Y. 172 ; Clemence r. Auburn, 63 X. Y. SUd ; Meares V. Wilmiugton, 9 Ired. 77 ; Mitchell v. Rockland, 52 Mo. 123 ; and authorities previous note. 3 Aldrieh ?•. Tripp, 11 R. I. 142 ; generallv Oliver v. Worcester, 102 Mass. 502 ; Petersburg v. Applegarth, 28 Gratt. M3 ; W. S. F. Soc v Phuideiphia, 31 Pa. St. 17S ; Bailey r. Mayor. 3 Hill, 539 ; see Weight- man V. Washington, 1 Black, 50 : Smoot r. Wetumpka, 24 Ala. 121. 4 Bailey v. Mayor, 3 Hill, 539 : Oliver v. Worcester, 102 Miss 49D ; see Petersburg v. Applegarth, 2S Gratt. 343; Richmond r. Lo::g. 17 Grart. 3S] ; V\\ S. F. Soc. r. Phllidelphia, 31 Pa. St. 183 : MaxmUlian v. Mayor, 62 X. Y. 1G3 ; Smoot v. Wetumpka, 24 Ala. 121. 5 Taylor r. Peckham, 8 R. I. .3.50 ; Detroit v. Blackeby, 21 ilich. 116; generally Lansing v. Doolau, 37 Mich. 153 ; Ciiidsev v. Canton, 17 Conn. 47^; Bloijett r. Boston. 8 Allen, 238; Mower r. Leicester. 9 Mass. 25 J : Reed v. Belfast, 20 Me. 243 ; Stinson v. Gardiner, 42 Mo. 252 ; Pray v. Mayor, ?2 X. J. L. 3 5 ; Bell v. West Point, 51 :Miss. 2S3 ; com- pare Durant V. Palmer, 2J X. J. L. 51-3 ; Barnes r. Di.st. of Columbia, 91 U. S. 543 ; Weightman r. Washington, 1 Black, 51 ; Smoot v. Wet- umpka, 24 Ala. 117 : Carpenter v. Cahoes. 81 X. Y. 24 ; Sewall i\ Cahoes, 75 X. Y. 40 ; Cleveland v. St. Paul, 18 Minn. 28G ; Moore v. Minneapolis, 19 Minn. 30; Furncll v. St. Paul, 20 Minn. 119 ; Hatch V. Mavor. 82 X. Y. 433 ; Grove v. Fort Wayne, 45 Ind. 429 ; Chicago v. Brophy, 79 111. 278. 6 Pontiac v. Carter, 32 Mich. 165 ; Lee v. ilinneapolis, 22 Minn. 13 ; Denman v. Jackson\-illo, 13 Fla. 54S ; Union v. Durkes, 38 X. J. L. 22 ; Mayor r. Willison, 50 Md. 144 : but see Crawford v. Delaware, 7 Ohio St. 470; compare Meares f. Wilmington, 9 Ired. 76; Youngstown v. Moore, 30 Ohio St. 143 ; Cincianati v. Penny. 21 Ohio St. 507 ; compare authorities, 2 71. 7 Oliver v. Worcester, 102 Mass. 502 ; see also Pittsburgh v. Grier. 22 Pa. St. 63. 8 Mills V. Brooklyn, 32 X. Y. 495 ; Little Rock v. Willis, 27 Ark. 577 ; Carr v. Xorth Liberties. 35 Pa. St. 327 ; Lynch v. Mayor, 76 X. Y. 62; compare Aurora v. Reed, 57111. 30. 9 Child V. Boston, 4 Allen, 51 ; Little Rock v, Willis, 27 Ark. 577 ; see Von Pelt i\ Davenport, 42 Iowa, 313; compare Rochester W. L. Co. r. Rochester, 3 X. Y. 4G5. ■ 10 Mavor v. Furze, 3 Hill, 614 ; Lord v. Mayor. 5 X. Y. 374 ; Xims i'. Mavor, 5J X. Y. 503 ; Child v. Boston, 4 Alleii, 5;3; Emery v. Lo%vell, 104 Mass. 13 ; Merrifield v. Worcester, 110 Mass. 221 ; Clark v. Peck- ham, 9 R. I. 472 : Simmer v. St. Paul, 23 Minn. 40) ; Banton v. Syra- curo, :>3 X. Y. 51 ; compare Cincinnati '•. Penny, 21 Ohio St. 507 ; and see GUman v. Laconia, 55 X. H. 130 ; McCarthy v. Syracuse, 46 X. Y. 196. 11 Clark r. Peckham, 9 R. I. 466 ; Van Pelt v. Davenport, 42 Iowa, 311; Proprietors etc. r. Lov.-ell, 7 Grav, 225; Haskell v. Xew Bed- ford, lOS Mass. 212 ; Jacksonville v. Lanibert. 62 111. 520. 12 Mavor v. Thompson, 29 Ark. 574 ; Little Rock v. Willis, 27 Ark. 577; Rochester W. S. Co. v. Rochester, 3 X. Y. 460; McCluro r. R.^d Wing. 23 Minn. 100; see Van Pell r. Davenport, 42 Iowa, 313; com- pare Sellick V. Hall, 47 Conn. 270 ; also compare Wheeler v. Worcer- ter, 10 Allen, 600; Parker v. Lowell, 11 Grav, 357; and see Mayor r. Willison, 50 3Td. 150 ; Oilman v, Laconia, 55 X. H. 130. 13 Hill V. Boston, 122 Mass. ^U ; compare Finch v. Board of Educa- tion, 30 Ohio St. 40 ; Basset- v. Fish, 75 X. Y. 310. 14 Aldrieh v. Tripp, 11 R. I. 143 ; Bailey 7-. Mayor. 3 Hill. 530 ; com- pare Brooks V. Som'erville, 106 Mas^;. 274 ; Weightman v. V\'ashington, 1 Black, 40 ; Seaman v. Mayor, 80 X. Y. 242. Parties - 12 ^ 45 T/HG MAY SrE AKU BE SUED. 134 15 Wheeler v. Cincinnati, 19 Ohio St. 21; Buttxick v. Lowell, 1 Allen, 173 ; HaflFord v. New Bedford, 16 Oray, 302 : Earner v. Lowell, 98 Mass. 671 ; see Aldrich v. Tripp, 11 R. I. 143. 16 Kobs V. Minneapolis, 22 Minn. 161; Tlmj-er v. Boston, i:j Pick. 51} ; Simmer v. St. Paul, 23 Minn. 409 ; and compare Morris v. Mayor, 44Md. 607. 17 Armstrong. I). St. Louis, 3 Mo. App. 104; Hammer Slough r. Kansas City, 57 Mo. 221 ; and see M. E. Church v. Iloboken, :.3 Is. J. Eq. 16. IS Scrafford r-. Gladwin, 41 Mich. n.>5. 19 Selma v. Mullen, 4G Ala. 4:5. 20 Smith v. aSTewburgh, 77 N. Y. 186; see Cbwen v. "West Troy, 43 Barb. 52 ; McDonald v. Mayor, 63 IS". Y. 26 ; Nelson v. Mayor, 63 N. V. 535 ; (Jas Co. v. San Francisco, 9 CjiI. 467 ; Argenti v. San Francisco, 16 Cal. 263 ; McCoy v. Briant, 53 Cal. 250. 21 Dock Co. V. Mayor, 8 Ilun, 247. 22 Bigelow v. Perthamboy, 25 N. J. L. 301 ; compare Huntington v. Da3', £5 Ind. 7. 23 Mayor v. Green, 42 N. J. L. 627. 24 Leonar«l v. Canton, S5 Miss. 191 ; Callaway v. Mayor, 43 Ga..:)10 ; and see Union Steamboat Co. xk Buffalo, 82 N. Y. :i55 ; Davenport v. Elizabeth, 41 N. J. Eq. 363. 25 Nickodemus v. East Saginaw, 25 Mich. 45D; Union Steamboat eo. V. Buffalo, 82 N. Y. 355 ; Davenport v. Elizabeth, 41 N. J. L. :J6:i 26 Oil City v. McAboy, 74 Pa. St. 251. I 45. Towns, suits "by. — Towns being creatures of the statute must sue in tlio manner therein provided.'' The stat- ute providing that certain actions by or in behalf of towns may bo brought by the supervisors of tlie town by their name of otSce means the supervisors of the town, eo nomine, with- out the use of their personal name ; ^ that is but another way of designating the town itself as plaintiff in the action, and the action, being in the right of the town only, could not be affected by a change of officers.^ If the action were brought in the name of the town, probably its right to sue in that capacity would be sustained.* Thus an action to recover expenses incurred by the towii of A. in aid of a pauper, whoso settle- ment h in the town of X., held properly entitled Town of A. v. etc. ;5 iji^it an action to recover the penalty for bringing into, and leaving in the town a pauper, with the intent to charge the town with her support, she not being lawfully settled therein, cannot be maintained in the name of the town.'^ Where a bond was given to the town of A., conditioned to save it harm- 135 COUNTIES, CITIES, AXD TO^VX^. ^ 15 less from expanse, for support of a bastard child, tlic town being subsequently divided, and the bastard's settlement being ia the new town, an action was properly brought thereon in the name of A. for the benefit of the new town. ' Upon a bond to the State for the use of the town of N., no action lies in the name of the town ; ^ but when a town officer holds it.> money, and refuses to pay it over to his successor, ho claiming it as his own, suit therefor may be maintained in the name of the town, indepandently of its remedy upon his official bond.^ So a town may sue in its own namo on a contract made to an agent for its benefit ; ^^ may maintain an action for the obstruction of pub- lic highways within its limits ; may under statute maintain an action against rioters for their destruction of property, for Avhich the town has paid the owner, although paid in pursuance of an award, and without suit at law.^- A town being author- ized by statute to sell the right of taking fish from the streams within i s limits may maintain an action to recover the pur- chase prieeJ'* 1 Griggs V. Griggs. 66 Barb. 237 : Cairnes r. O'Bleness, 40 ^V"is. 475 ; ^'ri?gs T'. Griggs. 5G Is". V. oOS ; see West Bend v. Munch '"^ Iowa, 133 ; Sturbriclge v. Wiuslow, 21 Pick. S9. 2 Cairnes i\ O'Bleness, 40 Wis. 475 ; Sni>ervisors z\ Kirbv, 25 Wis. 490 : compare Griggs v. Griggs, 56 X. Y. 506 ; Same Case, 66 Barb. 297 ; contra, Super\isors r. Stimson, 4 Hill, 136 ; Gould r. Glass, 19 Barb. 1^. 3 La Crosse i\ Melrose, 22 Wis. 462 ; Cairnes v. O'BIeuess. 40 Wis. 475; Supervisors f. Stimson, 4 Hill, 137. 4 Pine Valley v. Unity, 40 Wis. 635 ; Cairnes v. O'Bleness. 40 Wis. 475 ; see La Crosse v. Melrose, 22 Wis. 462 ; compare Griggs r. Griggs, 66 Barb. 297 ; Same Case, 56 X. V. 506 ; contra, West Bend v. Munch, 52 Iowa, 133. 5 Pine A'alley v. Unitv. 40 ^Vis. 685; see La Crosse v. Melrose, 22 Wis. 462. 6 Sturbridge r. WmisIow, 21 Pick. S4; compare iUton r. Welsh, 9 Pick. 90. 7 East Hartford v. Hunn, 29 Conn. 506; see also People r. Had- dock, 12 Wend. 478. 8 Northampton i: Zlwell, 4 Gray, 82: g^enerally see Montville r. Haughton, 7 Conn. 547; Cairnes v. O'Bleness, 40 Wis. 475, 9 Blanchard r. La Salle, 99 111. 283. 10 Garland v. Revnolds, 20 Me. 46 ; and see Newcastle v. Bellard, 3 Me. 371 ; Aug^usta v. Leadbetter, 16 Me. 47. 11 Laconia v. Oilman, 55 N. H. 1'2S ; Troy v. Railroad Co. 23 X. H. IW ; see also Menasha v. Steam Tug, 26 Wis. 536. 12 Hanover i\ Dewey, 13 The Reporter, 143. 2 46 WHO :iIAY SUE AND Ei: srED. 1S6 la \VtitPrto\\'n V. ^Vllit,e, L) ^-luss. 47;); ICastliam v. Aii<]{-:-s():i, 1U) Mass. .")•_'!). ^ 46. Towns, suits against. — An action against a town should be against it in its coi-porate namo;^ not being incor- porated suit should be against its trustees, and their individual names should bo set out in the record."'^ When money has been received by a town for the purchase price of bonds, or other unauthorized paper, issued by the town for purposes of raising money, an action will lie to recover it back as for money hael and received;-' but v»dicn the bonds have been issiied in piirsuancc of statutory enactment, they constitute a valid claim against the town, for the payment of which it is bound to provide. They arc liquidated demands, and suit may be commcnceel upon them to enforce their payment.* An action will lie against a town upon a judgment, even though a portion of it had been paiel by individual inhabitants under an assessment made in pursuance of statute, which cxempteel sucJi inhabitants so paying from further liability thereon,^ Public property of the city of A. was situated, assessed, and taxed in the town of X., the tax was paid under protest, and divided between the State, county, and town, each receiving its pro rata sliare ; although the tax is illegal, an action will not lie against the town to recover the amount paid, or any part thereof.'^ Where a town set apart a fund for the payment of a certain class of claims, and subsequently was divided into two towns, after which the fund was divided between said towns proportionately, held, in an action by one of the claimants to recover his share that the action should be brought against each town for the amount it had received, and not against both jointly,^ To render a town liable for services of a physician in tending small-pox patients, an express contract with the proper town e)fficers must be shown. » A town in its corporate capacity has no control over highways, and independent of statntoiy enactment is not liable for the negligence of its oftic'-rs in failing to keep the highways and bridges within its limitrt in re pair. « Even an indictment will not lie against its officers for failure to repair bridges, unless it is expressly 137 COUNTIES, CITIES, XSD TOW-^S. ^ 46 averred that they had funds ; i" nor can they be compi-lled by mandamus to rebuild a bridge until thty are piovided with funds. 1^ A distinction is observed by the authorities l>etween the liability of an incorporated village for the neglect of its officers to repair streets within its limits and the lialnlity of a town for the same defects, the former being htld liable inde- pendent of statutory enactment, the latter not; the distinction seems to be well settled, but the reason lost in mist.i''^ When a street has been laid out through lands of a private owner with his assent, a village will be liable for the acts of its tiiistees in proceeding to open it without his assent, provided the ti-ustees act within the scop3 of their general authority, and with an honest desire to obtain a lawful benefit for the public, not knowing at the time that their acts were unlawful.'^ In Ohio the courts hold that the owner of an unimproved lot can- not recover damages from the corporation (a village) for cut- ting down, filling, or ditching the street abutting on his lot. If he makes improvements and -the grade of the street has not been established, ho cannot recover, if by the exercise of ordinary care the grade could have been anticipated ; but if the gi*ade has been established l;y the corporation, and he improves the lot with a view to the established grad--, and the same is subsequently changed, to his injury, he may recover. ^^ The same rule seems to obtain there with reference to the lia- bility or towns for the same acts.i^ A town is not liable for the neglect of its officers while grading a street in failing to pro- ^'ide a channel for the drainagj of surface water ; '" nor is it liable, independent of statute, in a private actian, for an injury to a person resulting from the floor of a town house giving way by reason of its faulty construction. ^^ A town must be a party defendant to a bill in equity to restrain its treasurer fiom paying out money voted at a legal meeting of the town for illegal purposes.^** An action against a school district should be against the district in its corporate name, ''•'and not against the trustees individually. "^ A teacher performing ser- vices for a school district, which is after consolidati\l with a now district, which takes all the property, rights, and assets of g 46 WHO 31IAY SrE AND BE SUED. 138 the former, may recover from the latter the vahie of his ser- vices.-' When a school district tax has been illegally assessed and collected, the remedy is again t the district,^'-^ and not against the town ; '^ hut when a town collects school money from the issue of liquor licenses, which money when collected belongs to the county school fund, an action will lie against it to recover the same.^^ When the duty of providing school- houses is imposed by a general law upon a school district, it is not liable, independent of statutory enactment, for injuries sustaint d by a pupil by reason of the defective condition of the schoolhonso,"^^ nor for the defective condition of the yard surrounding the same.'-"" 1 Grisgs r. Griggs, 66 Barb. 298 ; Pine Valley v. ITnity, 40 Wis. 6S5 ; see also Wilson v. Trustees, 168 Ohio, 180 ; Duanesburgh ?■. Jenkins, 40 Barb. ."jTU ; and compare Cushing v. .Siouglaton, 6 Cush. 3'Jl. 2 Lexington r. M'Connell, 3 Marsh. A. K. 1032. 3 Parsons ?'. Monmouth, 70 Me. 26o; and see Gauso v. C'itv of Clarksville, 5 Dill. 163 ; Paul v. Ivenosha, 22 Wis. 272 ; Mayor v. Kay, 10 Wall. 48-1. 4 Marsh v. Little Valley, 64 X. Y. 115 ; Brown v. Canton, 4 Lans. 403 ; and see Hathaway v. Homer, .5 Lans. 271. 5 Littefleld v. Greenfield, 69 Me. 8S ; and see Spencer v. Brighton, 40 Me. :t2H ; compare Beers v. Borsford, 3 Dav, 165 ; Nelson v. Milford, 7 Pick. 22. 6 Bochester r. Rush, 80 X. Y. 310 ; and see Lorillard v. Monroe, U N. Y. 3:i2 ; but compare Hurley v. Texas, 20 Wis. 63G. 7 Collins V. Burlington, 4-1 Vt, 19. S Cliilds V. Phillips, 45 Me. 40D ; and see Boothby v. Troy, 43 Me. 9 Morey r. Newfane, 8 Barb. 651; People v. Town Auditors, 74 JS. \ . 316 ; People v. Town Auditors, 75 N. Y, 319 ; Mower v. Lances- ter, 9 Mass. 250 ; Oliver ■?-. Worcester, 102 Mass. 499; also Beed r. Bel- fast. -0 Me. 2-ls; Chidsey v. Canton 17 Conn. 478; see also 1 oung r. Conimissioners, 2 NottS1. 24 Tecumseh x\ Phillips, 5 Xeb. 403. 25 Hill V. Boston, 122 Mass. 344 ; but see Ba.ssett v. Fish, 75 X. Y. 306 ; compare Bigelow r. Meredith, 36 X. H. 284. 26 Finch v. Board of Education, 30 Ohio St. 40 ; Dij-clow ;•. llan- dolph, 14 Gray, 543 ; Sullivan v. Boston, 123 Mass. 541. 47 WHO MAY SUE AND BE SUED, 140 CHAPTER VI. PUBLIC OFFICEES. ? 47. Generall.v suits by and against. i 43. Governor, attorney-general, suits by and against. I 4d. Judicial ofiicers, suits by and against. ? rx). Treasurer, suits by and against. ? 51. SlierifT, suits by and against. I 52. Receivers, suits by and against. § 47. Generally suits by and against. — As a general rule all public officers, iilrliough not expres:?!}- authorized by statute, have a capacity to sue commensurate with their public trusts and duties.^ The suit should be brought in the individual name of the officer, with the addition of his name of office ; ^ unless officers are declared by statute to be a corporation, in which caso suit should be in the corporate namc.^ A public officer is liable in a civil action to a i)rivate person specifically injured thereby for the non-performance or negligent perform- ance of a ministerial duty, which is absolutely required of him ; but if p:rformance of the duty bo discretionary with him, he is not liable, in absence of fraud or malice, to a private person, either for a failure to exercise the powers, or for exercising them, provided he acts within the scope of his authority.* At common law a suit en a bond to one, and his successors or assigns, must bo maintained by the obligee during his life, and l:y his personal representative after his death, except in caso of solo cor;;:)orations that arc trustees for the benefit of others, and r.ot for themselves only ; but when a statute directs a bond to bo given to a certain officer, or to him and his successors, his successors may sue thereon. ^ A suit does not abate by the expiration of the term of office of the plaintiff; he may pro- ceed to judgment, or his successor may be substituted.'^ When an officer in his official capacity receives money, ho is liable therefor to his successor in office, even though he had no lil PUBLIC OFFICEnS. \ 48 authority to exact the payment;" so -when the entire cbim is unlawful^ or fraudulent.^ "When money has been paid to an oificer under claim of right for services, and to which he is not entitled, it is not a voluntary payment, and may be recovered back.^*^ No demand is necessary to be made of a public (officer for money in his hands which it is his duty to pay over.'^ An officer wrongfully kept out of the office by an intruder may recover of him the salary or perquisites. '=^ A State may im- pose conditions not in conflict with the Constitution or laws of the United States upon a foreign corporation with reference to the transaction of business within its limits, and injunction will not be granted by the federal courts to restrain a State officer from cancelling the license of such corporation to do business within such State, for non-compliance with such con- ditions. ^-^ 1 SapGrvJsors v. Stimsoii, 4 Hill, 137 ; Haynes v. Butler, .30 Ark. 71. 2 Supervisors v. Stimson, 4 Hill, 137; Conirars. v. Peck, 5 Hill, 213 ; Ag t ot St. Prison v. Kikeman, 1 Denio, 279. 3 Pomoroy v. Wells, 8 Pai-G, 403. 4 Connors v. Adams, 13 Hun. 420; Kendell v. Stokes, 3 Kow. 07: Tompkins '•. Sands. 8 Wend. 46-5; Reed v. Conway, 20 Mo. :«; see Donahoe v. Ricliards, 33 3Io. 377; Wall v. Trumbull, 16 Mich. 233: Downing v. McFadden, 18 Pa. St. 333. 5 .Stevens v. Hay, 6 Cush. 2-30 ; and see Powers 7-. Ware, 2 Pick. 4.51 ; Overseers t'. Saars, 22 Pick. 120; Jansen v. Ostrander, 1 Cowen. 677 ; Ferebf 2 v. Sanders, 3 Ired. 361 ; Polk v. Plummer, 2 Humph. 502 ; Pickering?'. Pearson, 6 X. H. 560; see Hoxie v. Weston, ly M?. 32(5 ; Lord v. Lancey, 21 Me. 469. 6 Manchester r. Herrington, 10 X. Y. 169; compare Hughes v. Riitlibone, 3 Alb. L. J. 71. 7 Ham v. Silveruail, 7 Hun, .3.5 ; People v. Brown, 55 N. Y. ISO. S First Natl. Bank of Sturgis v. Watkins, 21 Mich. 48S ; Fryo v. Lockwood, 4 Cowen. 456 ; and see Elliott v. Swartwout, 10 Peters, I.5G ; Be:id v. Hoyt, 13 Peters, 26.5. 9 Robbins v. Woolcott, G6 Barb. 65 ; Griggs r. Griggs, 5G X. Y. oft5. 10 Grant Co. v. Sels, 5 Oreg. 243 ; Am. Exc. Fire Ins. Co. v. Britton. 8 Bosw. 151. 11 Little r. Richardson, G Jones, 306 ; State v. Mcintosh, 9 Ired. 300. 12 Auditor v. Benoit. 20 Mich. 173; People v. Miller, 24 :SIich. V>"\\ PvJttit ?'. Rosseau, 15 La. An. 2:3;); United .States v. Addison, 6 Wall. 2.1fi ; United States v. Addison, 22 How. 181. 13 Doyle v. Insurance Co. 94 U. S. .5;37. \ 48. Governor, attorney-general, suits by and against. — The governor is the proper representative of the State, and \ 49 "WTIO MAY SUE AND BE SUED. 112 liouud to protect its interests; incase of tlie absence of the attorney-general from the State, he may prosecute an appeah^ The judicial and executive departments of government are dis- tinct and independent, neither is I'esponsible to the other for the performance of its duties, therefore neither can enforce performance by the other.^ The attorney-general and county attorney are tlie olhcers specially charged with the duty of representing the public in all litigation, and may use the name of the State or county to pursue any remedy;-* the attornej-- 1,'uneral cannot, however, pursue in the name of the State, funds of a county fraudulently misappropriated by its offlcer.* In a suit to set aside a patent to lands issued by the United States, and to declare the same void, it is essential that it appear that the attorney-general either instituted, or in other manner is officially responsible for it, and has control of the cause.^ A suit upon the bond of the clerk of the State prison is properly prosecuted in the name of the people by the attor- ney-general.'^ In a proceeding in the name of the attorney- general to compel the execution of a charity, it is proper that there be some responsible relator, who will be responsible for costs, and upon whom will devolve the control and manage- ment of the cause.^ 1 State V. Dubuclet, 22 La. An. 602 ; compare Bobbett v. State, 10 Kan. U. 2 Kico V. Austin, \\) Minn. lOfi ; and see State v. Warmouth, 22 La. \\\. 1 ; Dennett Petn'r, :i2 :sre. 50J ; Low v. Towns, 8 Ga. 372 ; Mauran r. Sniitli, S U. I. 21(j : Hawkins v. Governor, 1 Ark. 582 ; State r. Gov- .inor, 2.5 X. J. L. ;«'J ; II. I. & B. By. Co. v. Randolph, 24 Tex. 329; I'eople V. Bi.ssell, 19 111. 2;J0 ; compare State v. Governor, 5 Ohio St. ■i'53; Chumasero v. Potts, 2 Mont. 256. 3 Bobbott V. State, 10 Kan. 15. 4 People 7'. IngersoU, 58 N. Y. 10; and see Hannan v. Wells, 4 Greg. 2.51 ; Salt Lake Co. v. Golding, 2 Utah, 319. 5 United States i'. Thockmorton, 98 U. S. Gl ; Same Case, 8 The Reporter, 48.5. C lluljn V. The People, 31 Mich. 326. 7 Alty.-Genl. x\ Wallace, 7 Mon. B. 619. \ 49. Judicial officers, suits by and against. — An action ai law may be maintjiined by the chancellor in his official name uix;n a money bond given to him in his official capacity. ^ The U3 PUBLIC OFFICEKS. ^ 49 resignation of a judge of proba'e operates as a discontinnance of an action in bis name upon an oflaee bond,^ unless his suc- cessor comes in and prosecutes ; ^ tbis can be done only when autborized by statute, and applies only to bonds given in con- formity -svitb tbe statute.* A bond executed to tlie justices of tlie county court by tbeir names, and for the use of the county, should be sued upon in the names of the justices.^ An action upon the bond of an executor under the revised statutes, com- menced prior to September 1, 1873, to recover money claimed to be due upon a legacy, was properly brought in the name of the probata judge, with his consent.*' Xo action lies in favor of a justice of the peace against a person who deceives such justice as to his age, and is thereupon married, to recover the penalty imposed upon such justice for having performed tlio ceremony." Judges of courts of record of general jurisdiction are not liable in civil actions for judicial acts, even when in excess of their jurisdiction, and alleged to have been done cor- ruptly and maliciously. When the proceeding complained of is of a judicial character, the liability of a justice of the peace to answer civUiter to the aggrieved person depends, not upon the qiio ardmo with which he acted, but upon his authority to act at all in the premises.^ So for the illegal exercise of ministerial powers, or discharge of ministerial duties, they are liable.^" The rule is a general one, that no public oflBcer is liable in a civil action for a judicial determination, however, erroneous it may be, nor however malicious the motive that prompted it.^^ 1 Chancellor v. Hoxsey, 41 X. J. L. 218. 2 Cutts ?'. Parsons, 2 Mass. 440 ; and see Stevens r. Ilay, 6 Cush. 2^i. 3 Holten V. Cook, 12 Mass. 575. 4 Cleaves r. Dockray, G7 Me. 113 ; see Lord v. Lancry, 21 Me. 46U. 5 Craig v. Co. Court, 12 Mo. 9G. G Buel V. Dickey, 9 Xeb. 230. 7 Harvey i-. Bush, 3 N. J. L. 975. 8 Pickett V. Wallace, 57 Cal. 557 ; Bradley v. Fisher, 13 Wall. Ml : Woodraflf r. Stawart, G3 Ala. 215 ; Lange v. Benedict, Ti N. Y. 2.5. 9 Tavlor v. Doremus, 16 X. J. L. 477; Morton v. Cra».e, S9 Mich. ')iO ; Piper v. Pearson, 2 Grav, 122 ; Bnrnham r. Stevens, 'Si X. H. 25^ : and S3e Bradley v. Fisher, 13 Wall. :«1 ; Spencer v. Perry, 17 Me. 415. 10 Snllivan v. Jones, 2 Grav, 5?2 ; and see Kelly v. Moore, 51 Ala. :365 ; Percival v. Jones, 2 Johns Cas. 50 ; Welch r. Frost, 1 Mich. Si. g 50 ■\VnO 3IAY SUE AND BE SUED. Hi 11 Turpen r. Booth, 5fi Cal. 68 ; Downer v. Lent, 6 Cal. 95 ; Weaver V. Devendrof, 3 Donio, 120; rJorden v. Farren, 2 Doug. (Mich.) 411; but see Klbin v. Wilson, 33 Md. 142 ; Friend t\ Hamill, M Md. 200. § 60. Treasurer, suits by and against. —An action upon a bond given to A. B., treasurer of tlie State, and his successors in that office, may he maintained in the name of the successor in office. 1 The county treasurer has capacity to sue the tax collector upon his official bond, for failui'e to pay over moneys received in his official capacity at a delinquent tax sale, in excess of taxes, penalty, and costs. "•' When a county treasurer sells lands for delinquent taxos, but fails to collect the amount bid by the purchaser, it is not such a sale as will support an action for his fees and charges, the sale is not completed until the amount bid has been collected ;3 so, also, the treasurer cannot retain special counsel to prosecute the tax collector for funds of the county.* When a town ti'easurer is authorized to bring suit upon debts due the town, the suit will not abate by the expiration of his term of office.^ The office of parish treasurer authorizes the incumbent to receive all money due the parish, but unless specially authorized by statute, he is not the proper person to represent the corporation in court, either as plaintiff or defendant.'' In Nebraska, by statute, suit on behalf of the public upon the bond of a county treasurer must be instituted by the county clerk, at the direction of the State auditor or county commissioner ; these facts must be alleged in the peti- tion.^ A county may maintain an action against its treasurer, on his official bond for moneys collected by him in his official capacity, and which ho fails to pay over as required by law.^ So the State auditor may in his official capacity maintain an action against the State treasurer and county treasurer to enjoin them from receiving worthless script in payment of taxes.** When a county treasurer has proper funds in his hands, and refuses to make payment of a claim entitled to be paid, he is liable to an action upon his official bond.^" So, also, for furids of the county coming into his hands the treasurer is liable, and the mere fact that such funds have been stolen is no defense. '1 145 PUBLIC OFFICEBS. g 51 1 Pickering v. Pearson, G X. 11. 5-5!) ; see also authorftlos, I SO. 2 Haynes r. Butler, ;50 Ark. 70 ; and see Lane r. Ka.sey, 1 Mi-t. 412 ; compare Clifton v. Wynne, 80 N. C. 1-16; Mississippi Co. r. Jar-kson, .51 Mo. 23 ; Johnson v. Goodridge, 15 Me. 30 ; Parish Treas. v. Ku.s.sell, 3 La. 94. 3 Miles V. Miller, 5 Neb. 272. 4 Lewenthall v. State, 51 Miss. 651. 5 Kellar v. Savage, 20 Me. 2W ; authorities, ? 80. 6 Helluin v. Maurin 8 La. 113 ; Townseiid r, Iloj'le, 20 Conn. 5. 7 Albertson v. State, 9 Xeb. 435; and see Yates r. The State, .58 Ind. 299 ; Sacramento Co. r. Bird, 31 Cal. 6S. 8 Greenville Co. v. Runion, 9 S. C. 3. 9 Auditor v. Treasurer, 4 S. C. 311. 10 Briggs I'. Coleman, 51 Ala. 563. 11 Co. Commrs. v. Jones, 18 Minn. 200 ; State v. Sheldon, 10 Neb. 454 ; State v. Harper, 6 Ohio St. 600 ; and see United States v. Daahiel, 4 Wall. 185. I 51. Sheriff, suits by and against. — A sheriff may sne on a replevin Loud taken by him on the failure of the plaintiff in the replevin to prosecute his action. i And so an action upon a hail bond must be brought in the name of the sheriff to whom it,was given ; ^ the sheriff who takes a delivery bond, and the parties thereto, have such an interest i:i the property mentioned therein that they may unite in a suit in equity for its protec- tion.^ A sheriff who by virtue of a writ of attachment levies upon the property and effects of a defendant, does not thereby acquire such rights in an unnegotiable demand due the defend- ant as to enable liim to maintain suit thereon in his own name.* When property is sold at execution sale, he may in his oflScial capacity maintain an action against the purchaser for its price.* So where personal proparty levied upon is wrongfully taken from the possession of the sheriff, he and not the plaintiff is the proper person to maintain an action for the tort.'' When an officer sells the same property under several executions against the same debtors, he may file a bill in chancery calling upon the judgment creditors to interplead and settle their priorities ; ^ but where an officer has levied upon property, and third per- sons claim the same adversely to the interest of t!ic officer and the execution creditor, a bill of interpleader cannot be main- tained by the officer against such persons and the execution Parties— 13 g 61 WUO MAY SUE AND BE SUED. 116 creditors. 8 When tlic execution creditor has received more nionty than he is entitled to upon bis claim from the sheriff, such onicur and not the defendant in execution is the proper person to maintain an action for its recovery,^ In an action against a sheriff for an escape of a debtor imprisoned under civil process, the fact that the jail was insecure is no defense to the action. 12 When an officer levies upon and sells under exe- cution the property of a stranger to the writ, be is liable for the tort in bis individual capacity and not upon bis official bond ; ^^ so a deputy sberifl' is directly liable to the person injured for a trLSpass committed under color of process. ^^ j^ an action against a sheriff for tortious acts of bis deputy, tbe defendant need not be described as sberiff.^^ After judgment in trespass tie bonis aspurtatis against a deputy sheriff, and execution levied on bis body but not satisfied, no action lies against tbe bberiff for tbe same cause.^* A sheriff and bis deputy cannot be sued jointly for a tort done by tbe deputy alone. ^^ To ren- der an officer liable for failure to levy an attachment upon defendant's property, it is not necessary that execution should have been placed in tbe officer's bands within thirty days after judgment if prior to judgment tbe debtor bad convened all bis property, i" or bad become insolvent and witbout property.^' An action will not lie against an officer for failure to take a bond from detendaut for tbe forthcoming of tbe chattel sued for in an action of trover, under an order made under tbe act of December, 1839, unless it appears tbe plaintiff in tbe action of trover recovered judgment therein.^^ At common law a debtor could not, without bis assent, be imprisoned for debt in tbe same prison with felons ; but in Ohio if tbe jail bas but one apartment no action will lie against the sheriff for so imprison- ing tbem.i'* An action against a sheriff and bis predecessor in office, jointly, for tbe vulue of property alleged to bavc been Beized by tbe former and lost while in charge of tbe latter, cannot be maintained ; either one or the other is liable, botb cannot be.^" On bills to restrain execution of process or per- formance of official acts tbe sheriff is made a party, as tbe design of the bill is to restrain bim from acting; but wbere 147 PUBLIC OFFICEBS. ^51 no relief is prayed or relief asked against the oflacor, it is not necessary for him to answer.^i A cause of action against a sheriff for failure to pay over money collected by him on exe- cution does not accrue until payment has been demanded of him. 22 TThere the money was collected by a deputy shorilTin his oflBcial capacity, demand of payment and refusal by him is equivalent to demand and refusal of his princip.d.'''^ An action for the misfeasance of a sheriff or his deputj' does not survive him and therefore cannot be continued against his executor.'* 1 Ogle V. Smith, 2 Houst. 175 ; and see Cheseldine r. Mathers, 2 Disn. 594. 2 Brown r. Benton, 1 Mo. 227 ; but see Buisson v. Hydo, 17 La. 13, 3 Dechard v. Edwards, 2 Sneed, 97 ; see HanrjooJ v. Fisher, U) Mo. 502. 4 Sublette v. Melhardo, 1 Cal. 105. 5 Galpiii V. Lamb, 23 Ohio St. 5C4 ; Ennis rr. Wall-r, .•; Blac'rf. -572 ; Gosksll V. Morris, 7 Watts & S. 39 ; Armstrong v. Vroman, 11 Minn. 222 ; Chappell v. Dann, 21 Barb. 24. 6 Barker r. Mathews, 1 Denio, a35 ; A. B. & C. Co. v. Pratt, 10 Hun, 445 ; Ilowland v. Willetts, 9 X. Y. 173. 7 Lawson v. Jordan, ID Ark. 302 ; and see King r. Green, 10 Mo. 196 ; Rc'igart's App. 7 Watts & S. 267 ; Turner v. Lawrence, 11 Ala. 429 ; compare Shaw v. Chester, 2 Edw. Ch. 406. 8 Shaw V. Costar, 8 Paiare, 345 ; Shaw v. Chester, 2 Edw. Ch. 406 ; compare Xash v Smith, G Conn. 426. 9 Longenecker v. Zeigler, 1 Watts, 2.52. 10 Kepler r. Barker. 13 Ohio St. 180 ; Richardson ?•. Sponcer.6 0hio, 14; Conimrs. v. Mighels, 7 Ohio St. 10); Cargill ;•. Taylor. 10 Mass. 207 ; and see Houser v. Hampton, 7 Ired. 3:J4 ; Gill r. Miner. 13 Oliio St. 197, 11 State V. Conover, 28 N. J. L. 220 ; see People r. Schn yler, 4 X. Y. 173 ; compare Skinner v. Phillips, 4 Mass. 60 ; Satterwhite r. Carson, 3 Ired. 540 ; Stillaman v. Squire, 1 Denio, 323. 12 Remlenger i\ Weyker, 22 Wis. 383. 13 Stillman v. Squire, 1 Denio, 323 ; and see Houser v. Hampton, T Ired. im. 14 Campbell r. Phelps, 1 Pick. 65 ; contra, Morgan v. Chester, 4 Conn. ass. 15 Campbell v. Phelps, 1 Pick. 65 ; but see Morgan i-. Chester, 4 Conn. :iSS. 16 ■ Townsend v. Llbbey, 70 Me. 163. 17 Abbott V. Jacobs, 49 Me. 319. 18 Lyles v. Bolles, 8 S. C. 261. 19 Campbell v. Hampson, 1 Ohio, 123. 20 X O. Ins. Asso. v. Harper, 32 La. An. 11C5 ; sec also Bower. Williams, 7 3ton. B- 206. 21 Brooks V. Lewis, 13 X. J. Eq. 214. g 52 WHO SLVY SUE AND BE SUED. 148 22 Il'l-hler V. Foster, 22 Ohio St. 29 ; Succession of McCloskey,K2 I^.. An. i'A ; see Waite v. Delcsdernier, 15 Me. 145. Z") J.ylo V. Wilson, 4 Ired. 223. 2-1 Cunninarhnm v. .Taqn"s, 10 N. .T. L. 42; Cravutli v. Plympton, 13 Miu^s. 455 ; Valentine v. Norton, :eo Me. 109. 2 5 J. Eec:iver8, suits by. —The appointment of a receiver iu a suit rests veiy much in the discretion of the court.^ An order appointing a receiver when no suit is pending con- cerning the i^roperty of which he is put in charge is void.^ The order can only bo made at the instance of a person who has an acknowledged interest or a strong presumption of title, and where the property or its rents and profits are ia danger of being injured or lost.^ The general authority to manage the concerns of and carry on the business of a corporation cannot be assumed by a court of chancery or be vested in a receiver,* neither will it be taken from its managing board except under proceedings instituted to wind up the corporation under the statute.^ The title of the receiver to the property which is the subject of the receivership dates from the time of his appoint- ment and not from the date of his giving bond.*^ When pend- ing an action by plaintiff a receiver is appointed to take charge of its assets, etc., the action may be continued in the name of the original plaintiff for the benefit of the receiver; " and as a rule it would seem that in absence of a law or an oreTer of the appoint- ing court authorizing a receiver to sue in his own name, he should sue in the name of the person in whom the right of activjn existed at the time of his appointment.^ He cannot maintain trover in his own name for the conversion of gooels before his appointment ;^ but if goods are taken from his pos- session and converted after his appointment, he may maintain the action. 1'' A receiver appointed by virtue of the statute pro- viding a method for discovering concealed property of juelg- ment debtors on the return of execution unsatisfied may maintain a bill in his official capacity to annul sales of such property or encumbrances upon it made in fraud of credit- ors ;" but he cannot maintain an action to enforce a resulting trust in favor of tlie creditors of one who pays the consielera- 149 EECEITEES. g 52 tion for lands which are conveyed to another,^^ The creditor may proceed dii-ectly to enforce the tnist,'^ after exhausting his legal remedies.^* A receiver who represents all the mem- bers of a corporation, or partnership, or all the parties to a subscription for a common purpose, may maintain an action against one of the persons so represented to recover for a sum due to the whole body so represented. ^^ So he may maintain an action to set aside a judgment alleged to have been obtained by collusion with the officers of the company in fraud of the rights of creditors;!^ but when appointed to collect tlie rents and profits of real estate he derives no title to the land, and cannot maintain an action to set aside a fraudulent conveyance, or a fraudulent assignment of a mortgage received u^xm such conveyance, in absence of an allegation that the defendant has made claim or asserted title adverse to plaintiff.^' A receiver appointed by the court of another State may sue in his official capacity in this State to recover the property of the person they represent, except when the claim conflicts with the rights of creditois in this State. ^^ Upon the death of a receiver pend- ing suit instituted by him, if the cause of action survives, his successor may be substituted and the action proceed in liia name.'^ 1 Barrv ?•. Briggs, 22 Mich. 207: Jacobs r. Gibson, Xfb. ^2; Vause r. Woods, 46 Miss. 127 ; Beecher v. M. & P. Rollinic M. Co. -10 Mich. 309. 2 Merch. & Manuf. Nat. Bank v. Kent, 4:^ Mich. 296. 3 Hannah K. Chase's Case, 1 Bland, 213 ; Vause r. Woods, AC, Miss. 127 ; Kimball v. Goodburn, 32 Mich. 12. 4 Port Huron & G. Ry. Co. v. Judge etc. 31 Mich. 457 : and .see Kimball r. Goodburn, 32 Mich. 12 ; compare Barton r. Barbour, 13 The Reporter, 129. 5 Port Huron & G= Ry. Co. r. Judge etc. 31 Mich. 457. 6 Maynard r. Bond, G7 Mo. 317 ; Watson r. X. V. Central Ry. Co. 47 X. Y.' 15:1 ; compare Farmers' Bank v. Beaston, 7 Gill «fc J. 424; generally Rankine v, Elliott, 16 X. Y. :«0 ; Everett v. Noft",2.s Md. 1»6. 7 Phoenix "W. Co. v. Badger, 67 X. Y. 299 ; and see Rankine v. Elliott, 16 X. Y. 380. 8 Garver r. Kent. 70 Ind. 429 ; compare De Wolf »•. Sprajres ^rannf, 11 R. I. aSO: but see Wrav v. Jamison. 10 Humph. 186: Singi>rly v. Fox, 75 Pa. St. 114 : Yeager v. Wallace. 44 I»a. St. 2!>.5 : Porter r. Wil- liams. 9 X'. Y. 147 ; generally Sereven ?•. Clark, 4S Ga. 42 : Lathrop v. Knapp. :^ Wis. 310 ; Haxtun v. Bishop, 3 Wend. 16 ; Tillinghast r. Champlin,4R. I. 174. 62 a WHO MAY SUE AND BE SUED. 150 9 Yoasjpr v. AVjillace, 44 Pa. St. 295. 10 Singvrly r. Fox, 75 Pa. St. 114. 11 MIIKT V. MucKeiizie, 20 X. J. Eq. 292 ; and see Hamlin r. Wright, 2.3 Wis. 4!t:{ ; Bosiwifk v. Meiick, 40 N. V. .384 ; Kennedy r. Thorp, ol N. Y 176; see Higsins r. Gillesheiner, 20 N J. Eq. »^S ; generally Stoeokle V. Elilr-rs ;i7 Mich. 203 ; Donnelly v. \^ est, 1/ Hun, oGo ; Mc- Arthiir r. Hovsradt, 11 Paige, 4!>6 ; compare Foster v. Townsend, 68 N. Y. 203 ; see also Porter v. Williams, 9 JS\ Y. 14/. 12 Underwood r. Sutcliflfe, 77 N. Y. GO. 13 Wood V. Robinson, 22 IST. Y. 565. 14 Ocean Nat. Bank v. Olcot, 46 X. Y. 21 ; and see Underwood v. Sutcliire, 77 N. Y. 03. 15 Latlirop r. Knapp, .37 Wis. .307 ; and see Van Cott v. Van Brunt, 2Abb. X. (.■.283. 16 Whittlesey v. Delaney, 73 X. Y. 574 ; Talmadge v. Pell, 7 X. Y. 339. 17 Foster r. Townsend, &S X. Y. 203. 18 I'ugh r Hurtt, 52 How. Pr. 25 ; Hunk v. St. John, 20 Barb. 587 ; nurd c. Citv of Elizabeth, 41 X. J. L. 2; Taylor v. Columbian Ins. Co J4 Allen,' ;i.>4 ; McAlpin v. Jones, 10 La. An. 552 ; but see Farmers' & M. Ins. Co. V. Needles, 52 Mo. 18 ; Booth v. Clark, 17 How. 327 ; see alsf> Ingleliart v. Bierce, :« 111. 137 ; compare Graydon v. Church, 7 Mich. 50 ; generally S. C. Ry. Co. v. Peo. Sav. Inst. 64 Ga. 19. 19 Searcy v. Stubbs, 12 Ga. 438. § 62 a. Eeceivers, suits against. —As a general rale a re- ceiver cauuot bo sued without leave being granted by the court appointing him ;'^^ and this rule extends as well to suits brought to recover money or damages as to those brought to recover specific property.^i When an order granting the right to bring suit against a receiver has been imprudently granted it may be revoked. ^2 go also if such order confine the right to the court granting it,-^ and the plaintiff seeks to evade the order, it may be revoked.2* "When a receiver has been appointed for the de- fendant in a pending suit, he must be made a party by an order of the court before he can interfere in the action, as by giving notice of motion,-^ or conducting an appeal.-'^ When receivers are running a railroad under the appointment of a court of chancery of another State, and are there held liable as common carriers to an action at law, they may be sued in Massachusetts as common carriers. ^^ When a stock of goods is committed to a receiver, it is his duty to take and safely keep the same subject to the order of tlie court ; but if he sell the goods he can only be required to account for the proceeds of the actual sales and 151 EECErv'EBS. 2 52 a receipts, unless by negligence, bad faith, etc., he did not realize the full value of the property;-** and a creditor is not limited to a motion in the original action in which the receiver wan appointed, but may bring an equitable action to set aside the sale.-*^ When the condition of the bond of a receiver waa " that he should truly and faithfully account for, and pay over the moneys which should come into his hands," an omission to pay to himself as receiver moneys which he had boiTowtd from the company prior to his appointment was a breacli for which he and his sureties were liable.-*" A person who has pur- chased premises mortgaged to a bank by a former owner cannot maintain an action against the receivers of a bank to procure a cancellation of the mortgage on the ground that it was obtained by fraud of the bank ; if he has any remedy he must proceed by petition in the original action in which the receivers were appointed ;^i but when the receiver assumes to take possession of property not embraced in the decree aj^pointing him, and to ■which the debtor never had any title, he is a trespasser, and the owner may sue him in any appropriate form of action either for damages or to recover the property.^- In proceedings against a bank which has suspended, arising from its failure to deliver over special deposits made with it, a receiver duly appointed is properly joined as party defendant. ^"^ •20 Barton r. Barbour, 13 The Reporter, 120 ; Tromper v. Brooks. 40 Mich. 3;i5 ; CoUimbiun Book Co. i\ Degolver, 115 Mass. »> ) ; Noe r. (iib- son, 7 Paige, .51.5 ; Coerett v. Xeff, 28 Md. is: ; De (iraf^'.iir-iil >•. B. A A. Ev. Co. 57 Ga. 2.3 ; Savln°rs Bank v. Simpson, 22 Kan. -I-T? : liobin- son i: A. G. W. Ry. Co. 66 Pa, St. 161 ; compare Hills v. Parker, III Mass. .500. 21 Kinnev v. Crocker, 18 Wis. 77 ; Blnmenthal r. Brainerd. 3S Vt. 407; see also Thompson v. Scott, 4 Dill. .5ns ; Barton v. Barbour, 13 The Reporter, 129; compare St. Jos. l ; Wiswall v. Sampson, 14 How. 61 ; compare Hills v. ParkiT, ill Mass. 510. .32 Hills )•. Parker, 111 Mass. 511 ; generally Parker v. Browning, 8 Paige, 3:«i ; Paige r. Smith, <)9 Mass. 396. :« Tumor ?-. First Nat. Bank, 26 Iowa, 564 ; and generally see Hub- bard I'. Eames, 22 Barb. 597 ; Parker v. Browning, 8 Paige, '389. 153 BANKRUPTS \SD I^•SOL^-E^•TS. 2 53 CHAPTEK YII. BAXKBrPTS AXD INSOLVENTS. I 53. Bankrupts, actions relating to estates of. ? 54. Bankrupts continued. ? .55. Insolvents, actions relating to estates of. §53. Bankrupts, actions relating to estatas of. — After an as.signment in bankruptcy, which passes the debt, the bank- rupt cannot sue upon a chose in action in the name of another ■who has the legal title ; ^ but an action may be maintained upon a chose in action payable to plaintiff, even though be has become a bankrupt ; if the claim has been sold by the assignee, and the suit is brought for the benefit of the purchaser.-' So when a note is transferred by the assignee to the bankrupt under section three of Act of 1841 he may sue thereon in his own name.-* Under the bankrupt law of the United States a certified copy of the assignment is conclusive evidence of the title of the assignee, and of his authority to sue ; * he is not confined to the federal courts for relief, but generally he may maintain suits in the State courts, and in his own name ; => so to recover money fraudulently paid by the bankrupt to obtain signatures to a composition agreement,'' to recover' property conveyed to defraud creditors,' to set aside fraudulent convey- ances.'* Creditors cannot maintain such suits," even tliough the assignee refuses to prosecute ; i" in such case their remedy is by application to the court appointing him.'^ The assignee not only represents and stands in the place of the bankrupt, but he also represents creditors. He has a stronger right than the bankrupt, and may contest claims and rights of property which the latter could not.i'- After the publication of notice of bankruptcy as required by law, a payment by a debtor to the bankrupt of the amount due the estate will be of no avail iu a suit by the assignee therefor, even though made in good faith, and without actual notice. i=* In a suit by the assignee he cannot § 53 "WHO MAY SrE AND BE SrED. 154 Bet up the Statute of Limitations against a counter-claim based upon a claim against the estate, valid at the time of the adjudi- cation of bankruptcy ;^* nor can he maintain an action in the federal courls against a sheriff to recover property of the bankrupt estate, held by the latter by virtue of a writ of attachment issued out of a State court prior to the adjudication of bankniptcy.15 A plaintiff in a pending suit does not divest himself (if his iutei'est therein, nor of his right to prosecute the same by an application to be declared a bankrupt ; until the adjudication his rights in the premises are not affected;^** even then he may maintain the action unless the bankruptcy is sug- gested;'' but when that fact is brought to the notice of the court the assignee should be substituted as plaintiff, and prose- cute the action. i** If adjudged a banki'upt after judgment, and before appeal, either the bankrupt or the assignee may prose- cute an appeaL'** If the fact occurs after submission of the cause to the supreme court, judgment will be rendered as of the date of submission. 2" 1 . Berry v. Gillls, 17 X. H. 16. 2 Foster r. Wylie, 60 Me. 109; and see Pentecost v. Mavhew, 129 Mass. XJS ; Hayes v. Pike, 17 X. H. 565. 3 Kobinsonr. Hal], 11 Gray, 483; and see Udall v. School Dist. 43 Vt. 588. 4 "VVooldridge r. Rickert. 33 La. An. 236 ; Rogers v. Stevenson, 16 Minn. 70 ; Zantzinger v. Bibble, 36 Md. 36 ; and see ilea v. Richards, 56 A hi. 3UC. 5 Jolinson v. Bishop, 1 Woolw. 329 ; AVard v. Jenkins, 10 Met. 586 ; generally Hoover v. Robinson, 3 Xeb. 440 ; Wooldridge ?•. Rickert. 33 I.a. An. 2;J6 ; Stevens v. Mech's Bank, 101 Mass. 110 ; Otis v. Hadley, 111 Mass. lOo ; Rohrer's Appeal, 62 Pa. St. 501 ; McKiernan v. King, 2 Mont. ,.} : lullis v. Miller, 13 Hun, 364 ; Mann v. Flower. 25 Minn. -W ; and s;^e Norton v. Boyd, 3 How. 4:57; Pavson ?-. Dietz, 2 Dill. 505; ?i""^';V. ^^"y^^*""' '■• i'f'iitecost, 129 Mass. 332 ; Brigham r. Clafiin, 31 A\ IS. CU ; \ oorhees v. Frisbie, 7 Alb. L. J. 69. 6 Bean v. Brookmire, 1 Dill. 1.52. 7 .ToJinson v. Helmstadter, 30 N. J. Eq. 126 ; Ward v. Jenkins, 10 Met. .)V!; Cook v. Whipple, 55 N. Y. 165; and see Trimble r. Wood- head, Krj I . «. 049. 8 McMaster v. Campbell, 41 Mich. 51G ; Trimble r. Woodhead. 102 L. S. 049. ,. ^. ^r^'^Iiister V. Campbell, 41 Mich. 516 ; Trimble v. Woodhead, 102 L. S. W.» ; and .see Dixon v. Dixon, 81 X. C. 329. 10 Gleiiny r. Langdon, 98 U. R. 20. 11 McMaster r. Campbell, 41 Mich. 516. 155 BANKEUPTS A^-D INSOLVENTS. g 64 12 Cady V. \Vhaling, 7 Biss. 438 ; In re Gurney, 7 ELss. ■41.> ; Harvey V. Crane, 2 Biss. 4S<7 ; Robinsou v. Elliott, 22 Wall. 520 ; but Sft: In re Collins, 12 Bank. Reg. 304. 13 Stevens v. Mech's Sav. Bank, 101 Ma.s.s. 110 ; Mavs r. Manf ^'at'l Bunk, Ct Pa. St. 75 ; Butler v. Mullen, 100 3Ias.s. -154 ; and «ee Miller v. O'Brien, 9 Blatchf. 271. 14 Sachs V. Kretz, 10 Hun, 9.5 ; Parker v. Sanborn, 7 Grav. 193 ; Minot V. Thatcher, 7 Met. 3.52 ; see Trimble v. Woodheati, 102 L'! S.ftlj, 15 Johnson r. Bishop, 1 Woolw. *25 ; and compare Miller v. O'Brien, 9 Blatchf. 271 ; In re Clark, 4 Ben. 97. 16 Xegley v. Jefifers, 28 Ohio St. 96 ; Ligon v. Allen, 56 Mi.ss. 636 ; Hampton v. Rouse, 22 Wall. 2G3 ; Connor v. Exp. Co. 42 (in. ;w. 17 Sawtelle v. Rollins, 23 Me. 197; Connor v. Exp. Co. 42 fJn. 38; Ramsey v. Fellows, 12 The Reporter, 304 (58 X. H.i: Towle v. Kowe, 12 The Reporter, l>il (5S X. H.) ; but see Cannon v. Wellford, 22 Gratt. •196; compare Colher v. Hunter, 27 Ark. 75; Alston v. Wlngfi.'ld, .53 (ra. 23 ; Xoonan v. Orton, 34 Wis. 262 ; Armstrong v. Adams, 6 Ala. 751. 13 Cannon v. Wellford, 22 Gratt. 196 ; Wellink v. Morris ('. Co. 4 N. J. Eq. 3rn ; see Merrill v. Tamanv, 3 Pa. St. 433 ; Pugh >>. Hollidav, 3 Ohio St. 287 ; In re Clark, 4 Ben. 93 ; Home Ins. Co. v. HollLs, 53 Ga. e.59. 10 O'Xeil V. Dougherty, 46 Cal. 576 ; but see Sedwick v. Cleveland, 7 Paige, 291. 20 Booker v. Adkins, 48 Ala. 530; and see Alston v. Wingfield,53 Ga. 23 ; HiJl v. Bourcier, 29 La. An. 842. g 54. Bankrupts continued. —Trustees of a corporation have no power to direct the filing of a petition to have the cor- poration declared a bankrupt, such power vests in the stock- holders.^ Unpaid subscriptions to the capital stock of a corporation are part of its assets, and upon its bankruptcy pass to the assignee, and he alone is the person to sue for their collection ; - his failure to sue for such subscriptions for the psriod of two years from the date of liis appointment will not give creditors the right to bring such actions in their own names.^ If a bill in equity be brought by one of several partners, r.ll the partners should be parties whether in- solvent or not; if bankrupt their assignees should be made parties in their place.-* So where a bond was given to partners and one becomes bankrupt, suit thereon is properly brought in the name of the solvent partner and the assignee of the bank- rupt.^ In suit by one partner against a co-partner for dissolu- tion of the co-partnership, upon the bankniptcy of plaintiff being shown, hi? assignee will be allowed to be substituted as plaintiff.*^ In the application of a member of a bankrupt firm g 54 "WHO MAY SUE AND BE SUED. 156 for his individual discharge, he will not be held accountable for the acts, ommissions, or frauds of his co-partners unless he was a party theretoJ When personal property of a bankrupt has beun regularly sold by the assignee, the purchaser may maintain suit in his own name for its recovery,*^ even against the assignee ; ^ but if after adjudication of bankruptcy and prior to the appointment of an assignee an offer is made for the purchase of all the property of the bankrupt, which offer is accepted by the creditors and reported to and confirmed by the court, the title of the bankrupt to the property is not thereby divested, so as to enable the purchaser to maintain an action at law thereon in his own name.i" A discharge in bankruptcy has the same efftct as the pajTuent of a d.bt, and operates against all debts provable against the estate (save those specially excepted), and existing at the time of filing the petition ;'i to be available, however, as a defense to a suit it must be pleaded. ^2 The right is personal to the bankrupt, and therefore tlie assignee cannot intervene in a suit against him and plead his adjudication or discharge as a gi'ound for staying proceed- ings or in bar to the action ; ^^ the bankrupt, however, may file the plea at any time before judgment.'* If the discharge is obtained pending an appeal to the supreme court upon proper showing made therein, the court will order his discharge. '^ The court in which judgment is rendered is the only one where a motion can be made to amend it, and the fact that the defendant therein is a bankrupt and that proceedings in that relation are pending in the federal courts has no bearing upon the case.'*' A discharge may be attacked by a creditor in an action in a State court to recover his debt for a fraud which is not one of those specified, and which does not necessarily affect its vahdity except as to the creditor." 1 In re Lady Bryan Mining Co. 2 Abb. X. C. 523. 2 Lane v. Nickerson, 99 111. 2S7 ; Langer v. Upton. 91 IT. s. fi2 ; and see Erwm v. V. .s. 97 U. 8. 392 ; Glenny v. Langdon, 98 U. S. 20. 3 Lane?'. Nickerson,99 111.288; and see Trimble Woodhead, 102 L . .S. 647 ; McMaster v. Campbell, 41 Mich. .516. 4 Fuller v. Benjamin, 23 Me. 2.>5. >r \' K^^^ v. Ringgold, Ark. 5.51 ; Murray v. Murray, 5 Johns. Ch. 70 ; Me>. utt r. King, 59 Ala. 600. 157 BAJN-KHrPTS AND INSOL\'ENTS. \ 55 6 In re Clark, 4 Ben. 92. 7 In re Heller, 13 The Reporter, 132. 8 Jewett V. Preston, 27 Me. 403 ; Uflall v. School IMst. 4S Vt. TM : Mimms v. Swartz, 37 Tex. 13. 9 Ives V. Tregent, 29 Mich. 391 ; but .see Leach v. Greene, 116 Mass. 536. 10 Ligon V. Allen, 56 Mi.ss. 636 ; Hampden v. Rou.se, 22 Wall. 273 ; Zautzinger v. Ribble, 4 Bank. Reg. 728. 11 Miller v. Chandler, 29 La. An. 92 ; Seymour r. Street. 5 Neb. ai ; Hennequin v. Clews, 77 X. Y. 423 ; Mitchell v. Sinerleterrv. 1!» Ohio, 293 ; Halliburton v. Carter, 55 Mo. 346 ; compare Jones i-. ilus.sell, 44 Ga. 462. 12 Roberts v. Weiler, 55 Miss. 252 ; Jones v. Coker, 53 Miss. 1!W ; compare Pearce v. Foreman, 29 Ark. 566 ; and see Ludeliug v. Felton, 29 La. An. 720 ; Bell v. Cunningham, 81 X. C. 81. 13 Hijo V. Hoffman, 29 La. An. 23. 14 Block V. Fitche, 33 La. An. 1094 ; Bell v. Cunningham, 81 N. C. 84 ; Finney v. Mayer, 61 Ga. 500. 15 Haggerty v. Morrison. 59 Mo. 324 ; compare Carpenter v. Tur- rell, 100 Mass. 450 ; Loring v. Eager, 3 Gush. 183. 16 Woolfolk V. Giiun, 45 Ga. 120. 17 Poillon V Lawrence, 77 X. Y. 211 ; compare Black v. Blazo, 117 Mass. 17 ; Thurmond v. Andrews, 10 Bush, 400. § 55. Insolvents, actions relating to estates of. —An alien residing within the limits of a State is entitled to the Ixn- efifc of its insolvent laws.^ After surrender of his i)roperty, and the appointment of an assignee, the insolvent debtor has no capacity to appear in court in relation to the surrendered property. 2 If, however, the plaintifif in a pending suit is de- clared an insolvent debtor, it may still be maintained in his name.^ When one of two obligees upon a replevin bond is in- solvent, and an assignee is chosen subsequently to its execu- tion, suit thereon must be in the name of the solvent obligee alone.* Where two parties, one of whom is insolvent, obtain a judgment against a third, who holds a judgment against the insolvent, equity will permit a set-off to the extent of the interest of the insolvent.^ The i^urchaser of a note from tlie assignee of the insolvent may maintain a suit thereon in the name of the insolvent against the maker, if the insolvent inter- pose no objection, although the note is not indorsed cither by the assignee or insolvent.^ A surety upon a bond may file a bill against a counter-surety to enforce plaintiff's exoneration, although he may not have paid the debt, and is in fact insolv- Parties — 14 g 55 WHO aiAY SUE AND BE SUED. 158 cut.' In Ne^Y York a single stockholder may maiiitain an acticu to dissolve the corporation, and wind up its affairs.^ To a bill in equity by an insolvent corporation against their as- signee, and purchasers of their real estate from such assignee, to vacate the proceedings in insolvency, it is no objection that one of their creditors who claims the land under a later deed from the corporation also joins as plaintiff.^ One who holds a joint aiid several note given by partners in their partnership name may prove his claim against the joint estate of the firm, and the individual estate of the partners, they being insolvent in both capacities.!" Two persons, partners, not having adopted partnership name, executed a note in their individual names, the money obtained thereon was used in the partnership busi- ness, they are insolvent and have estates, both as partners and as individuals, the holder of note may prove claim against either firm or separate estate, but not against both." After dissolution of partnership one of the two partners consigned firm goods to an agent to sell and apply proceeds to payment of a firm debt, he then becoming insolvent, was properly made a defendant with his assignee in an equitable action by the solvent partner against the agent in pursuance of Revised Statutes, ch. 118, g 43.12 Upon a bill between partners for a settlement of the affairs of the partnership after dissolution, the insolvency of defendant will entitle complainant to the appointment of a receiver.!^ When an insolvent lessee has failed to pay his rent, and his assignee has been appointed, the latter is the proper person to make defendant in a suit for a dissolution of the lease. i* After a discharge in insolvency the insolvent cannot sue in his own name upon a cause of action claimed to have existed prior to the insolvency proceedings ; ^^ nor can he plead his discharge in bar to a suit brought against him by a citizen of another State, i*^ unless the latter voluntarily submitted himself to the jurisdiction of the insolvency court. ^^ Pending an action for trover defendant gave a bond for the production of the chattel, and subsequently obtained his dis- charge in insolvency, the plaintifi"was allowed to proceed to judgment in the action of trover. i*^ In a suit by a bank against 159 BANKRUPTS AXD INSOLVENTS. ^ 65 its cashier and sureties upon his ofiacial bond, upon the doath of the insolvent cashier the cause may pi'oceed to judgment against the sureties alone.^^ 1 Judd V. Lawrence, 1 Cush. ^U. 2 :McIntire v. \\Tiiting, 7 La. 273 ; Bank of LouLsana r. Wilson, 19 La. An. 2. 3 Beshine v. Shipperson, 17 Gratt. 480. 4 Brown v. Brigham, 5 Allen, .583 ; see Dunlap v. Burnhani,.'i8 Mp. 112. 5 Fulkerson v. Davenport, 70 Mo. 542. 6 Stoma v. Hubbard, 7 Cush. 598; and see Robinson v. Hall, H Gray, 483. 7 Ferrer v. Barrett, 4 Jones Eq. 456 ; see Kno.x r. Jordan, 5 Jonea Eq 176. 8 Masters v. Life Ins. Co. 6 Daly, 458 ; and see Van Pelt »•. U. S. Met. Sh'g Co. 13 Abb. Pr. N. S. 327 ; compare Life Ins. Co. r. CoghiU, 30 Gratt. 73 ; People v. Ins. Co. 74 X. Y. 178. 9 Cheshire Iron Works v. Gay, 3 Gray, 53.3. 10 Ex parte Nason, 70 Me. 36G ; and see Borden r. Cuyler. 10 Cush. 476 ; Ex parte Farnsworth. 1 Low. 4!)7 ; compare Ex part*' Holbrook & Co. 2 Low. 2.59 : Mead v. Xat. Bank of FayettHville. 6 BIntchf. IhI ; In re Tesson, 9 Bank. Reg. 379 ; see Marsh »-. Marsh, 9 Rob. (,Lu.> 46. 11 Ex parte First Xat. Bank of Portland, 70 Me. 378. 12 Bartlett r. Parks, 1 Cush. 85. 13 Randall v. Morrell, 17 X. J. Eq. 343 ; and see Renton r. Chaplain, 9 X. J. Eq. 63. 14 Dubois V. Xiques, 14 La. An. 427. 15 Young V. Willing, 2 Dall. 27G. 16 Stevenson v. King. 2 Cliff. 1 ; and see Cook »•. Moffatt, 5 How. 307: Siurges v. Crowninshield, 4 Wheat. 122; Ogden v. Saunders, 12 Wheat. 254. 17 Hawlev v. Hunt, 27 Iowa,«307 ; Easterby v. Goodwin, 35 Conn. 2S4 ; WhitneV v. Whiting, 35 X. H. 461 ; Gilman r. Lockwood. 4 Wall. 410: Donellv?'. Corvett. 7X. Y. 503 : Kelly c. Drury, 9 Allen, 2s ; Feloh r. Bugbee, 4*8 Me. 10 ; Beer r. Hooper, :i2 Miss. 2.54 : Crow r. Coio4 ; compare Stoddard v. Harrington, 100 Mass. 87 : Read v. Bennett, 23 Wis. 373. 13 Green v. Foskett, 11 Rich. :«3. 10 Farmers' Bank?-. Polk, 1 Del. Ch. 174 ; but compare Starner r. mderwood, 54 lud. 48. 56 WHO MAY SUE A>1> BE SUED. 160 CHAPTER YII. INFANTS, INSANE PEESONS, IDIOTS. i 56. Infants, suits by. 2 57. Infants, suits by, continued. ? 58. Infants, suits against. ? 5X Infants, suits against, continued. I 60. Infants, suits against, judgment, etc. i 61. Insane persons, idiots, etc., suits by. I 62. Insaue persons, idiots, etc., suits against. g 56. Infants, suits by. —An infant may sue for a breach of contract of employment made for him by his father ; the rehnquishment of the right to the wages by the father may be inferred from circumstances.^ A minor cannot administer upon the estate of a decedent, nor appoint an administrator.^ Where a mother was party to bill to marshal the assets of her father's insolvent estate, and set up a debt due her, in his capacity as guardian, and before final decree died, the minor lieirs were properly allowed to assert the right by petition for their own benefit as survivors.^ The afterborn child pretermitted in the will of a parent may recover from each devisee, or. from the purchaser under a devisee, the amount such devisee is bound to contribute, with- out making the other devisees parties.* X. agreed Avith Z. that his horse should go to the mare of Z., gratis, provided the pro- duce should be the property of A., an infant, the property in the produce was vested in A., and he could maintain suit therefor against a purchaser from Z.^ Generally when the riglits of an infant are sought to be enforced in an action at law, such action should be brought in the name of the infant^ by his guardian,' or next friend. ^ So, also, a suit in equity for a legacy due a minor must be brought in his name, and not in that of liis guardian ; if the legacy be a debt against the guar- dian, and one object is to obtain an injunction against its col- 161 I>TA>-TS. ^ 56 lection, the guardian may also be made a party.** As a rule an infant may sue by next friend, even though ho has a guardian, if he does not dissent ; and if the suit is necessary and projx.r, he may maintain the action notwithstanding such dissent. i" No relationship need exist between the infant and his next friend.'* Nor need permission of the court first be obtained to bring the action.i2 An infant married woman properly sues in reference to her separate property by a guardian ad Utem or next friend ;i^ but the next friend will not be allowed to maintain an action in the name of an infant wife against the wish of the infant husband.^* The next friend is no party to a suit in tlie technical sense of the term,i^ although he is responsible for costs, ^6 i^iii ig considered an officer of the court, specially appointed by it to look after the interests of the infant in whose behalf he acts ; ^' he controls the action and directs the man- ner of its management ; ^^ he may employ an attorney to con- duct the suit,^** but may not receive the amount recovered ly the infant unless specially authorized. ^"^ Any person may act as 7iext friend to an infant, no matter what his means and standing may be, provided he can give security for cost ; ^^ ho may be changed by the court at its pleasure, or may be rcquii-od to give such bond as it deem necessary.22 An action cannot be maintained in forma pauporis for the infant by his next friend ;''^^ in such case, however, the infant may sue alone.-* When the pleading fails to show that tlie parties for whom one assumes to sue are infants, it is not ground for demurrer ; if they are of age the name of the next friend maybe stricken out on motion. -a A minor under the age of puberty cannot appear in court by a curator ad litem; above that age he must be so assisted.'*^ In proper cases an infant may sue hy guardian ad litem, anl generally there is no objection to the appointment of his general guardian as such.27 TVhen an infant is rtpre- Bented by guardian ad litem, he will be directed to employ counsel to be approved by the court. ^^ When an infant sues by guardian the pleading should show due appointment. ="• Thero appeal's to be no material difference between a guardian ad Utem and a next friend.^*" The chief difference being the g 56 WHO STAY SUE AND BE SUED. 162 latter is the curator of au iufaut plaintiflf, the former of an infant defendant.^^ 1 Benziger v. Miller, oO Ala. 207 ; and see Tillotson v. McCrillis, n V't. -JTi); compare Caden v. Farwell, 98 Mass. 138; Kobinsou v. Weeks, 53 Me. IIXJ. 2 Ilea V. Englesing, 56 Miss. 465. 3 I'olhill V. Xeal, 50 Ga. 148. 4 llaskius v. Spiller, 1 Dana, 175. 5 M'Carty v. Blevins, 5 Yerg. 196. 6 Longstreet r. Tilton, Coxe, 38 ; Carkskadden v. M'Ghee, 7 Watts it S. 141 : ."^irude ?-. Clark, 12 Ala. G20; Raymond v. Sawyer, 37 Me. 4()7 ; J{()berts r. :Maddox, 5 Ark. 51 ; compare Osburn v. Farr, 42 Mich. i;34 ; but see Kicard v. C. P. Ky. Co. 15 2s ev. 167. 7 Wilson V. :Nuselt, 12 Bush, 223 ; Carkskadden v. M'Ghee, 7 Watts ife S. 141 ; Bradlev v. Amidon, 10 Paige, 235 ; Cook v. Adams, 27 Ala. 2!t5 ; Sutton v. Nichols, 20 Kan. 45 ; Deford v. State, ;iO Md. 199 ; see Bond v. Dillard, 50 Tex. 309. 8 Hooks V. Smith, 18 Ala. 339 ; Anderson r. Watson. 3 Met. rKy.) 510 ; Strode v. Clark, 12 Ala. 620 ; Klefful v. Bullock, 8 Neb. 339 ; Hurr V. Southern Rv. Co. 40 Miss. 304 ; Perkins v. AVright, 37 lud. 27 ; Brown v. Hull, 16 Vt. 676 ; Judson v. Blanchard, 3 Coun. 584. 9 Simpson ^\ King, 1 Ired. Eq. 13. 10 Thomas v. Dike, 11 Vt. 275 ; see Schuck v. Hager, 24 Minn. 343, 11 Burnes r. Wilson, 1 Mo. App. 182 ; Evans v. Mason, 1 Lea, 26. 12 Barwick v. Racklev, 45 Ala. 218 ; and see Resor v. Resor. 9 lud. 3-18 ; Klaus v. State, 54 Miss. 646 ; Bethea v. McCall, 3 Ala. 451. 13 Ex parte Post, 47 Ind. 142 ; see Adams v. Hannon, 3 Mo. 222; Dugas V. Gilbean, 15 La. An. 581 ; and compare Hopkins v. Vcrgiu, 11 Bush, 677. 14 Anderson i\ Anderson, 11 Bush, 330. 15 Bartlett v. Batts, 14 Ga. 540 ; B. 4 ; Young v. Young, 3 IST. H. 345 ; Grf'oiiman r. (.'olu'e, 61 Ind. 202 ; Smart v. Haring, 14 Hun, 278 ; Jack V. Davis, 2;)C}a. 220. 2 Smith r. Carney, 127 Mass. 131 ; Bartlett v. Batts, 14 Ga. 540 ; but see McGrlffln v. Stout, Coxe, 92. 165 IXFAXTS. j 57 3 Scliooner Davi< Faust, 1 Ben. 184 ; Wicks v. Kills, I .V.,U. A«'.ni, 444. 4 Ricord v. C. P. T.y. Co. 15 Nev. 17o. 5 Ki'jord v. C. P. Pvj'. Co. 15 Nev. 175; sop Smart r. iriirlii;:. M Hun, 278 ; contra, W'illiums r. Williams, 07 ilo. O'D. G Ilightower v. Maull, 50 Ala. 405 ; Cox v. ^V^lliamson, 1 1 Ala. :w» ; compare Price v. Ins. Co. 17 Minn. 500. 7 Muller v. Beuner, 69 III. 109 ; and see Longmire v. Pilklnton, Z7 Alj,. 2J7 ; Jordan v. Donahue, 12 R. I. 199. 8 Hughes Minors Appeal, 53 Pa. St. 503; Holmos v. S,cl v. 17 Wend. 77; and see Miller 1'. Benner, 6') 111. lo); Pond r. Ciirii--, 7 Wond. 46 ; Cagger v. Lansing, 64 X. Y. 425 ; compare Heft r. M-' i'll, 3 Pa. St. 26;5 ; O'Byrne v. Feeley, 61 Ga. 81 ; Zirkee v. McCue, 28 (;rait. 52G. 9 Jennings v. Collins, 99 Mass. 32 ; compare Carr v. Spaungel, 4 M.x App. 235. 10 Vincent v. Starks, 45 Wis. 4G3. 11 Mitchell V. .Tones, 59 Mo. 4Zd ; but see Struppman v. Muller, 52 How. Pr. 214; Hoare r. Harris, 11 111. 25; Bowles v. McAllen, I'J 111. 30 ; contra, Strange v. Gunn, 56 Ala. 611. 12 Mitchell v. Jones, 50 Mo. 4Z3 ; and see Larned %\ Honshaw, 37 Mo. 453 ; compare Bowles r. McAllen, IG 111. C); see also Zirklo f. McCue, 26 Gratt. 525 ; Hutton v. Wiiliams, '.'^ ALi. 513. 13 Hartman v. Hartman, 53 111. 104. 14 Gillespie v. Bailey, 12 W. Va. 97; Arnold v. Arnold, 11 W. Vx 443. 15 Lj'nch r. Rotan, 30 III. 19 ; Linton v. Walker, 8 Flu. 153; and s-e Sheahan v. Judge, 42 Mich. 63. 16 Linton v. Walker, 8 Fla. 15:J ; Heilman r. Martin, 2 Ark. ifi7 ; and see Gibbs i'. Lum. 23 La. Au. 527. 17 Chapman v. Chapman, 32 Ala. 107; and see Ryan v. Galhnan, 12 Rich. 3.J6 ; compare Stroup v. State, 70 Ind. 4^>. 18 Heilman v. Martin, 2 Ark. 1G7; Johnson v. James. 41 Ga. 5:7; and see Storthoff v. Reod, 32 :n. J. Eq. 214 ; Linton r. Walker, » Fla. 153 ; Redan v. Robb, Ohio, 228. 19 Goodson v. Goodson, G Ired. Eq. 241 ; see Williamson r. Wil- liams, 6 Jones Eq. 6 ' ; Storthoff r. Reed, 32 X. J. Eq. 214. 20 Davies v. Lowr 3y, 15 Ohio, 657. 21 Barnet v Lommonwealth, 4 Marsh. J. J. 383; Barnet v. Com- monwealth, 5 Marsh. J. J. 28G ; see Horton r. Horton, 4 Ired. Eq. 54. 22 Hailey v. Boyd, 64 Ala. 401. 23 Hailey v. B,vd, 64 Ala. 401; and see Gibbs ?-. Lum, 23 L-u An. 527 ; compare Abbott i'. Kensett, 33 Conn. 511 ; Stroup v. State , 70 Ind. 498. 24 Willard v. Fairbanks, 8 R. I. 4 ; compare Raymond v. Sawyer, 37 Me. 407 , Donahoe v. Emery, 9 Met. 63. 25 Becton v. Becton. 3 Jones Eq. 422 ; Zirkle v. ^fcCue, 2r. Gnitt. 528 ; and see Clark v. Piatt. 30 Conn. 285. 26 Chandler v. McKinney, 6 Mich. 219 ; Cooper r. Mi'.ylu-w. *] Mich. 52s ; but see Greenwood v. New Orleans, 12 La, .\n. 427. 2 58 WHO MAY SUE AXD BE fUED. 166 2 58. Infants, suits against. — A suit against an infant must bo against liiui in liis proper person ; ^ be cannot appear and d^'fetul tbc action bimself, nor can be appoint an attorney to do so for bim ; ^ but must appear eitbcr by guardian, =* or by a guardian ad litem appointed by tbo court. ■* He bas no power to waivo service of process, = tbe statute in tbat respect must bo strictly followed;^ ncitbcr may bis guardian nor guardian ad litem waive sucb service for bim ; ^ on erroi' tbe fact of such service must affirmatively appear.^ So also until properly served, a guardian ad litem cannot be appointed to rcioresent bim in tbe suit.^ Y\lien a guardian ad litem is appointed for tbe infant, tbe appointment sbould appear of record,^" but appearance and defense by tbe natiiral guardian may be sbown by parol, Ji and is equivalent to an appointment and defense by guardian ad litem, ;^- if tbe infant bas no general guardian a guardian ad litem must be appointed for bim.^^ So if tbe inter- ests of tbe guardian are adverse to tbe infants, or be fail to appear and defend tbe suit ; ^* and if no motion is made by tbe dofendant for tbat purpose, the duty devolves upon tbe plaintiff to bave tbc appointment madc.^^ rj\-^Q power to appoint guar- dians ad litem is discretionary witb tbe court, and as a rule not subject to revision. iiJ He sbould bo a disinterested person ; " and if upon appeal the interests of tbe infant demanded it, the appellato court would have authority to appoint a new one.'*^ "When tbo record fails to show tbat a part of tbe defendants are minors, an order made appointing a guardian ad litem for the minor defendants without naming them is void.^** Tbe guar- dian ad litem is not a party to the action ; 2" he is not liable for costs.'-^i nor can be waive any of the rights of the infant whom he rr presents. ■''^ He has but one duty, and tbat is to make as vigorous a defense of the rights of the infant as the nature oi the case admits. ^^ His authority is to protect, and tbe court will not suffer his ward to be prejudiced either by bis laches or Lis admissions.^* When an infant is sued the time prescribed by rule of court for filing dilatory pleas dates not from tbe time of tlic commencement of tbe term at which the suit is entered, but from the appointment of the guardian ad litem to 167 INFANTS. § 68 dc'fend the suit.^a An infant cannot bind liis rights In- a sub- mission to arbitration, ^fi even though a guardian ml litem is appointed to represent him, nor can such guardian bind the infant by such proceeding. 2' 1 Oliver r. McDuffie, 28 Ga. 524 ; Jack v. Davis, 29 Ga. 220 ; Tiu-ker V. Bean, 65 Me. 35:3 ; Wakefield v. Marr, 65 Me. U\. 2 FuUer r. Smith, 4') Vt. 2.>4 ; Wrisleys v. Kenyon, 2S Vt. 7 ; Wins- ton V. McLendon, 4.3 Miss. 2.57 ; and see Wright v. McNatt, 4U Tex. 42J. 3 Oliver v. McDuffie, 28 Ga. 524 ; Foulkes v. Young, 21 X. J. U 44) ; compare Brown v. Leverson, 12 HeLsk. 390 ; and .see Tncker v. Bean, 65 Me. ;>>3. 4 Winston 7'. McLendon, 43 Miss. 257; Oliver v. McDuffie, 2^ Ga, 524 ; Loyrl i\ Malone, 23 IJl. 47 ; Koacli r. Hix, 57 Ala. .57S ; Cook v. Totten, 6 Dana, lOJ ; Pucket v. Johnson, 45 Tex. 5.50. 5 Ingersoll v. Mangam, 84 X. Y. 624 ; Carter v. Ingraham, 4:1 Ala. : : Winston v. McLendon. 43 Miss. 2-57; Taylor v. Walker, 1 Jlei.sk. 7 >> ; Burrus r. Burrus, 56 Miss. 100. 6 Abdill ?'. Abdill, 26 Ind. 2SS ; Ingersoll v. Mangam, 8^1 X. Y. G25 ; Carter v. Ingraham, 43 Ala. SI ; Price v. Winter. 15 Fla. )04 ; lirown )•. Leverson, 12 Heisk. 330; Clark v. Thompson. 47 111. 27; Jones v. Mason, X. C. 561 ; Coster v. Bank of Georgia, 24 Ala. 6.5. 7 AbdUl V. Abdill, 26 Ind. 2S3 ; Good v. Xorley, 2S lown, l<>s ; Clark v. Thompson, 47 111. 27 ; contra, Ma.sson v. Swan, 6 Heisk. 4-5.5. 8 Abdill V. AbdiU, 25 Ind. 239. 9 Ingersoll v. Mangam, 84 X. Y. 625 ; Walker v. Hallett, 1 .Via. .^HO ; Preston v. Dunn, 25 Ala. 512 ; Hendricks v. McLean, 18 Mo. :« : Price V Crone, 44 Miss. 576; Ingersoll v. Ingersoll, 42 Mi.s.s. 160; Hodgt-s r. Frazier. 31 Ark. .59 ; Erwin v. Carson, 54 Miss. 284 ; Good r. Xorlev, 28 Iowa, W8 ; see also Grav v. Palmer, 9 Cal. 6:iS ; Jones v. :Mason. 1 X. C. .561 ; Tavlor r. Walker, 1 Heisk. 730 ; McDermaid v. Russell, 41 III. 4-Jl ; compare .Smith v. McDonald, 42 Cal. 487; Gottendorph r. Gold- schmidt, 83 X'. Y. 115. 10 Fuller v. Smith. 49 Vt. 2-54 ; see Priest v. Hamilton. 2 Tyler 49 ; Abdill V. Abdill, 26 Ind. 283 ; Stinsou r. Pickering, 70 Me. 275 ; compare Trieber v. .Shafer, 18 Iowa, 34 ; and see Rhoades r. RhoaU s, 43 111. 248 ; Rhett V. :5tastin, 43 Ala. 89 ; Myers v. Myers, 6 W. Va. 370. 11 Fuller V, Snath. 49 Vt. 2*1 ; Wrisleys r. Kenyon, 23 Vt. 7 : Brown V. Leverson, 12 HeLsk. 390 ; and see Trieber r. Shafer, 13 low.i. :"4. 12 Price v. Winter, 15 Fla. 99 ; Martin v. Porter, 4 Heisk, 411. :3 Stinson v. Pickering, 70 Me. 275 ; Wells v. Smith, 44 Miss. 30.3 ; < frontier v. Puymirol, 19 Cal. 632; compare Buddecke i-, Buddecke, .1 La. An. -573. 14 Swan v. Horton, 14 Grav, 179 ; Stinson v. Pickering, 70 Afe. 275 ; ^ e Freedman r. Thompson, 41 Mis.s. 51 ; Wells v. Smith, 44 Miss. ::aJ ; . ironfier v. Puymirol, IJ Cal. 6;J2. 15 Swan v. Horton, 14 Grav, 179 ; Stinson v. Pickering, 70 Me. 275 ; see C. & L. Ry. Co. v. Bowler, 9 Bush, 499. IS Smith )•. Tavlor, .34 Tex. 603 ; and see Gronfier v. Puymirol. 19 T'al. 632 ; Cowan v. Anderson, 7 Cold. 235 ; Rhoades v. Rhoades, 4:S lil. 243 ; Burrus v. Burrus, .56 Miss. 95. 17 Damouth v. Klock, 29 Mich, 2S7 ; Elrod v. Lancaster, 2 Head. 574. g 59 WHO MAT SUE XSD BE SUED. 168 IS AVaikor r. Hull, 35 Mich. 488 ; and see Cook v. Adams, 27 Ala. 11) Sullivan v. Sullivan, 42 111. 318 ; Rucker v. Moore, 1 Heisk. 7oO. '20 lirvant v, Livermore, 20 Minn. ;i42 ; McDonald v. McDonald, 24 Ind. Io. 86 ; compare Robinson v. W-^eks, .'56 Me. 106; and see Patterson r. Cave, 61 Mo. 4:^^ ; Ferguson r. Babo, »l Miss. 127 ; Van Syckle v. Rorback, 6 N. J. Eq. 2U. 3 Baker r. Kennett, M Me. 86 ; Patterson v. Cave, 61 Mo. 4.33. 4 Barker v. Hibbard, 54 N. H. .540. 5 Rush r. "U'ick, 31 0hi3 .St. .521 ; compare Lee v. Hefley, 21 Ind. 99. 6 Allen v. Hoppin, 9 R. I. 260. 7 Fersenden v. Jones, 7 Jones. 15; and see Sherry v. Fanning, SO I1L372, 8 Conway v. Reed, 65 Mo. 350; Oliver v. McClellen. 21 Ahi. 67S; conapare Eaton v. Hill. 5) X. H. •2Si ; and see Kirkpatiic-k »•. Ifall.ST Me. .S13; Chandler v. Draton,37 Tex. 4C'6: McG>ie i. Welling, 31 Leg. Int. 37 ; Burns v. Hill, ly Ga. 23 ; Marshal v. Wing, 5i3 Me. 62. 9 Ferguson v. Babo. >t Miss. 121 : Sikes v. Johnson. 16 Mass. 3fl6 ; Barker v. Lovett, 6 Mass. 80 ; Hutchings v. Engel. 17 Wis. 2:u ; .^cott V. W^atson, 46 Me. .363 ; .School Dist. v. Bragdon, 23 N. H. 516 ; Walker V. Davis, 1 Gray. 50S ; and see Tucker v. McClure, 17 lowu, 5s.3; com- pare West V. Moore, 14 Vt. 449. 10 Cunningham v. I. C. Ry. Co. 77 111. 181. 11 Shaw V. Coffin, 5S Me. 2-56 ; r-d see Homer r. Thevinir, 3 P5ck. 4'+4; Carr v. Clough, 26 X. H. 2a3 ; compare People r. KLndall, 25 Wend. 3t)9. 12 Homer v. Theving, 3 Pick. 494 ; see Schenks v. Strong. 4 X. J. L. 89 ; Fitts V. HaU, 9 X. H. 443 ; Woodman r. Hubbard, 2.5 X. H. 73 13 Burnham r. Seaverns. 101 Mass. 362 ; compare Sterliiig r. Adams, 3 Day, ASl. 14 Towne v. T\'ilev, 23 Vt. 3.50 ; and see Lewis v. Littlefield. 15 Me. 235 : Mathews v. Cowan, 53 111. ;i42 ; Homer r. Theving, 3 ri;-'<. 4 4 : compare Penrose v. Curren, 6 Rawle, 452 ; Wilt r. Welsh. 6 W atts, 10. 15 Woodward v. Xewell, 1 Pick. 501 ; and see Hartness »•. Thomp- son. 5 Johns. 160 ; Allen v. Butler, 9 Vt. 126 ; Dacosui r. Davis. 2J N. J. L. 322. 16 Leggetti'. Sellon. 3Paige,84. I 60. Infants, suits against, judgment, etc.— Judgment rendered against au infant for whom a guardian has been appointed should be entered against the defendant and not Parties — 15 I 60 'V^HO MAY SUE A>T5 BE SUED. 170 against tho guardian.^ In chanceiy proceedings no decree by default or pro confesso can be rendered against an infant.^ The answer of a guardian ad litem admitting the truth of the cliarges in tho bill cannot affect his rights with respect to him ; all tlie allegations must be proved with the same strictness as though a direct and positive denial had been interposed.^ A compromise, however, appearing to the court to be for the benefit of an infant will be confirmed, and if sanctioned by the court cannot afterward be set aside except for fraud or collu- sion.* "When the person legally competent to appear on behalf the infant has notice of tho pendency ot the suit, and appears and participates in the defense, the decree entered will be bind- ing upon the infant.^ Generally when it is necessary that the rights of infant defendants be represented by guardians ad litem, the record must show the fact of the appointment or the decree will be reversed ; ^ but the omission to make the appoint- ment is not a jurisdictional defect, and therefore does not ren- der the proceedings and judgment absolutely void; it is only ground for reversal.^ Proceedings in insolvency against an infant who is not represented by a guardian ad litem are void.^ In ]:)roceediugs in the probate court to sell lands of an infant, he must be represented by a competent person or the decree will not be conclusive as to him." Generally a judgment against an infant who has been properly represented in the .suit will be as binding and conclusive upon liis rights as though he were an adult.^*^ 1 Tucker v. McClure, 17 Iowa, .583. 2 Chufliu ?•. Kimball, 23 111. ;iS ; Wells r. Smith, 44 Miss. 303 ; Stim- ~o(i r. Pickt'riiiK, 70 Me. 275; Tucker v. Beau, Go Me. ;»J; Walsh v. \\alsli, ur. Mass. :tS2 ; .Swan v. Horton, 14 Gray. 170; Starbird ?>. -Moore, 21 Vt. .>«; Chalfant v. Munroe, 3 Dana, :iG : Hanna v. .Spoils, .') Moil. li. a» ; Metcalf v. Alter, 31 La, An. 380 ; compare Swain v. Ins. Co. 54 Pa. 8t. 459. 3 Chaffin v. Kimball, 23 111. as ; and see C. & Q. Rv. Co. v. Bowler, 9 Bush, 4!>it ; Wells v. Smith, 44 Miss. 303 ; Tucker v. Bean, 65 Me. S53 ; Carter v. Ingraham, 43 Ala. 84. 4 Walsh r. Walsh, 116 Mass. 382. 5 Fuller v. Smith, 49 Vt. 254 ; and see Rankin r. Kemp, 21 Ohio St. 052 ; (Jattendorph v. Goldschmidt, 83 N. Y. 112. 6 Myers v. Myers, 6 W. Va. 370 ; McDonald i-. McDonald, 3 W. Va. 679 ; and see Piercy v. Piercy, 5 W. Va. 202. 171 rN-s.v>T: PEESoxs axd idiots. ^61 7 Walkenhorst v. LevrLs, 24 Kan. 426 ; and see Austin v Cbarlea. town Fern. Sem. S Met. 202 ; Swan v. Horton, 14 Grav. l?.t ; Floovt-r r Kuisej- Plow Co. 55 Iowa, 670; Drake r. Hanshaw. 47 Iowa 232 ' Blike V. Douglass, 27 Ind. 417; compare Swain v. Ins (v, .>| I*.-. Sl. 453 ; De Priest v. Harris, 6S Ind. 570 ; Marshal v. Wing, 50 mV. G2. 8 Farris v. Richardson, G Allen, 119. 9 Gully r. Macy. SI X. C. 361 ; and see Ballev r. FItz Gerald. 5« rjiss. 534 ; Wells f. Smith. 44 Miss. 302; McAli.ster r. Mov?, :« Miss. 232 ; see Dunham r. Hatcher, 31 Ala. 4S6. 10 Philips r. Dusenberry, s Hun. 34S : see McC'roskv v. Parks, 13 S. C. 93 : but see Richards i\ Richards, 10 Bush. fi2». g 61. Insane persons, idiots, etc., suits by. — When a per- son is by ex jyarte proceeding fonnd to be a lunatic, he may in his own name bring an action to traverse the inquisition. > All actions brought to enforce the rights of an insane person should be maintained in his own name,- and the better practice would seem to be to add in the writ, by his guardian A. B., etc' Idiots may sue at law by next friend to be appointed by the court.* In equity they sue by their committee or guardian of their estates duly appointed,^ and the joinder of the name of the lunatic, though usual, is a mere formality ;^ the suit migJit, however, be brought in the name of either.^ In Illinois, Ver- mont, and some other States, before the apiwiutment of a guardian, suit might be maintained in the name of the insane psrson, but after his appointment suits must be maintained in the name of the guardian ; ^ after his removal or in ca*ie his interests clash with those of the insane person, suit might be maintained in the name of the latter by next friend.* If the name of the guardian of plaiutili' be omitted in the writ, it is matter of abatement which must be taken advantage of before plea'.ing the general issue or it is waived.^" The committee of a lunatic cannot bring action in his own name to recover pos- session of real estate alleged to have belonged to the lunatic prior to his appointment.^^ 1 Walker r. Russell. 10 S. C. 88 : Medlock v. Cogburn, 1 Rich. Eq. 477 ; In re Wendell, 1 Johns. Ch. 602. 2 Brooks t-. Brooks, 3 Ired. 390 ; Green v. Kornoimy. 4 Jon.*. «< ; Dearman r. Dearman. 5 Al:u 203 : compare Dorsl.einu-r r. Uuovl.ack. 1-^ X. J. Eq. 4:in: Rankin v. Warn.M-, 2 Lea. :«2 ; C. A- P. K> . (■•. r. Munsrer. 7S 111. :»1 : Lincoln r. Thrall. 'M Vt. 113; and s.o Reed r. Wilson, 13 Mo. 29 ; Buchauan v. Rout, 2 Mon. 114. g 62 WHO 2i.\Y srE JlST) be sfed. 172 3 I.ang »• \Vhid(len, 2 X. H. -j:36 ; nnd see Dearman v. Dearman, 5 Alu. -W ; Reed v. Wilson, 13 Mo. 2d ; Pelham v. Moore, 21 Tex. 756. 4 Dorsheimer ;•. Koorback, 18 N. J. Eq. -i:«i ; Stephens v. Porter, 11 Heisk. »17 ; Parsons v. Kinzer, 3 Lea, 340: Shaw r. Burney. 1 Ired. Kq l.ji) ; Pelham v. Moore, 21 Tex. 756 ; and see Cooke v. ThorTihill, 16 Tex. IMJ ; Malin v. Malin, 2 Johns. Ch. 240 ; Fetton r. Smead, 2'J Ark. 380 ; Bnrnet r. Bookstaver, 10 Hun, 485. 5 Dorsheimer v. Roorback, IS N. J Eq. 439 ; Norcom v. Rogers, 16 N. J. E(i. 4X5 ; compare Parsons v. Keazie, 3 Lea, 34G ; Modawell v. Holmes, 40 Ahu 400. G Shaw r. Burney, 1 Ired. Eq. 150. 7 Latham v. Wiswall, 2 Ired. Eq. 302. 8 C. it P. Rv. Co. Munger, 73 111. 301 ; Holdin v. Leanlin. 30 Vt. 17;) ; Lincoln r. Thrall, M Vt. 113 ; Field v. Lucas. 21 Ga. 451 ; compare Hardenbrook v. Sherwood, 72 Ind. 403 ; and see Cole v. Cole, 28 Gratt. 369. 9 Bird V. Bird, 21 Gratt. 718 ; Norcom v. Rogers, 16 K". J. Eq. 485. 10 Lang V. AVhidden, 2 X. H. 436 ; and see Jetton v. Smead, 29 Ark. 380 ; llobertson v. Lain, I'J Wend. 650. 11 Burnet v. Barker, 10 Hun, 483; and see King v. Cutts, 24 Wis. 627 ; Brooks r. Brooks, 3 Ired. 390 ; but see Alexander v. Eichbaum, 14 Pa, St. 124 ; Klohs v. Reifsnyder, 61 Pa. St. 240. 2 62. Insane persons, idiots, etc., suits against. — In a suit for interdiction, tliu defendant who is charged with insanity must be notified in pcx-son, he cannot be cited through a curator ad lioc.^ An insane person can only properly appear as a defendant in a suit by guardian or committee ;2 and if the defendant becomes insane after suit brought, his guardian should bo made a party.^ The court has power by ex parte order, upon j^roper showing, to appoint a guardian for the pur- poses of such action, although no commission de lunatico inquirendo has issued.-* So also upon proper showing it may vacate the order ;^ and if the defendant has no guardian, or he is an unsuitable person, or fails to defend the suit, the court may ai:)point some other person as guardian ad litem .^ The Common-law rule is that an insane person defends an action in the same manner as other persons, j)rocess is served upon him personally ; then if an infant he appears by guardian ; if of full age, Iw attorney.^ An action may be maintained against an insane person for necessaries furnished in good faith.*' So a contract entered into without knowledge of the insanity of de- fendant, and before that fact is found by inquisition, there being no fraud or unfairness, but the contract being upon full 173 I>'S.\>'E PEESOXS AM) IDIOTS. \ 62 consideration, and of which defendant has taken the benefit, may be enforced against him ; ^ so also a lunatic may Ik.- hii(<1 at law for a debt which he contracted when of sound niiud ; "'^ but no action can be maintained against the lunatic for money received by his guardian, unless it was applied to the use and benefitoftheinsaneperson.il An action at law will not Ho agiinst the guardian for the services of an attorney in conduct- ing the proceedings in lunacy; but the estate in the hands of the guardian is liable therefor. '^ A guardian can maintain no action against his ward for money advanced or services ren- dered as guardian until he has settled his account.'^ A lunatic ii liable for his torts to the extent of the actual damage inflicted iipon the pei'son or property of another .1* A decree shoul 1 not be rendered in an action against a lunatic until an answer has been filed and defense properly and regulai-ly made;'^ still in absence of fraud a judgment without answer would l>c erro- neous only, and not void ; ^^ but a court of equity would set it aside and open the default if necessaiy to protect the interests of the defendant.!' 1 C4ernon v. Du Bois, 23 La. An. 27 ; Stafford r. StaffortI, 1 Martin Z!s'. S. 643 ; s?e Sturges r. Longwortli, 1 Ohio St. 55!). 2 Youiit V. Turnpaugh, X? Ind. 4 ) ; and see Sturges v. Lon^worth. 1 Ohio St. 550 ; comparo Ex parts Xorthmgton, S7 Ala. 4C6 ; ^3•,?e also Van Horn r. Hann, 39 2s. J. L. 213. 3 Search v. Search, 26 X. J. Eq. 110. 4 Hunter v. Hatfield, 12 Hun, 381 ; compare Ex parte Nothington, 37 Ala. 4y,. 5 Hunter v. Hatfield, 12 Hnn, 3S1. 6 Sturges v. Longworth. 1 Ohio St. 552; Van Horn v. Hann, 39 X. J. L. 213. 7 Van Horn f . Hann, 39 X. J. L. 213 ; and see Ex part;- L. iirhton. 14 :Mass. 207; Tomliuson' r. Devore 1 Uill. 347; Allison r. Tavl.ir, 6 Dana, 8-^ ; Alclrich v. Williams, 12 Vt. 418 : Walker v. Clay. 21 Ali. s-U : compare Morris v. Clav, 8 Jones, 217 ; Mason v. Mills. (.;! X. C. o<>j ; Vv'ier r. Myers, 34 Pa. St. 377 ; Steel r. Young, 4 Watts, 4o'.>. 8 Van Horn v. Hann, 30 X. J. L. 203 ; Young v. Stevens. 4> X. H. 133 ; Sawyer v. Lufkin, 55 Me. 30J ; Hines v. Potts, 5f> Miss. .VA. 9 3rut. Life Ins. Co. v. Hunt, 14 Hun, 171 ; see Adams v. Thomas, £3 X'. C. 521 ; Carr v. HoUiday, 1 Dev. & B. »45 ; compare Eucking r. Simmons, 28 Wis. 272. 10 Stigers r. Brent, 50 Md. 215 ; Hines t- . Potts, 5o Miss. 352 ; compare Wirebach v. First Xat. Bank, 97 Pa. St. 549 ; McCormick v. LUtler, So 111. (A ; St.ate Bank r. McCoy, 6;) Pa. St. 207. 11 Hiues v. Potts, 5S 31tss. 351. g 62 WHO MAY SUE AND BE SUED. 174 12 VTioT V. Myers, 34 Pa. St. 377. 13 Smith r. Davis, -15 X. II. 570; see Davis r. Drew, G oST. I-I. 4C0 ; Plielps V, Worcester, 11 X. PI. 54 ; Tally v. Tally, 2 D^ev. .fe. B. Eq. 38(5. 14 Vv'ard v. Couatser, 4 Baxt. 64 ; INEorse v. Crawford, 17 Vt. c02 : Cross V. Kent, 32 Md. 582. 15 Sturges v. Longworth, 1 Ohio St. 554 ; Alliston v. Taj'lor, 6 Dana, 88. IG Lamphry v. Xudd, 29 N. H. 303 ; Alliston v. Taylor, 6 Dana, 88 ; and see Blake v. Respass, 77 N. C. 11:5 ; McAden i\ Hooker, 74 N. C. 28. 17 AVatson v. Smith, 7 Oreg. 440 ; and see Encking v. Simmons, 28 "Wis. 2?2 ; compare 3Ic2s'ees v. Thompson, 5 Bush, G8G. 175 mJSBA^•D and avife. z 63 CHAPTER IX. HUSBA>D AND WTFE. ? ft5. Husband and wife generally, suits by. 2 04. Suits upon contracts. 1 (i J. Suits for torts to the wife. i Of). Suits relati:ig to the separate property of the wife. 2 f)7. Suits between husband and wife. 5 6S. Suits against husband and wife. 2 63. Same continued, separate defense of wife, suits rclatiut,' t'. Ikt land, etc. I 70. Suits for torts committed by husband or wife. ^ 63. Eusband ani wifa, generally, suits by.— As a rule tlie Uv/ distinguishes between thoso rights of action that existed before coverture and those which arise afterward ; in the former case the husband and wife must be joined in the action ; ^ in the latter case, as a rule, the husband sues alone ; ■-' whenever the right of action would survive to the vdfo she should be joined in the action.^ Upon an express promise made to the husband and wife during covertui'C, founded upon a consideration moving from both, tbev may both join ;* but if the contract is implied the rule would seem to be otherwise.* For damages arising from the wrongful seizure by attachment of property exempt by law from execution sale, cither the hus- band and wife may join, or the husband may sue alone. ^ When the interest of the wife is adverse to that of the husband, she should not be joined as a complainant in the suit, but should be made a defendant.'^ Coverture a3 a disability to sue is not matter of defense, but of abatement only ;** and unless the objection is made at the proper time it is waived.** The mere suggesticn of the fact of marriage of female parties is all that is necessary to authorize the court to malie their husbands parties ; ^'^ the general rule is that a married woman cannot sue or be sued. 11 "When, therefore, suit is brought by a married woman, she must show by proper averment that she is within 2 63 "WHO MAY SUE AM) BE SUED. 176 '• I the exception. ^-^ Wlien the husband has deserted his wife, and has never beau Avithin the State, or has gone beyond its border, she may sue and be sued in her own name as a feme sole; is so when the husband has deserted his wife, and they live sepa- rately and apart from each other without her fault, and he fails to make provision for her supiwrt, she may acquire property, sue and be sued as ti feme sole.'^-^ A married woman cannot brini; a bill alone, or with any person but her husband as next friend, unless ho has become civilter mortuus, or his interests are adverse, and in that case he should be made a defendant. i* It is not necessary to obtain the authority- -of the court for the wife to sue separately from the husband x^reviously to the institution of the suit ; when the necessary facts are shown which give her the ri^ht to sue, permission will always be pre- sumed. ^^ "When the husband joins the wife in a suit, and the petition alleges that the wife is herein authorized and assisted by her husband, it is a sufficient authorization of the wife to sue.^' If pending the suit of husband and wife upon a debt due the wife when sole, she dies, at common law the suit would abate;'" but by statute it may be revived by her adminis- trator. '» 1 Story r. Baird, 14 N. J. L. 268 ; Weagle v. Hensley, 5 Marsh. J. J. 378 ; Figlitniasler v. Beasley, 1 Marsb. J. .T. 606 ; Kimbro r. First Nat. Bank, 1 McAr. 03 ; Gibson v. Gibson, 43 Wis. 24 ; compare Armstrong ?'. .Simo'.iton, 2 Mnrph. ;;52 ; Bell v. Allen, o3 Ala. 125 ; generallj- Brat- ton V. Mitchell, 7 Watts, 115. 2 8tory v. Baird, 14 X. J. L. 268 ; Fightmaster v. Beaslev, 1 Marsh. J. J. 600 ; C.'.rswell v. Schley, 5c) Ga. 22 ; Little v. Keves,'24 Vt. 121 ; Bratton v. Mitchell, 7 Watts, 115 ; Barrett v, Tewksbury, 18 Cal. 336. 3 West V. Tllghman, Ired. 107 ; and see Burch v. Clark, 10 Ired. 172' Fuller v. Xangatuck lly. Co. 21 Conn. 574; compare Clapp v. Stonin.'^ton, 10 Pick. 470 ; see also Wheeling ?•. Trowbridge, o W. Va, 3 :«.•] ; Parker v. Way. 46 X. H. 40 ; Haile v. Palmer, 5 3ro. 418 ; Weagle V. IIen!-D AST) WIFE. ^ 64 8 Harden V. Attleboro, 7 Gray, 3.SS : and see TLssot v. Throck- morton, Cal. 473 ; compare C. & X, \V. Ry. v. Button, M 111. 410 ; Kimbro i'. First Natl. Bunk, 1 McxVr. 67 ; Young v. Wurd, 21 111. 225. 9 Tissot r. Throckmorton, 6 Cal, 473 ; and see Tissot i\ DarUn^, 7 Cal. 2-io ; Walker v. Giiinan, 45 Me. ;» J Hoop i-. Flummer, 14 Ohio St. 44S ; Packet Co. v. Clough, 20 Wall. 528. 10 Dickinson v. Trout, 8 Bush, 443 ; and see Buck v. Flsb8r,2 Colo. 710. 11 Cowand v. Pulley, 9 La. An. 13; Kimbro v. First Nat. Bunk, 1 McAr. 6.5 ; Tucker v. Scott, 3 N. J. L. 95.5. 12 Cowand v. Pulley, 9 La. An. 13 ; Gregorj' v. Paul, 15 MaAs. .11 ; Mclntire >'. Cbappell, 2 Tex. 37S ; Botkin v. Earl, 6 Wis. 3D6 ; see Ken* nedy v. Williams, 11 Minn. 31s. 13 Clark v. Valentine, 41 Ga. 14.b ; Gregory v. Pierce, 4 Mc-t, 47S i Gregory r. Paul. 15 Mass. 31 ; and see Love r. Moynehan, IG III. 27i ; Falhvickle v. Keith, 1 Heisk. 361 : Cornwall r. Hoyt, 7 Conn. 427 ; Ko- land V. Logan. !■> Ala. 307; compare Green v. Lyndes, 12 Wis. 405; Laughlin r. Eaton, 54 Me. 157. 14 Love V. Movnehan, 16 111. 879; and see Reilley v. Roilley, 4 Brewst. K) ; Benadum v. Pratt, 1 Ohio St. 404 ; but see Tucker r. Scott, 3 N. J. L. 95.5 ; see also Davis v. Woodward, 19 Minn. 175 ; com- pare Stith V. Patterson, 3 Bush, 134. 15 Bradlev r. Emerson, 7 Vt. 370 ; and see Bieu v. Hea,th, 6 How. 239; Belonquet r. Lanata, 13 La. An. 3; Ward v. Ward, 2 iJev. Eq. 5.54: Luttv.-ick v. Hamilton, 9 Heisk. 310; Stephens r. Porter, 11 Heisk. :J42. 16 Mclntire v. Chappell, 2 Tex. 378 ; and see Jemison v. Barrow. 24 La. An. 171 ; compare Tutorship of Stokes, 22 La, An, 2ai ; a^a also Blanc V. Dubroca, 6 La. An. 360. 17 Dunn r. Woodward, 11 La. An. 265 ; and see Tutorship of Stokes, 22 La. An. 204 ; Howard v. Copley, 10 La. An. 504. 18 Pattee v. Harrington, 11 Pick. 222 ; see Ratlid" v. Davis, .13 Miss. 108. 13 Paltee r. Harrington, 11 Pick. 222. § 64. Suits upon contracts. — Where the promise was to the wife wliLU sole she must join in an action i^.pon it,* and the declaration must show that she is the meritorious cause of action. 2 If the husband seeks by bill in equity to impeach a marriage agreement made by him with his wife before marriage, she must be made a party defendant and not be joined with him as co-plaintiff.^ When a female plaintiff marries i->endiug the suit, her husband is properly joined as plaintiff with her.* Upon an express promise to the wife during coverture at com- mon law, the husband could either sue alone, ^ or jointly with the wife.i^ A. separated from her husband in 1870, and was divorced from him in lS7i; from 1870 to 1875 she boarded X., and subsequently brought suit against him for the value § 65 "WHO MAY SUE AND BE SUED. 178 thereof, held the action conia be maintained in the name of A., for the board furnished prior to the divorce, and subsequent to the separation.^ Where by statute the earnings of the wife accrue to her for her sole use, an action to recover tliem should be brought b}- the wife alone, without joinder of the husband. ^ A wife appointed custodian of her insane husband cannot recover compensation from his estate in that capacity.^ On a contract to pay to the husband or his wife annually a certain sum of money during the life of the longest liver of them, if called for, upon the death of the husband the cause of action survives to the wife.^" When a non-negotiable note given to a feme sole, who afterward married, was assigned by the hus- band, held the assignee properly brought suit upon it in the names of the husband and Avife, and could prosecute it to judg- ment, although pending the suit the husband and wife were divorced. ^^ 1 Bond r. Baldwin, Coxe, 216 ; Brown v. Fitz, 13 N, H. 286 ; IMorse V. Earl, 13 Wend. 272 ; and see Tuttle v. Fowler, 22 Conn. 63. 2 Pickering v. DeRochemont, 45 I:^, H. 76 ; Alexanders v. Good- win, &4 N. H. 424 ; see Hawver t\ Seibert, 4 W. Va. 589 ; compare Mil- ton V. Haden, 32 Ala. 40. 3 Hale v. Gause, 3 Ired, Eq. 116. 4 Flynn v. riynu,21 La. An. 168 ; see Lamkin v. Dudley, 34 Ala. 116. 5 Bodgett ?'. Ebbing. 24 Miss. 245 ; Sutton v. Warren, 10 Met. 454 ; Steward ?•. C'hiincc, 3 X. J. L. 830 ; and see Ahrens r. State Bank, 3 S. ('. 410 ; Temploton v. Cram, 5 Me. 417 ; compare Cram v. Burnham, 5 Me. 213 ; Blackwood v. Brown, 32 Micli. 105. • 6 Bodgett V. Ebbing, 24 Miss. 245 ; Lowry r. ]SraflF,4 Cold. 370 ; com- pare Fallwi?kle r. Keith. 1 Heisk. 361 ; and see Hawver v. Seibert, 4 \V. Va. o3J ; Milton v. Haden, 32 Ala. 40 ; Jordan v. Hubbard, 26 Ala. 436. 7 Berry v. Teel, 12 R. I. 267 ; compare Reynolds v. Robinson, 64 N. Y. 5J2 ; Brooks v. Schwearin, 54 N. Y. 347 ; Gould i\ Carlton, 55 Me. 514 ; Lainer v. Ross, 1 Dev. & B. Eq. 40 ; Reilley v. United States, 7 Ct. of CI. 500. 8 Allen v. Eldridge, 1 Colo. 288 ; Cooper ^i. Alger, 51 N. H. 174 ; and S20 Tanks v. Grovor, 57 Me. 583 ; Meriwether v. Smith, 44 Ga. 543 ; Fowlo V. Tidd, 15 Gray, 94 ; Burke v. Cole, 97 Mass. 114 ; but see Gay v. Rogers, 13 Vt. 342. 9 Grant v. Green, 41 Iowa, 83. 10 Prindlo r. Caruthors, 15 X. Y. 430. 11 Tuttle ?'. Fowler, 22 Conn. 63 ; compare Motlej' i\ Sawyer, 34 Me. 540. § 65. Suits for tcrts to the wife. — At common law, as a nile, the husband and wife must join in an action to recover dam- 179 HUSBAXD AND WTFE. \ 65 ages for injuries either to the person of the wife or to her proi>- ertv ; ^ but this was not the case if she had been deserted by her husband and they were living separately without her fault.'' "Where the injury to be redressed is one tliat may be compen- sated in damages, or the right of property be tried in an action of replevin, the plaintifi^ although a married woman, u still required to resort to the forms of action prescribed by the common law with this exception, she must sue by next friend.' In detinue the husband and wife must join for a chattel of the wife detained before marriage and held adversely.* If reduced to possession by the husband after mai-riage he should sue alone. 5 For goods sold by husband to wife but not delivered, she cannot maintain replevin against attaching creditors of husband.^ For a tort committed upon a wife at common law two actions will lie, one by the husband alone for the less of services, expenses, etc.,^ and the other for injuries to the per- son of the wife.*^ In the latter case the husband and wife must be joined.^ Now in many of the States by statute a married woman may bring an action in her own name for injuries to her person or character in the same manner as though she were sole.^" For special damages accruing to the husband, as for loss of society, services, expenses, etc., he may sue alone." At common law if death resulted instantaneously from the injury he could not recover.^^ gg iu action by husband and Avife for injuries to the latter, if she died pending the suit, it abated and could not be revived. ^^ Now by statute it may be revived and prosecuted by her administrator alone.^' So also for injuries causing her death, though no action had been com- menced to recover therefor, her administrator may maintain suit.i^ When plaintiff in an action for slander marries pend- ing the suit, her husband should be joined as plaintiff with her;!" so also for slander to a married woman the action should be in the name of the husband and wife ; i' but if the husband has deserted the wife and keeps without the jurisdic- tion of the State, she may sue as a feme solc.^^ The husband cannot recover in an action brought by him alone for such injury unless he aver and prove special damage to himself. ^^ g 65 "VV-HO MAY SUE AND BE SITED. 180 For a slander to liuebaud and wife a joint action for all dam- ages cannot be maintained, there must be two actions. 2" A distinction lias been made between words actionable per se and those actionable only i:pon proof of special damage; in the former case the husband and wife must join in the action, while in the latter the husband must sue alone. 21 An action cannot bo maintained by a married woman against a person who by wrongful acts entices away her husband, whereby she is deprived of his society and support; 22 but an action on the case will lie in favor of the husband and against one who entices away his wife,23 and this whether the wrong- doer be the father of the wife or any other person. 21 In the former case, however, the evidence of improper motives must be stronger than in an action against a stranger.20 Unless a defendant has directly or indirectly attempted to persuade the wife to leave her husband, or having left him not to return to him, there can be no recovery ;2« thus exercising ordinary hospitality in permitting a mother-in-law to reside in the family, although forbidden by the husband, will not sustain the action. 2' When a defendant has debauched the wife of plaintiff a right of action is completers The action is not for the injury to the wife, like battei'y, slander, etc., there- fore a recovery is not defeated by her death before suit brought. 2« It does not proceed upon the theory of loss of services, but for injury by the dishonor of his bed, alienation of his wife's affections, destruction of his domestic comfort, and the suspicion cast upon the legitimacy of her off-^pring.^" The fact that plaintiff is living in an open state of adultery may be shown in mitigation of damages, but will not be a bar to the action. ^1 Collusion between the husband and wife as to the matter of bringing the action will be no bar to a recovery, but if the collusion of the husband and wife resulteel in the offense of the defendant it is a bar to the action. ^2 To support the action there must have been a valid marriage,^^ and the parties must have been living together as husband and wife, and not separately and apart by their joint consent."^ In aii action to recover damages for a malicious prosecution of a married 181 HTSBAND AXD WIFE. /J $5 ■woman, tlie husband should be joined as plaintiff ;33 but if by statute the amount of the recovery would be the geparate property of the wife, she may sue alone. ^'^ For a conversion of the property of a married woman occurring before marriage, an action to recover therefor should be brought in the joint names of husband and vrife.^^ If the conversion occurred after marriage the husband should sue alone. ^^^ The wife cannot maintain an action therefor even though she be living sepa- rate and apart from the husband.^** When the money of a married woman (separate property) is fraudulently loaned by the husband, and a note therefor taken in his name, she may recover the amount and interest in an action brought in her name.*" An action founded upon a contract made in rela- tion to the personal security of the wife, which, as it does not vest absolutely in the husband, must be maintained in the name of the husband and wife.*^ After divorce a wife can- not maintain an action against her former husband for a tort committed by him upon her during coverture. *- 1 Burger v. Belsley, 45 111. 74 : Ballard v. Russell, .S3 Mp. 196 : and see Railroad Co. v. Cox, 57 Ga. 252 ; Keeney v. Good, 21 Pu. .St. :i>J. 2 Burger v. Belsley, 45 111. 75 ; see Ballard r. Russell. *? Me. infi ; compiire Cit\- of Peru v. French, 55 111. 32;J ; (iustiu v. Carpenter, 51 Vt. 5S7 ; and see Anderson v. Anderson, 11 Bush, .320; Laughlin r. Eaton, 54 :Me. 155 ; 31. & L. Ry. v. Herrick, 13 Bu.sh, 125. 3 Frazier v. ^Vhite, 4'J Md. 8 ; and see Strassburger v. Barber, 33 Md. 103. 4 Armstrong v. Simonton, 2 Murph. 352 ; and see Brown r. Fitz, 13 ^•. H. 2S5. 5 Shiers r. Alexander, 1 Hawks, 67 ; generallv Fairchild r. Chan- stelleux, 8 Watts, 412 ; Brown v. Fltz, 13 X. H. 2S5. 6 Woodruff r. Clark, 42 X. J. L. 198 ; compare Jordan r. Cum- mings, 43 N. H. i;J6 ; generally Hobbs v. Hobbs, 70 Me. 3*}. 7 Smith r. -St. Joseph. 55 Mo. 45S ; but see Sandford v. Augusta. ;C Me. 537 ; compare McDonald v. Chic. o ; Rumsej' v. Lake, 55 How. Pr. 'MO; C. it N. W. Rv. Co. c. Button, (W 111. 411 ; C. B. & Q. Ry. Co. v. Dunn, 52 III. 261 ; Railroad Co. r. Doolittle, 7 Nev. 4S6 ; see Klein v. Jewett, 2(i N. .7. Eq. 4.S0; Tuttle v. Chic. & R. I. Ry. Co. 42 Iowa, 510; l)Ut see (jibson V. Gibson, 43 Wis. 24 ; Anderson v. Anderson, 11 Bush. 329. 11 Berger v. Jacobs. 21 Mich. 221 ; Mowry v. Chaney, 43 Iowa, 610 ; and sje Kavanaugh v. Zanesviile, 24 Wis. 618; Klein v. Jewett, 26 X. J. Kq. 4!>0; King r. Thompson, 87 Pa. St. 3fiS ; see also Lewis v. Babcock, IH Johns. 444 ; Hoard v. Peck, .56 Barb. 203 ; compare Wheel- ing V. Trowbridge, 5 W. Va. ;^ ; and see Hunt v. Winfield, 36 Wis. 156 ; Whitcomb v. Barre, 37 Vt. 149. 12 Eden v. L. A P\ Ry. Co. 14 Mon. B. 168 ; and see Mowry v. Chaney, 43 Iowa, 610; Green v. H. R. Rj'. Co. 28 Barb. 9; Carey v. Berkshire Ry. Co. 1 Cush. 477. 13 Saltmarsh v. Candia, 51 X. H. 73 ; Xorcross v. Stewart, 50 Me. 88. 14 Saltmarsh i'. Candia, 51 X. H. 76 ; Xorcross i'. Stewart, 50 'Me. 88 ; West V. Jordan, 62 Me. 486 ; but see Long v. Morrison, 14 Ind. 539. 15 Whiton v. C & X. W. Rv. Co. 21 Wis. 308 ; itowry v. Chanev, 43 Iowa, 611 ; Dickens v. N. Y. Cent. Ry. Co. 28 Barb. 41 ; but see Kear- ney V. B. & W. Ry. Co. 9 Cush. 108 ; Georgia Ry. Co. v. Wynn, 42 Ga. 333. 16 Gibson v. Gibson, 43 Wis. 24 ; but see Leonard v. Pope, 27 Mich. 146. 17 Smith V. Silence, 4 Iowa, 324 ; Gibson v. Gibson, 43 Wis. 24 ; Enders v. Beck, 18 Iowa, 87; and see Gazynski v. Colburn. 11 Cush. 10; H'lrt V. Crow. 7 Blackf. :i5l ; Smalley v, Anderson, 2 Mon. 57; Throgmorton v. Davis, 3 Blackf. 383. 18 Smith V. Silence, 4 Iowa, 324 ; Beach v. Beach, 2 Hill, 260. 19 Johnson v. Dicken, 25 Mo. 533. 20 Gazynski v. Colburn, 11 Cush. 10 ; and see Hart v. Crow, 7 Blackf. 351. 21 Beach v. Ranney, 2 Hill, 316 ; but see Ryan v. Madden, 12 Vt. 55 ; Shafter v. Ahalt, 48 Md. 173 ; and compare authorities, supra. 22 Van Arnam v. Ayers, 67 Barb. 545. 23 Barbee v. Armstead. 10 Ired. 532 ; Barnes v. Allen, 30 Barb. 668 ; Smith V. Lyke, 13 Hun, 204 ; and see Huotr. WHse, 27 Minn. 60; see also Van Arnam v. Ayers, 67 Barb. 545. 24 Bennett v. Smith, 21 Barb. 441 ; Hutcheson v. Peck, 5 Johns. 208. 25 Hutcheson v. Peck, 5 Johns. 208. 26 Schimernan v. Palmer, 4 Barb. 227 ; Hutcheson v. Peck, 5 Johns. 208 ; Turner v. Estes, 3 Mass. 318 ; Smith v. Lyke, 13 Hun, 2W. 27 Turner v. Estes, 3 Mass. 318 ; and see Bennett v. Smith, 21 Barb. 28 Yundt v. Hartrunft, 41 111. 11. 29 Yundt v. Hartrunft, 41 111. 12; compare Fry v. Derstler, 2 Yeates, 270. 30 Yundt V. Hartrunft, 41 111. 17; and see Xorton r. Warner, 9 Conn. 174. 31 Rca V. Tucker. 51 111. Ill ; and see Xorton v. Warner, 9 Conn. 174. 32 Rea v. Tucker, 51 111. 112. 1S3 HTSBAKD A>-D VTIFE. \ 66 33 Forney v. Hallacher. 8 Serg. & K. 161. 34 Frj- V. Derstler, 2 Yeates, 279. 3.5 Lausjhlin v. Eaton, 54 Me. l.iS ; Hooper v. Haskell, .% Jfr'. 2.'Jl ; compare Barton v. Kavanaugh, 12 La An. ,VA. 36 Anderson v. Friend, 71 111. 477. 37 Broome v. King, 10 Ala. 822 ; see Richardson v. Means, 22 Mo. 438. 38 Gerrv v. Gerry, 11 Gray, 381 ; Bhinchard v. Suwyor, 2 liarh. .^V,; and see Rawlings v. Rounds, 27 Vt. VJ ; Turnley v. f . 11. «fc I. Co. b\ Tex. 451. 39 Myers v. Griffis, 11 Rich. 562 ; see, however, Ilenessey v. White, 2 Allen, 41* ; Davis v. Zimmerman, 40 Mich. 25. 40 Wilkins v. Miller, 9 Ind. 101 ; and see Walker v. Coleman, si ill. 391 ; see also Kueeland v. Fuller, 51 Me. 519; Chappell r. Boyd, 61 Ua. 666. 41 Fuller v. Nangatuck Ry. Co. 21 Conn. 573; Warner v. Unclf Sam, 9 Cal. 728; see Pollard v. Railroad Co. 101 U. S. 224; compare Holmes v. Holmes, 9 La. 250. 42 Abbott V. Abbott, 67 Me. ;i05 ; and compare Hobbs v. Hobbs, 70 Me. 3S3. I 66. Suits relating to the separate property of tlic wifa, may be maintained by the wife in her own name alone ; ^ thijj rule is to be confined to the corpus of the property, and for damages to the property itself, as distinguished from its use ; the rule with reference to the rents, issues, and profits is dif- ferent, in these the husband has an interest.^ So in several of the States the power to sue alone with reference to her sejmrate property does not involve the necessity of so doing ; she may sue alone, or may unite her husband in the action at her election.' For goods equitably belonging to the wife under an anti-nnptial agreement, the husband may maintain suit as her trustee.* In equity the wife may sue alone, ^ but the husband may be joined even though he has no interest.*^ When in consequence of any unauthorized act of the husband, violative of the rights of the wife, it becomes necessary for her to resort to a suit, she need not join the husband, he is more properly made a party defend- ant.' If the husband lose money at gaming he may maintain a statutory action (Ala.) to recover it back, even though it belong to the corpus of his ^vife's statutory separate estate." When the property of the wife is levied upon by the creilitong of the husband, an action for damages therefor should Ikj pros- ecuted in the name of the husband and wife to the use of the g 66 WHO MAY SL'E AND BE SUED. 184 wiiiy In suits relating to the lands of the wife, the husband is not bound to unite as a party ; nor is he bound to prosecute such suit pending at the tirae of marriage. ^" A suit by hus- band and wife to recover land which she deeded when an infant is a disaflivmancc of her act of salc.i^ If the interests of the husband and wife arc conliicting, she may sue alone, mak- ing him a party defendant. '"-^ In ejectment for lanels of the wife the husband should be joined as co-plaintiff, ^^ even though he is under guardianship. i* "Where title to lanels is in the wife she may prosecute a writ of entry without joining her hus- band.'^ If the lands are not separate property of the wife, the hu.-^band may maintain ejectment to recover possession without joining her ;'*> but for her separate property the wife may maintain ejectment even against her husband,^' auel the fact that he lias made valuable improvements thereon is no defense.^'* The husband and wife are proj)erly joined as par- tics in a petition for partition of lanels, in which she is inter- ested, if their interests elo not conflict ; ^^ so also in a bill to remove a cloud from the title to her land. 2" A court of equity will not entertain such bill, however, while the defendant is in adverse possession of the land under claim of title. 21 In an action for a trespass committed to the lands of the wife before her marriage, the husband and wife should be joined ; 22 and he is properly joineel in an action to recover for damages done to her real property after coverture ;23 so both may join with other tenants in common for the same injury to their joint prop- erty.2i Where husband anel wife are in the possession of land which is her sole and separate property, they may recover jointly for an injury to the possession ; 2= but the wife may sue alone, although she has a husband who lives with her upon the land and cultivates it, provielcd he has no other rights than these. 2« If, however, the wife allows her husband without oljjection to control the land and use the income as his owti he should sue alone ; 2' for an injury to the reversion she must sue alone. 28 In a writ of waste for injuries to the lands of the estate of tlie wife, the husband and wife must join. 25* When an action for injuries to the land of the wife has been commenced 185 HUSBA>-D A^TD WIFE. ^ 66 in the joint names of the husband and wife, if the husband die jyendente lite, the action may proceed in lier name.*" So if the wife die the action survives to the husband.*' In an action for the obstruction of a way appurtenant to the lauds of the wife, either the husband and wife may join,*- or the husband may sue alone.** In an action to recover rents, issues, and profits of the lands of the wife accruing since marriage, the husband may sue alone : ** but those which accrued prior to marriage bihjng to the corpus of her separate property, and must be recovered by suit in her name.*^ An action to enforce an agreement to convey lands made to the wife alone should be maintained in her uame without joining her husband.*^ In an action to recover the purchase price of land, the wife may either sue alone or jointly with her husband.*^ So where land is con- veyed by husband and wife an action may be maintained in their joint names for the purchase piice,*^ A married woman who induces a buyer to purchase her lands by agreeing that a portion of the purchase price may be applied in extinguishment of a debt due by her husband, cannot, after conveyance of the premises, repudiate the agreement as to the husband's debt, and compel the purchaser to pay the full pur- chase price. *^ In an action to recover the distributive share of the wife in the estat3 of a decedent, as the cause of action would upon the death of the husband survive to the Nvife, the suit is properly brought in their joint names. ^" If, however, .as in some States, such share vests absolutely in the husband he may maintain an action therefore in his own uame alone, either before or after her death ; " so if the share vests in the wife as her separate estate, she may maintain the action in her own name alone. ■*'^ In an action to recover lands claimed as a home- stead th3 husband and wife should join.^* So, also, to restrain the collection of an illegal tax thereon.** Also in foreclosure suits. -i^ After the death of the husband the wife has such an interest in the homestead (it being jurt of the community property of herself and her deceased husband) as will authorize her to sue for injuries to crops belonging to her and grown thereon, or for damages to the land caused by overflows after g 66 WHO MAY SUE AKD BE SUED. 186 the death of her husband.** A widow who is entitled to dower in lands which has not been assigned to her may maintain an action at law to recover the same against a grantee of her hus- band who denied her rights therein.*' "When pending a suit by a widow for her dower, she intermarries, her husband may be joined as co-plaintiflf ; ^'^ in such suit infant heirs should not be made co-plaintiffs with her, but should be made de- fendants.'"' 1 llutton V. Williams, 35 Ala. 503 ; Cambell v. Galbreath, 12 Bush, 461 ; and see Forbes c. T uckerman, 115 Mass. 118 ; Adams i'. Sater, 19 Iiul. -ll!); .shocklev v. Shockley, 20 Ind. lOt) ; see also Davis v. Her- rick, 37 Me. 31)8 ; Collen v. Kelsey, 39 Me. 299 ; Boa! v. Morgiur, 46 Mo. 49 ; but see C'lafliu v. Van Wagoner, 32 Mo. 253 ; Matson v. Matson, 4 Met. 2(>1 ; Jordan v. Cummings, 43 N. H. 136 ; Davis v. First Nat. Bank, 5 Neb. 246 ; compare Spear v. Lumpkin, .39 Ala. 602 ; Carter v. Owens, 41 Ala. 221 ; Chappell r. Bovd, 61 Ga. 666 ; see also Rader v. Neal ; 13 W. Va. as6 ; Chaplin v. Holmes, 27 Ark. 416 ; McComas v. Ins. Co. 56 Mo. 573; Gribble r. Haynes, 22 La. An. 141 ; Kimbro v. First Nat. Bank, I McAr. 65; Kramer v. Conger, 16 Iowa, 436; contra, Lignoski v. Brneo, 8 Fla. 270. 2 Pickens v. Oliver, 2!) Ala. 532 ; and see Shear v. Lumpkin, 39 Ala. 602; Carter v. Owens, 41 A la. 221 ; but compare Davis r. First Nut. Bank, 5 Neb. 246 ; and authorities, supra ; see also Snyder v. Webb, 3 Cal. 87. 3 Remheimer v. Carter, 31 Ohio St. 581 ; and see Berry v. Tibbatts, II ]\[(>n. 15. 2.J6 ; llackett v. Bonnell, 16 Wis. 476 ; Foote v. Carpenter, 7 Wis. 317 ; BotUin v. Earl, 6 Wis. 396 ; Corcoran v. Doll, 32 Cal. J/O ; Cal- derwood v. Pyser, 31 C"al. 3.35 ; Van Maren v. Johnson, 15 Cal. 310 ; compare Gee v. Lewis, 20 Ind. 149 ; see also Kennedy i'. Williams, 11 Minn. 318; Nniinger r. Comm'rs, 10 Minn. 134; Wolf v. Banning, 3 Minn. 206; but see Draper t;. Stouvenel, 35 N. Y. 513 ; Acklev v. Tar- box, 31 N. Y. .564; Cannon v. Hemphill, 7 Tex. 199; Clafiin t'. Van Wagoner, :r2 Mo. 254 ; generally Bartlett v. Bovd, 34 Vt. 260 ; Turnley V. T. B. & I. Co. 54 Tex. 451 ; Chestnut v. Chestnut, 72 111. 376. 4 Smith V. Chapbell, 31 Conn. 502 ; the wife should also be joined, Mertens v. Loewei^sberg, 6D Mo. 211 ; compare McMullen v. Van Zant, 73 111. 131 ; and see Friend v. Oliver, 27 Ala. 534. 5 Bader v. Neal, 13 W. Va. 386 ; Chaplin v. Holmes, 27 Ark. 416 ; Forbes V. Tuckerman, 115 Mass. 118; Pennington v. Acker, SO Miss. 164 ; see Bridges r. Phillips, 25 Ala. 137. 6 Burns v. Lynde, 6 Allen. 306; Forbes v. Tuckerman. 115 Mass. 118; see .Michan v. Wyatt, 21 Ala. 826; but see Rogers v. Torbut, 58 Ala. 524 ; s e also Barnes v. Barnes, 64 Ala. 380; compare Bartlett v. Boyd, ."4 Vt. 2(30 ; Dunnahoo v. Holland, 51 Ga. 147 ; Vreeland v. Vree- land, 16 N.J. Eq. 520; Sherman v. Burnham, 6 Barb. 403. 7 O'Brien r. Hilburn, 9 Tex. 2^8 ; compare also Wing v. Goodman, 75 111. 102 ; McKay v. Treadwell, 8 Tex. 180. 8 Harris v. Brooks, 56 Ala. .390. 9 Keeney v. Good, 21 Pa. St. 355. 10 Fauntleroy v. Crow, 5 Mon. B. 140 ; Elliott v. Newvold, 6 Jones, 10; Prescott r. Jones, 29 Ga. 60; generally C'alderwood v. Pvser, 31 Cal. :«5. 11 Chadbourne v. Rackliflf, 30 Me. 360. 187 HUSBAND A>-D WIFE. \ 66 12 nar::i:i r. Gorard, 10 Bush, 261 ; sse Barrett r. Dough'v, ir, N j Eq. SdO ; comnar3 Day v. Bishop, 71 Me. i:W. " ' ' 13 Kelsey r-. rianmor, IS Conii. 310; Brutton v. Mitchell, 7 Watts 115; compare Elliott ?•. Xewvolcl, fi Jones, 10; and sop Al!i"' r' Schmitz, 17 Vris. 170; Westeott v. Miller, 42 Wis. \ZZ\ Thompson r* Green, 4 Ohio .St. '222. 14 Hamilton ?•. Colvvell, 10 B. I. 40. _15_ Cahooar. Coe, 57 >'. H. 630; generally Wentwortli v. Remlck, 47 X. II. 227. 16 Cooper v. Ord, 60 Mo. 430 ; see Topping v. Sadler, 5 Jones, a>3 ; and compare Park v. Pratt, ;J3 A^t. i>48. 17 Wood V. Wood, IS Hun, 351 ; compare Whitnev r. Whitnev. 49 Barb. 31) ; Vv'right v. Wright, 54 N. Y. 433 ; and see Mini-r v. Minier. 4 Lans. 4il. 13 Wood x\ Wood, IS Hun, 351 ; Minier r. Minier, 4 Lan.s. 421. 19 Kindell r. Titus, Heisk,74:j; compare Stephens r. Porter. 11 Hoisk. 342; Molinary ?'. Fernandez, 2 La. An. 567; and s -e Foster v. Dennison, y Ohio, 121 ; Hutton v. V,*illiams, 35 Al.a. 503 ; hut s;-^ Howe r. Blanden, 21 Vt. 313. 20 Clark v. Ins. Co. 52 Mo. 276. 21 Daniel v. Stewart, 55 Ala. 231 ; and see Clark v. Ii:s. Co. 52 Mo. 270. 22 Hair v. Melvin, 2 Jones, 61. 23 Thompson v. Xoble, 3 Pittsb. Rep. 201 : Deans v. Jones. 6 Jonos. 230; and see Little v. Downing. 37 X. H. 364; Thuchcr r. Phinui"V,7 Allen, 1.50; compare Allen v. Kingsbury, 16 Pick. 2:is ; and s.-e Tall- mad.^o V. Grannis, 20 Conn. 217; Meader v. .Stone, 7 Met. l-Vt; Arm- strong V. Colby, 47 Vt. 367 ; but see Thompson v. Green, 4 Ohio St. 222. 24 Deans r. Jones, 6 Jones, 230; compare Williams r. Lauier, Busb. 32. 25 I. B. & W. By. Co. v. McLaughlin, 77 111. 277 ; 111. "Cent. Ry. Co. )•. Grable, 46 111. 445 ; generally Mass v. Plummer, 63 Me. 267 ; biit see Boos V. Comber, 24 Wis. 433. 26 Boos V. Gomber, 24 Wis. 499 ; and see XortO!i v. Craig. 68 Me. 277 : Bradford v. Hanscom, 63 Me. 103 ; same effect, Chicago ?•. McGraw, 75 111. 563. 27 Lyon v. G. B. & M. By. Co. 42 Wis. .5-52 ; compare Brevard r. Jones, 50 Ala. 241. 23 T. B. & W. Bv. Co. v. McLaughlin, 77 111. 277 ; and see 111. Cent. Bv. Co. V. Grablo, 46 111, 445 ; Lvon v. G. B. & M. Rv. Co. 42 Wis. 5.^2 ; Bradford v. Hanscom, 63 Me. 103; see Brevard v. Jones, 50 Ala. 2;©; Woodman v. ZSTeal, 43 Me. 267. 29 Thacher v. Phinney, 7 Allen, 1.50 ; Williams v. Lanier, Bush. .*?!. 30 Little r. Downing. 37 X. H. :5e4 ; see Wood v. Gri;rin.4fi X. If. 2S0: Tallniad'^e v. Grannis, 20 Conn. 2u8 ; generally Wass c. Plummer, 6S "Sla. 267 ; Armstrong v. Colby, 47 Vt. 364. 31 Wood V. Grifan, 40 X. H. 237 ; see Tallmadge v. Grannis, 20 Conn. 238 ; but see Buck r. Goodrich, 33 Conn. 41. 32 Adams v. Barry, 10 Gray, 361; Cushing r. Adams, is Pick. 110; Taylor v. Knapp, 25 Conn. 512. %\ Adams v. Barry, 10 Gray, 361; and see Taylor r. Knapp. 25 Conn. 512. g 67 WHO MAY SUE A>T) BE SUED. 188 r,4 Bocffs V. Price, f>4 Ala. 519 ; see Bentley v. Simmons, 51 Ala. 165 ; HolliHeld r. Wilkinson, 54 Ala. 276 ; generally Clapp !•. Stoughton, 10 Pic-k. -16:$; Dold v. (ieiger. 2 Gratt. 94. 35 Boggs V. Price, 64 Ala. 519. 36 Stamhoffski v. Hooper, 75 111. 243. 37 Kays r. Phelan, 10 Cal. 129. 38 Miilherrin v. Hill, 5 Ileisk. 60 ; generally Scovil v. Kelsey. 46 111. »45 ; Hutchins v. Oilman, 9 X. 11. 362. 39 Meilov v. Butler, 26 Oliio St. 536 ; generally Roach v. Randall, 45 Me. 438 ; ISTorthlngton v. Faber, 52 Ala. 45. 40 Brvant v. Puckett, 3 Hawy. 254; Griffith v. Coleman, 5 Marsh. J J cm ; Trible v. Frver, 5 Marsh. J. J. 180 ; and see Pierce v. Dustin, 24 X II 425 ; Howard v. Gilbert, 3J Ala. 729 ; but see Goddard v. John- son 'l4 Mck. 352; Windson v. Bell, 61 Ga. 675; compare Dorsey v. Simmons, 4 >Ga. 254; Sneed v. Waring, 2 Mon. B. 525; Blackwell v. Blackwell,33Ala. 59. 41 Goddard v. Johnson, 14 Pick. 352; Hapgood v Hioughton, 22 Pick, 4S1 ; generally Hill v. Davis, 4 Mass. 139. 42 Windsor v. Cell, 61 Ga. 675. 43 Hodson r. Van Fossen, 26 Mich. 69 ; Poole v. Gerrard, 6 Cal. 72 ; and compare Eystor v. Hatheway, 50 111. 524 ; see also Read v. Sang, 21 Wis. 67J ; Guiod v. Guiod, 14 Cal. 506 ; Murphy v. Coffey, 33 Tex. 509. 44 Henry v. Gregory, 29 Mich. 69. 45 Sargent v. Wilson, 5 Cal. 506 ; Moss v. Warner, 10 Cal. 296 ; and see Dye v. Mann, 10 Mich. 295. 46 Railroad v. Knapp, 51 Tex. 599. 47 McKay v. Freeman, G Oreg. 453. 48 Potier v. Barclay, 15 Ala. 451. 49 Lc Fort v. Delafield, 3 Edw. Ch. 34. g 67. Suits between husband and wife. — A wife at com- mon law could as a rule only vindicate her rights in an action when joined with her husband ; a statute, therefore, extending her rights will not be construed as giving her a right of action against her husband unless it results from the express terms of the statute or by necessary implication ; ^ but in equity whenever the interests of the two conflict, the wife may main- tain suit against her husband and e converso, the latter against the former, as if they were sole and unmarried ; '-^ it is only necessai-y for her to sue by next friend ; ^ her failure to do so, if the defect is apparent upon the face of the bill, must be taken advantage of by demurrer or it is waived.* "When a statute au- thorizes a -wife to sue alone "when the action concerns her 159 HTSBAXD AND "VTIFE. g 87 separate property," aud when "the action is between herself and her husband," there being no limitation as to the kind of actions that may be maintained between "herself and her husband," she may recover upon a promissory- note executed by the husband to the wife before marriage, and which is her separate property.^ As to actions of tort (replevin), it has been held that such action would not lie by one against the other during coverture ;« and it seems a wife could not recover even after divorce for an assault committed uiion her by her husband during coverture. ' A married man may sue his wife as executrix of the estate of a deceased person, for a debt due from the decedent, and the institution of the suit by the husband will be considered as an authority to her to be sued.** In an action by the wife for a separation of property and a recovery of her paraphernal rights, the fact of her husband's financial embarrassment must be established or she will be nonsuited." In an action by the wife against the husband for divorce and alimony, a third person who has received property from the husband after the cause of action accrued, and before suit brought, for the purpose of defeating a recovery of alimony, may (statute) be made a defendant and the rights in the p-em- ises adjudicated.^'^ After divorce a wife may sue htr former husband and recover upon a note given to her during covert- ure for money borrowed of and belonging to her.'^ So the husband may recover of his former wife the value of improve- ments placed by him at her request upon her real estate. '-' 1 Smith V. Gorman, 41 :\re. 408 ; generally Hill v. Hill, ."isi Md. ivl : Chestnut v. Chestnut, 72 111. ;i.50 ; Markham r. Miirkham. 4 Mich. :W7 ; Crowther v. Crowther, 55 Me. :i5t ; Hobbs r. Hobhs, 70 Mo. HSi ; com- pare Ak'xanfler r. Alexander, 12 La. An. 533 ; and see Claremont Bank v. Clark, 46 X. H. 13.5. 2 Porter v. Bank of Rutland, 19 Vt. 417 ; Markham r. Markham. 4 Mich. 307; generally Bennett v. Reid, 4 HeLsk. 444; Campbell v. Galbreath, 12 Bush. 461. •3 Porter r. Bank of Rutland, 19 Vt. 417 ; generally Markham r. Markham, 4 Mich. :>:)7 ; but see Kashaw ?■. Kashaw. -i Cal. Sll ; com- pare Wood r. Wood, 2 Paige, 457 ; Sherman v. Burnham, G Barb. 404. 4 Kenley i\ Kenley, 2 How. (Miss.) 752. 5 Wilson V. Wilson, 36 Cal. 451 ; generally Clough r. Russell. 55 X. H. 2-<0 ; May v. May, 9 Xoh. 13 ; Campbell r. Galbreath. 12 Hush, 4"^! : but see Hobbs V. Hobbs, 70 Me. ;«2 ; oom^are Theurer v. Schmidt, 10 La. An. 29-3 ; aud see Havuie r. Miller, 61 Ala. t>i. g 68 ^VHO MAY SUE AND BE SUED. 190 6 Tlobbs V. Hobbs, 70 Me. 383. 7 Abbott V. Abbott, 67 Me. 30.5 ; and see Kallock v. Perrj-, 61 Me. 27:i. S Alexander v. Alexander, 12 La. An. 5S9. 9 Hendricks v. Wood, Z'l La. An. 1052. 10 Damon v. Damon. 23 Wis. 512 ; Gibson v. Gibson, 40 Wis. 456. 11 Webster v. Webster, 58 Me. 140. 12 Blake r. Blake, &l Me. 179. § 63. Suits against husband and wife. —The husband is liable at common law for the debts of the wife contracted be- fore coverture, at any time before her death, but not after- wards,' even though the debt was for the price of property received with hcr;'-^ but her choses in action not reduced to possession during her life, and which come into his hands as administrator of her estate, would be assets, and subject to the payment of her anti-nuptial debts.^ The husband should not be sued aloue for such debts, as the cause of action in the event of his death survives against her, therefore both should be joined in the action.* In such an action the defense of dis- charge by the decree of a court of bankruptcy of the female defendant was held sufficient and available for both husband and wife.^ "When by the provisions of the Code the husband is exempted from liability for the debts of the wife contracted before marriage, she may be sued alone,^ and her separate property will be liable therefor in the same manner as though she were an unmarried woman ; ' so in equity the separate property of a married %Yoman may be charged for a debt con- tracted by her while a minor and sole.'* As a rule, at common law an action could not be maintained against husband and wife jointly upon a contract entered into during coverture. *♦ "When sued upon a bond executed by them jointly, upon mo- tion made before plea, plaintiff was allowed to dismiss as to the wife and proceed against the husband.^" By statute the powers of married women have been greatly enlarged with reference to her separate property, she may contract and sue and be sued in the same manner as though sole;ii but unlimited power to engage in business and to sue or be sued are not to be inferred or upheld except upon the clear 'terms of the statute. i- An 191 HUSBAND A>T) WIFE. g 68 action upon a note executed by husband and wife- for a debt of the husband cannot be enforced against them jointly (the statute not authorizing her to make contracts of this charac- ter) j^-* the action, however, may be dismissed as to her, and proceed against the husband.^' In Iowa for exi)enses of the family the husband and wife are jointly and severally liable, and a separate judgment may be rendered against her in a joint action against the husband and wife, even though the former has been discharged in bankruptcy ; ^= so in that State the wife may be sued for the price of articles furnished the husband for the use of the family, even though the goods were sold upon the credit of the husband and his note taken as evidence of the debt.i^ In an action for plantation supplies,^^ purchased for and used upon the plantation of the vdie, her estate is primarily liable ; in such action the husband should be joined with the wife for the sake of conformity, but no judgment will be ren- dered against him.'^ As a rule the husband is liable for neces- saries furnished his family, ^^ and the fact that his wife is a dangerous woman and has offered him violence does not relievo him of the liability where she offers to live with him and demands support.^" So for medical services rendered the fam- ily the husband as a rule is liable, ^^ particularly when the credit was given to him in the first instance, and there was no special engagement with the wife to bind her separate estate ; ^ but the wife may by express promise bind her estate for such services.-^ So also the husband is primarily liable for the funeral expenses of the wife.-* A married woman who is living with her husband is not liable for her debts contracted without the concui'rence of her trustee, and without si^ecifically charg- ing them upon her separate property ; ^^ nor will her express promise after the death of her husband render her liable therefor. '■''' The wife cannot be sued alone ia an action at law after the death of her husband for the price of necessaries fur- nished the family during coverture.-' When the husband carries on business in the name of the wife and ostensibly as her agent, but in fact for his own benefit, one who sells him goods and gives him credit therefor cannot recover the price g eS "WHO MAY SUE AND BE SUED. 192 from the -n-ife as principal. '^'^ In an action for worli per- formed upon the separate real estate of the wife, it appearing that tlie labor Avas rendered under her authority or by her consent, and was beneficial to her estate, the plaintiff properly recovered judgment against both husband and wife.'-^^ An action may be maintained upon a contract made by a wife binding her paraphernal property to secure the release of her husband from jail."" A married woman who carries on a sep- arate business in her own name cannot x'lcad the non-joinder of her husband, who is a dormant partner, as a defense to an action by one who dealt with her in ignorance of the partner- ship.^i The husband is not liable for the debts of the wife incurred in a separate business allowed by statute to be carried on by her with lier own separate property and the profits of which acci'ue to her separate estate ; '^'^ but to an action founded upon a contract made with a married woman living separate and apart from her husband, who resided within the State, although she was accustomed to do business as afeyne sole, the plea of coverture is a perfect defense.^^ Where necessaries are furnished to a wife who has been abandoned by her husband without cause, an action may be maintained to recover their price from the husband ;^* so if money be furnished to a wife, deserted by her husband, for the purchase of necessaries, and it be so applied, a bill in equity may be maintained to recover the amount from the husband.^^ After the wife has left her hus- band who is able and willing to provide her with proper main- tenance, and during an action brought by the former for divorce, the husband is not liable for necessaries to one who furnished them wit'.i knowledge of the facts, in absence of express promise or request;^** nor can an action at law be maintained against a husband for services rendered by an at- torney who prosecutes or defends a suit for divorce for the wife,^' even though she be successful in the action ; ^'^ but it seems that the wife is liable upon such coutract.^^ 1 Jones V. Walkup, o Sneed, 138; Allen r. McCullough, 2 Heisk. is:i; pcniTally Chiwson r. Hutclilnson, 11 S. C. 325; McMurtrv v. M'ebstcT, -is 111. 12:; ; WaiU ?•. Kirkman, 13 Smedes -D AND WIPE. '', 68 Eldred, 65 Barb. 412; Heller v. Jones, 6 Hun, 631 ; an•. Georg.', 6 Tex. jns ; and see Carl v. Wonder, 5 Watts, 97 ; Lennox v. Eldred, 05 Barb. 412 ; ^sicholson v. Wilborn, 13 Ga. 470: and sco Bacoa v. Bevan, 44 ^liss. 295 ; Xutz V. Reutt?r, 1 Watts, 2.33. 5 Chadwick ;•. Starrett, 27 Me. 141. 6 Madden v. Gilmer, 40 Ala. 633 ; Zacliarv v. Cadenhtad, 40 Ala. 237 ; and see Heller v. Jones, 6 Hun, 631 ; compare Howarth »•. Warni- ser, o3 111. 43 ; Xash v. George, 6 Tex. 238 ; Lennox {-. Eldre*. (>5 Barb. 412. 7 Madden r. Gilmer, 40 Ala. 638 ; Heller v. Jones. 6 Hun, 6:!1 ; see Xash V. George, 6 Tex. 2.3S ; Lennox v. Eldred, Go Barb, 412. 8 Dickson v. Miller, 11 Smedes & M. 602. 9 Davis V. Millett, 31 Me. 430 ; and see Fitllwickle v. Keith, 1 Heisk. 360 : generally Wooster v. Xorthrup, 5 Wis. 2-56 ; Howe v. Wildes, 34 Me. 571 ; Grasser v. Eckart, 1 Binn. 537 ; 3Iaver v. Sovster, 30 Md. 402. 10 Pell V. Pell. 20 Johns. 126; generally Wooster v. Xorthrup. 5 Wis. 257 ; Harrington v. Thompson, 9 Gray, 65. 11 Viser v. Scruggs, 49 ^^liss. 709; compare Mallett r. Parham. 52 Miss. 922; Oatman v. Goodrich, 15 Wis. 589; Owsley c. Case, 1« Wis. 607 ; Todd r. Lee. 15 Wis. 363; Yates v. Lurvey, 65 Me. 222; but see Latshaw ;•. McXees, 50 Mo. :i33 ; Fink v. Hanegan, 51 Mo. 2S1 ; gener- allv Xorthwestern Mut. L. Ins. Co. r. Allis, 23 Minn. 340; Halley »•. Ball, 66 HI. 2.52 ; McKune r. McGarvey, 6 Cal. 498. 12 Wooster c. Xorthrup. 5 Wis. 245 ; generallv Harrinijton r. Thompson, 9 Grav, 65; Viser r. Scruggs, 49 Miss. 709; Sturnif^-l.sz r. Fricklev, 45 Md. .571 ; Dubose v. Hall, 7 La. An. 563; Batchelder ?•. Sargent, 47 X. H. 264 ; Carter v. Wann, 45 Ala. 347. 13 Harrington ?•. Thompson, 9 Gray. 65; generally D» Vries r. Conklin,22 Mich. 253 ; Emerv r. Lord, 26 3rich. 4:f2 ; but see Xorth- western Mut. L. Ins. Co. v. Allis. 23 Minn. 338 ; Agnow t. Merritt. 10 Minn. 311; compare Chaffe r. Oliver, 33 La. An. HXu ; Carpenter v. 3Iitchell, 50 111. 471 ; Carlev ?•. Fox. 38 Mich. .5S!i ; Kitchell v. Mudgt-tt, 37 Mich. &4 . Vankirk r. Skillman, U X. J. L. 110 ; Covington r. Yurlt- son,28Tex. .370. 14 Harrington t" . Thompson, 9 Gray, 6-5. 15 Jones V. Glass, 48 Iowa, 34.5 ; generallv Smedley r. Felt, 43 Iowa, 608 ; but see Bell v. The People. 6 Hun, 302 ; compare Carter r. Wann. 45 Ala. ;}47 ; Co. of Delaware r. McDonald, 46 Iowa, 170. 16 Smedley v. Felt, 41 Iowa, .589 ; Smedley v. Felt, 43 Iowa, r.««. 17 Herman r. Perkins, 52 Miss. 81-3. 18 Cook V. Ligon. ,54 :Miss. .372 ; and see Mallett ?•. Parham. -52 >ris.s. 9-22; generally Dugat v. Markham, 2 La. 37; Batchelder r. Sargent, 47 X. H. 2&4. 19 Spann v. Mercer, 8 Xeb. 3.57 ; Webber r. Spannhake. 2 Redf. 2fiO ; generally Clark v. Cox, 32 Mich. 205; Dunbar r. Meyer, 43 Miss. «i>i4 ; Connerat v. Goldsmith, 6 Ga. 17 ; Creeney v. Xooney, 5 Alb. L. J. 199. 20 Bell V. The People, 6 Hun, 302, Pakties — 17 g 69 WHO MAY SUE AND BE SUED. 194 21 Spaiin V. Mercer, 8 Neb. 358 ; Webber v. Spannhake, 2 Redf. 259 ; but see Co. of Delaware v. McDonald, 46 Iowa, 170; generally Potter t', Virgil, 67 Barb. o7a. 22 Spann r. Mercer, 8 Neb. 358 ; Webber v. Spannhake, 2 Redf. 259. 23 Yates r. Lurvej'. 65 Me. 222 ; and see Dunbar v. Meyer, 43 Miss. 6H4 ; generally Connerat v. Goldsmith, 6 Ga. 17 ; Todd v. Lee, 15 Wis. 369. 24 Sears v. Giddey, 41 Mich. 591. 25 Feltoii ('. Rcid, 7 Jones, 271 ; see Batchelder v. Sarge;it, 47 N. H. 264 ; compare King v. Mittalberger, 50 Mo. 184 ; Colby i-. Samson, 39 Me. 119. 26 Felton r. Reid, 7 Jones. 271 ; compare King r. Mittalberger, 50 Mo. 184. 27 Carter v. Wann, 45 Ala. 343. 28 Foster v. Pcrsch, 6 Daly, 165; Natl. Bank of Metropolis v. Sprague, 20 N. J. Kq. 23. 29 Eckert ?•. Renter, 33 N. J. L. 267; generally Blevins v. Buck, 26 Ala. 297 ; compare Emery v. Lord, 26 Mich. 434. 30 Jaffa V. Myers, 33 La. An. 408. 31 Scott V. Conway, 58 N, Y. 619 ; compare McKune r. McGarvey, 6 Cal. 498. 32 Javcox V. Wing, 66 111. 184 ; and see McKune v. McGarvey, 6 Cal. 498 ; generally Colby v. Samson. 39 Me. 120 ; Oxnard v. Swanton, 39 Me. 127. 33 Fuller v. Bartlett, 41 Me. 245; and see Howe v. Wildes. 34 Me. 570; Robinson v. Reynolds, 1 Aiken, 177; generally McDermott v. French, 15 N. J. Eq. 79 ; compare Colby v. Samson, 39 Me. 120 ; Ox- nard V. Swanton, 3j Me. 127. 34 Biddle v. Frazier, 3 Houst. 262 ; see Walker v. Simpson, 7 Watts & S. 83 ; compare Catlin v. Martin, 69 N. Y. 395 ; Dow v. Eyster, 75 111. 2.56 ; Wing v. Hurlburt, 15 Vt. 613 ; Pearson v. Darrington, 32 Ala. 242 ; Morrison v. Holt, 42 N. H. 479. 35 Kenvon i\ Farris, 47 Conn. 514 ; compare Walker v. Simpson, 7 Watts & S. 83. 36 Catlin r. Martin, 69 N. Y. 395. 37 Dow p. Eyster, 79 111.256; generally Shelton v. Pendleton, 18 Cojin. 421 ; Williams v. Munroe, 18 Mon. B. 516 ; Wing v. Hurlburt, 15 Vt. 615 ; Pearson r. Darrington, 32 Ala. 242 ; Morrison v. Holt, 42 N. H. 479 ; contra, Porter v. Briggs, 33 Iowa, 167. 38 Rayt'. Adden,50N. H. 83. 39 Whipple V. Giles, 55 N. H. 140. I 69. Same continued— Separate defense of wife — Suits relating to her land, etc. — Under the provisions of the Code a married woman cannot be sued, without an authorization from her husband or the court, unless she be engaged in separate trade as a public merchant ; ^ the object of the law is complied with, however, if the husband joins the wife in an answer to the suit,, even though they have not been designated as husband 195 m:sBA>-D and wite. ^ 69 and wife in the petition.^ A non-resident married woman may prosecute an appeal from the judgment rendered against ber, the court may authorize her to do so, and the authority to pros- ecute the appeal includes the power to give a proper Ixtnd.* When husband and wife are sued upon their joint liability, it is the duty of the husband alone to make defense for lK)tli.* So, as a rule in equity, when sued jointly with her husband the wife answers with her husband under special circunistances. she may answer separately,^ and she is presumed so far under the domin- ion of her husband that she is not bound by an answer made jointly with him.*' When a bill seeks to subject the separate property of the wife to the payment of the demand therein set forth, the husband is properly joined with her as a defendant.' When by statute a woman is permitted to sue and be sued in the same manner as though sole, as she is under no disability as to the time or manner of putting in her defense, she can claim no indulgence on the ground of coverture ; if she does not make her defense at the proper time the law will presume that she lias none.^ A petition in an action on a joint note executed by husband and wife should aver that the debt was contracted for the benefit of the separate property of the wife or such other facts as would authorize a judgment against her, otherwise her default will be set aside ; ^ but it seems she may appear and waive errors, and thereby cure the defects in the pleading.'" In statutory proceedings for the sale of the real estate of the wife, she should be made a defendant, and not a co-plaintiff, unless the strict terms of the statute are carried out, her title will not pass. 11 Specific performance will not be decreed against a married woman by a court of equity to compel her to convej her real property upon a covenant executed by hei-self and husband during coverture ; ^'^ but a contract executed by Imsband and wife upon proper consideration, binding themselves to execute a mortgage upon their separate estates, will l>e enforced, and treated as an equitable lien upon such estate." The fact that the wife executes a mortgage with her husband is suffi- cient reason for making her a party defendant with liim in an action to foreclose the same, and the complaint need not show g 69 WHO MAY SUE AND BE SUED. 196 the character of her interest in the premises ;i* she may also be made a party defendant in such proceedings against her hus- band if she claim a homestead interest in the premises ; ^^ or if she claim them as her separate property by virtue of a deed from her husband, ^^ although she was not a party to the mort- gage ; but if she is not served with summons, and the decree docs not foreclose or affect her rights in the premises, she can- not prosecute a writ of error to reverse the decree. ^^ Where a deed of trust is sought to be reformed by suit, if the petition shows that the husband owns the premises, the fact that the wife has an inchoate right of dower therein is not sufficient to demand her joinder as a party.^** When it is sought to set aside conveyances of property from the husband to the wife, or in which she joined with him in conveying to third persons, and which conveyances are alleged to be fraudulent as to cred- itors, the wife is properly made a party. ^^ In ejectment for lands claimed by the wife under a deed which vests the title in her, but creates no separate estato, the marital interest of the husband gives him the right of possession, and he alone should be sucd.'-^" If the wife has been joined and judgment goes against both, and pending appeal the husband dies, the action abates, the possession thus acquired by the wife will not support a judgment against her in the original action ; 21 but if the con- veyance creates in the ^ife a statutory separate estate, she must be sued alone, '^^ In an action of 'forcible entry and detainer against a married woman who is doing business as a sole trader, if her husband is in possession of the demanded prem- ises with her, he maybe joined as a party, no relief being asked against him except restitution of the premises. ^^ 1 Moussler v. CTUStine, "25 La. An. 38. 2 Fiivjiron v. Rideau, 14 La. An. 805; compare Chalon v. Walker, 7 La. An. 477; generally Woodward v. Lurty, 11 La. An. 280; Tillett V. Upton. 12 La. An. 146 ; Brunnin v. Womble, :« La. An. 805; Hall v. Carroll, 10 La. An. 412 ; Stewart v. Killmartln, 27 La. An. 256. 3 Succession of Bailey, 24 La. An. 486 ; Kerchner v. Kempton, 47 Md. ."iHs. 4 Vick V. Pope, 81 N. C. 26 ; Kerchner v. Kempton, 47 Md. 588. 5 Kerchner v. Kempton, 47 Md. 588; Getzler v. Baroni, 18 111. 516 ; D.\;ett r. No. Am. Coal Co. 20 Wend. 572 ; and see generallv Jackman V. Robinson, 64 Mo. 292. 197 HUSBA>-D A>'D WIFE. ^ 70 6 Kerchner v. Kempton. 47 Md. 5S8 ; Warner r, Dovp, Xi Md. i-n • see Boy kin v. Rain, 28 Ala. 340. 7 AValker v. Smith, 28 Ala. 574 ; Dyett v. North Am. Coal Co. 20 Weud. 572 ; and see Mills v. Angela, 1 Colo. 335. 8 Mills V. Angela, 1 Colo. 3*4. 9 Trimble v. Miller, 24 Tex. 214 ; Covingtons v. Burleson. 28 Te.x. 370; and see Laird v. Thomas, 22 Tex. 280; generally stewuri >■. Kill- martin, 27 La. An. 456 ; but see Long v. Dixo:), 55 Ind. -lYi. 10 Laird v. Thomas, 22 Tex. 2S0. 11 Bridgeford v. Beck, 11 Bush, 542. 12 Frarey v. Wheeler, 4 Oreg. 190 ; see also Young r. Pai-.1, 10 X. J. Eq. 404. 13 Hall V. Eccleston, 37 Md. 520 ; compare Swan i-. Wiswail, 13 Pick. 127. 14 Anthonv v. Xve, 30 Cal. 401 ; generallv Swan v. Wiswail, 15 Hck. 127 ; Marks i-.* Marsh, 9 Cal. 96. 15 Marks v. Marsh, 9 Cal. 96 ; generallv Weston r. Weston, 4(j WLs. 134 ; Revalk v. Kreamer, 8 Cal. 71. 16 Kohner v. Ashenauer, 17 Cal. 580 ; and compare Oliver r. Moore, 28 Ohio St. 30o. 17 Pope V. Xorth, 33 III. 441. 13 Hoyt r. Oliver, 59 Mo. 188 ; compare Bailey r. West, 41 III. 291. 13 Randolph r. Daly, 16 X. J. Eq. 315. 20 AVilson v. Garaghty, 70 Mo. 518 ; Hunt r. Thompson, GI Mo. US ; generally White v. Rush, 58 Mo. 106. 21 Wilson r. Garaghty, 70 Mo. 519. 22 Betz r. MulUn, 62 Ala. 368 ; generally Alderson v. Bell, 9 Cal. 321. 23 Howard v. Valentine, 20 Cal. 287 ; generally Smith v. Killeck, 5 Gilm. 29,;. § 70. STiit3 for torts committed by husband cr wife. — As a rule at common law the husband was alone liable for torts committed either by the husband and wife jointly, ^ or by the wife in his presence;^ but for those_Ciiijaniitted l^Micr_iiL^ his absence both were liable. =* J'^is rule appTies only to cases of pure and simple tort, and not where the basis of a fraud charged is the contract of the wife.* An action will not lie against the husband as executor de sou tort for acts of his wife done without his knowledge ; otherwise, if he advise or aids her in the commission of the wrongful acts.* The rule has been modified by statute in many States so that now tlie husband is not hable for those torts committed by the wife during coverture that he neither aided, advised, or counte- nanced.« Still, although no longer liable in damages, he may properly be joined as a defendant with his wife in a suit there- g 70 "WHO MAT SUE AND BE SUED. 198 for; ' and if suit was pending against both at the time of the passage of the statute a joint judgment may be entered against ihem.*' So for the torts of the wife committed before marriage a joint action lies against husband and wife.^ In order, how- ever, to create a liability against the husband there must be a valid marriage. 1" As a rule the wife is not liable for the torts or frauds of the husband,ii unless they are her torts also.^^ 1 Brazil r. Moran, 8 Minn. 240; Daily r. Houston, 58 Mo. 362; compare Whitniore r. iJelano, G X. H. 545 ; Koadcap v. 8ipe, 6 Gratt. 216 ; Miller r. .Sweitzer, 22 Micli. 3'Jl ; iShaw v. HuUihan, 46 Vt. 389. 2 Brazil r. Moran, 8 Minn. 240 ; generally Curd v. Dodds, 6 Bush, fiS5 ; compare A\'agener r. Bill, 19 Barb. 321 ; Keen v. Hartman, 4S Pa. St. 487 ; Martin v. Bobson, 65 111. 130 ; and see Carleton v. Haywood. ■l\) N. H. 318. 3 Estill V. Fort, 2 Dana, 238 ; Brazil v. Moran, S Minn. 240 ; and see McElfresh v. Kirkendall, 36 Iowa, 227 ; Luse i\ Oaks, 36 Iowa, 562 ; Curd V. Dodds, 6 Bush, 685; Fowler v. Chichester, 26 Ohio St. 13; compare Keen v. Hartman, 48 Pa. St. 497 ; generally Burt v. McBain, 2!> Mich. 2tHJ ; Whitmore v. Delano, 6 N. H. 545 ; Brown v. Kemper, 27 Md. 670 ; Carlton v. Haywood, 49 X. H. .314 ; Dailey v. Houston, 58 Mo. 362 ; generally Munter v. Bande, 1 Mo. App. 483. 4 Keen ;■. Hartman, 48 Pa. St. 499 ; generallv Carleton t\ Hav- wood, 49 N. H. 314 ; Winslow v. Copeland, Busb. 16 ; Estill ?-. Fort,' 2 Dana, 2:w ; Woodward c. Barnes, 46 Vt. 336 ; compare Curd v. Dodds, 6 Bush, t>s.5. 5 Hinds ?\ .Tones, 48 Me. 348 ; generally Shaw v. Hallahan, 46 Vt. 389 ; AVitcher v. Wilson, 47 Miss. 665. 6 Martin v. Eobson, 65 111. 1-30 ; and see Burt v. McBain, 29 Mich. 262 ; liicci r. Mueller, 41 Mich. 214 ; Hagebush v. Kagland, 78 111. 41 ; Hill V. Duncan, 110 Mass. 239; Austin v. Cox, 118 Mass. 60; McCarthy r. De Best, 120 Mass. 69. 7 Burt V. McBain, 29 Mich. 262 ; see Hagebush v. Bagland, 78 111. 42 ; generally Austin r. Cox, 118 Mass. 60 ; but see McCarty v. De Be.st, 120 Mass. 69. 8 Hill V. Duncan, 110 Mass. 239. 9 Hawk r. Harman, 5 Binn. 44; Brown v. Kemper, 27 Md. 672 ; Overholt v. Ellswell, 1 Ashm. 200 ; Jillson v. Wilbur, 41 X. H. 110. 10 Overholt v. Ellswell, 1 Ashm. 200. 11 Moore v. Foote, :i4 Mich. 450 ; Witcher v. Wilson, 47 Miss. 665. 12 Shaw V. Hallihan, 46 Vt. 393. 199 EXECUTOKS AND ADinKISTEATOBS. 2 71 CHAPTER X. EXECUIOES AXD ADMIXISTRATOBS. 2 71. Generally, suits hy an administrator or executor. § T2. Generally for rlebts or other property due the estate. 2 73. Suits relating to the lands of the decedent. ? 74. Generally, suits against an administrator or executor. ? 75. Generally for debts or property due from the estate § 76. Generally costs, suits relating to real property of tin- istaie. ? 77. Personal claims and liabilities of the administrator. ? 73. Suits by or against heirs, devisees, legatees, etc. g 71. Gsnerally, suits by an administrator or executor. — An executor may commence an action in Lis representative capacity before probate of the will when profert of letters testamentary is not required. ^ When a will is of doubtful meaning he has a right to apply to a court of equity to have it construed and its trusts declared.-^ The nominated executor and propounder of a will is the proper party on behalf of the will and those who claim under it, to conduct the litigation of a caveat from the beginning to the end.^ In the prosecution or defense of claims the executor or administrator is deemed a full representative of the creditors of the estate respectively committed to their care.* In an action by an administrator, if the defendant pleads in bar or the general issue, lie tliercby admits the right of plaintiff to sue;^ but this rule does not apply when an action is revived in the name of an adminis- trator after plea filed ; in such case ho must establish his right to sue in the representative capacity.'' The appointment of an administrator will not be rendered void by the subsequent dis- covery of a will, nor does his authority to prosecute an existing suit cease until a successor has been duly installed in his stead.'' When there are several executors named in a will only those who qualify and take the necessary oaths are required to join in an action for a debt due the estate.** This is also tlio rule in equity.'* When one of several executors or administiti- g 71 WHO 3I.VY SUE AND BE SUED. 200 tors bring an action of debt, assumpsit, or for tort, the error should bo taken advantage of by plea in abatement ; i" but if the joint administrator be a non-resident of the State he is properly omitted. ^^ In equity when one of several joint exec- utors or administrators refuse to join as co-complainant, the pi-oper practice is to make him a defendant, the fact of his refusal to join as plaintiff being stated in the bill.^^ The administration of an estate is an entire thing; when granted to several and one dies the entii-e trust vests in the survivors. ^^ It is the general rule of the common law that no action can be brought either by or against an executor or administrator in his official capacity in any other country than that in which he receives his authority." This rule has been changed by statute in many States so that now in those States foreign executors or administrators may both sue and be sued therein. ^^ Under the act of 1850 (Georgia) to enable a foreign administrator to main- tain an action the intestate must have died in another State.^'' The rule that a foreign administrator cannot sue, etc., does not apply when the action is brought upon a judgment previously obtained by him in his character as administrator in such for- eign state. ^' The general rule in regard to the revival of actions is that when the plaintiff dies pending the suit the action will abate, unless his representative applies to cai'ry it on within two terms after his death. i» The revival of the suit in the name of the representative is not the commencement of a new suit, and if the executor files an amended petition merely for the purpose of making himself a party, the defendant, although entitled to notice, cannot claim the legal delays allowed for answering the original petition. i** In a suit in equity one of several defendants who voluntarily appeared and suggested the death of plaintiff was properly allowed to have the action revived and continued in his name as administra- tor. 2" If plaintiff die after judgment is rendered his adminis- trator is the proper person to sue out a writ of error,^^ or take an appeal. -- 1 .Strong V. Perkins, 3 N. 11. 517 ; and see Halleckr. MLxer, 16 Cal. 5/1) ; compare Rubber Co. v. Goodvear, 9 Wall. 701 ; generally Oreasons v. Davis, 9 Iowa, 224 ; Hathoru v. Eaton. 70 Me. 220. 201 EXECUTORS AND ADMINISTBATOB3. ^ 71 2 Bullock V. Bullock, 2 Dsv. Eq. 31-1 ; and see Treadwell ?•. forflls, 5 Gray, :i4S ; generally Bradford v. Porbes, 9 Allen, ;«i7 : I'ufiain r Collamore, 10) Mass. 511 ; Parker v. Parker, H9 Mass, 4T.'S : lln-nt r' Washington, 13 Gratt. 527. 3 Lucas V. Lucas, 39 Ga. 20G. 4 Kennorly v. Shepley, 15 Mo. 648. 5 Clark ?-. Rishon, 31 Me. 503 ; generally Vickerv r. Bier. 16 Mich. 53; Hazelhurst v. Morrison, 4S Ga. 397 ; Breckenridge v. Ostroni, 79 111. 73 ; Beam v. Jack, 44 Iowa, 325 ; Jordan v. Pollock, 14 (i.i. lo.">. G Vickery v. Bier, 16 Micb. 54 ; generally Ream r. Jack, 44 Iowa. 7 Dwightv. Simon, 4 La. An. 493 ; see also McCauley v. Uarrov, 49 Cal. 505. j . , 8 Alston V. Alston, 3 Ired. 443 ; Burrow v. Sellers, 1 Ilavw. iTenn • 502 ; but see Hiil v. Smalley, 25 X. J. L. 377 ; Heron r.'Hoffner. 3 Rawle, 393. 9 Rinehart v. Rinehart, 15 X. J. Eq. 45 ; generallv Rubber Co. r. Goodyear, 9 Wall. 791. 10 Macon & W. Ry. Co. v. Da\'is, 27 Ga. 117. 11 Lee V. Cause, 2 Ired. 446; and see Wheeler v. Bolton, ."j4 Cal. 303. 12 Tooker v. Oakley, 10 Paige, 28D, 13 Lewis V. Brooks, G Yerg. 180 ; see Clark v. Tlornthal, 47 Miss. 467. 14 S. W. Ry. V. Paulk, 24 Ga. 370 ; generally Brookshire v. Dubose, 2 Jones Eq. 279; Dougherty v. Walker, 15 Ga. 444; Kirkpatrick v. Taylor, 10 Rich. 393 ; Vickery v. Bier, 16 Mich. 53 ; Rucks r. Taylor, 49 Miss. 560 ; S3e also Palmer v. Ins. Co. fs4 X. Y. 67 ; Carniichael t*. Ray, 5 Ired. Eq. 367 : compare Watson r. Pack. 3 \V. Va. 155 ; Purple r. Whithed, 49 Vt. 18S ; but see Lucas r. Bvrne. 35 Md. 4!tl : Morton r. Hatch, .54 Mo. 40J; Sandford v. McCreedy, 28 Wis. IftS; Carter r. Davis, 30 Ga. G52 ; Averitt v. Pope, 30 Ga. 660 ; Dunlap v. Xewman, 47 Ala. 439 ; Chouteau r. Burlando, 20 Mo. 488. 15 Generally see Morton v. Hatch, 54 3Id. 409; Sandford r. Mc- Creedy, 23 Wis. 105, and authorities supra. 18 S. W. Ry. V. Paulk, 24 Ga 362. 17 Rogers v. Hatch, 8 Xev. 38 ; generally Xichols v. Smith. 7 Hun. .531 ; Rucks r. Tavlor, 4) Miss. 560 ; Page r. Cravens, 3 Head, :»:$ ; and see Hunt v. Lyle, 6 Yerg. 412; Swacy v. Scott, 9 Humph. 327; Greasons v. Davis, 9 Iowa, 225. 13 IMcLaughlin v. Xeill. 3 Ired. 295 ; and see Borden r. Thorpe. 13 Ired. 300; gonerallv Peabodv v. Xorfolk, 98 Mass. 457; Reynolds r. Quallv, IS Kan. 361 ; Douglass v. Morford, 7 Yerg. 81 ; Winters v. McGliee, 3 Sneed, 129. 1") Woodman v. Richardson, 15 La. An. 508 ; generally succession of Liles, 24La. An. 4J0. 20 Smith ?•. Pattison, 45 Miss. 626 ; but see Rhea v. Tucker, .Sfi AI-u 4.5 J; generally Salmon v. Symonds, 30 Cal. 30:i; Hill r. Clay, 26 Tex. 6.5.3. 21 Headon v. Turner, 6 Ala. 67 ; and see Jordan v. Abercromble, 15 Ala. 530. 22 .Slagel v. Murdock, 52 Mo. 521 ; generally Savage v. Walsh, 24 Ala. 293 ; see Taylor v. Sewall, 69 Me. 149. ^73 WHO MAY SrE AND BE SUED. 202 ^72. Generally, for debts or other property due the estate. ■ — As a rule every action to recover any property of the deced- ent, or any debt due the estate, must be maintained by the cxecutar or administrator, ^ and not by the heirs, devisees, legat3es, or creditors. 2 To this rule there are exceptions, as where there is collusion between the debtors and personal representatives, or he is insolvent, or "where there is some other special case not exactly defined " ; ^ when the decedent left no debts, and there has been no administration upon his cstat,-.* When by decree in chancery a chose in action was assigned a distributee who was a feme covert, if an equit- able title only was assigned, suit thereon should be in the name of the administrator, for the use of the husband and wife; but if the legal title was transferred, the suit should be in the name of the husband and wife.^ As long as there are unpaid debts the recovery for an injury to the estate should be by the administrator.*^ An action for damages for the death of a person per se at common law cannot be maintained.^ "When by statute an action accrues for svich in- jury, caused by reason of the wrongful act, neglect, or default of another, the action must be proseciited by the administrator or executor of the decedent;*^ and the action maybe maintained, although the decedent was injured in another State, provided the laws of such State are similar to those in which the action is commenced.'* The executor of a will may maintain trespassor trover for the personal property of the testator, taken after his death, although the executor never had actual possession of such effects ; i" he may also maintain trover for the conversion of the title deeds to decedent's lands committed during his life- time. '^ "When an action is brought upon a contract or bond or note, executed to the decedent in his lifetime, it should be main- tained by the administrator or executor in his representative capacity ;i2 but if made to the ofiicer, as to the administrator, he may elect to treat it as a debt due in his fiduciary capacity ; ^^ or may bring the suit in his individual right. ^* So an action upon a judgment obtained by the administrator may be main- tained in his individual right. ^^ When a note is made to an 203 EXECUTOES AND ADinNISTEATOES. § 72 administrator in Lis representative capacity upon the event of his death, his executor may maintain a suit thereon in his own name.i" "When the property of the estate is levied upon by creditors of the administrator to enforce a personal debt against him, he may maintain a bill alone in his representa- tive capacity to restrain the sale of such goods. ^' Vrhen a note is exectited to two joint payees, upon the death of one, the right of suit thereon vests in tLe survivor, and upon his death in his administrator.^*^ The representative of a joint payee and the survivor cannot join in an action upon such note.^" Upon the death of a co-partner, it is the right of the survivor to settle the affairs of the firm, before he can be made liable to the estate of the decedent to pay a balance due; 2^ but the administrator may maintain suit against him for a settlement of the partner- ship, and for an account. ^^ When one of the members of a firm which was a joint maker of a note died, and the note was filed as a claim against his estate, and paid by his adminis- trator, a suit for contribution is properly brought in the name of the latter, and not in the name of the surviving partner.^^ When an administrator within a year after giving notice of his appointment, believing the estate solvent, pays the debt of his intestate, he may if the estate afterward proves to be insol- vent, recover back the difl'erence between the sum so paid and the amount awarded such creditor upon final settlement of the administration ; ^^ if the administrator has been removed the administrator de honis non may maintain the action."^* So property misappropiiated by the executor and turned over to one not entitled thereto, may be recovered back by the admin- istrator de bonis non.'^^ An. administrator has no claim against the heirs for commissions due him from the estate, although he may have expended all the personal property in payment of debts, 2« he is not under obligation to pay off a judgment against the decedent with his own funds, and if he docs he will not be substituted to the rights of the judgment creditors.^' 1 Doughtrv r. Havne. 1 Car. Law Eep. a^O ; Brown v. I.owis. 9 E. I. 4'j9 : Oerinania Ins. Co. r. Curran, 8 Kan. 16: generally Dixon ?•. Buell, 21 111. 204 ; Worsham v. Field. 18 Ark. 447 ; Alexander r. Espy. 6 Humph. 157; Williams v. Hood, 11 La. An. 113 ; Loring v. Folger, . g 72 "WHO MAY SUE AND BE SUED. 201 Grav, 505; Bulger v. Taj-lor, 60 Ala. 516; Ebbs v. Commonw. 11 Pa. St. 380 ; compare Rogers v. Kennard, 54 Tex. m ; Begien v. Freeman, 75 IiKl. at!); Palmer r. Insurance Co. 84 N. Y. 67; and see Ewnig v. Moses, 50 Ga. 265 ; Allen v. Thomas, 3 Met. (Ky.) 199 ; Mason v. Win- smith, 10 8. C. 315. 2 Worshani v. Field, 18 Ark. 447; generally Anthony r. Reay, 18 Ark. 24 ; Mathis v. Sears. 3 N. J. L. 1043 ; 2 Pen. (N. J.) 1043 ; Whelan V. Edwards, 31 Ark. 723; Alexander v. Espy, 6 Humph. 157; Kam- mer r. Hope, 9 .S. C. 254; Montgomery v. Commonw. 1 IMon. 198; Haddix v. Davison, 3 Mon. 40; Jones v. McCleod, 61 Ga. 604 ; Hutton V. Laws, 55 Iowa, 712; Bate v. Graham, 11 N. Y. 237 ; Davis v. Davis, 56 Ga. 37. 3 Kincaicl v. Rogers, 10 Humph. S3 ; Dugger v. Taylor, 60 Ala. 517 ; generally Rogers v. Kennard, 54 Tex. ;^6 ; Ford v. Hennessy, 70 Mo. 593 ; Bcrbi-.H v. Dupro, 6 La. An. 4r;4 ; McLendon v. Woodward, 25 Ga, 2.55; :Murpliy v. Harrison, 65 N. C. 246; Nance v. Powell, 4 Ired. Eq. 301 ; Stronach v. Stronach, 20 Wis, 136. 4 Begien v. Freeman, 75 Ind. 399 ; and see Archer v. Jones, 26 Miss. 588 ; compare Lonaillier v. Castille, 14 La. An. 777. 5 Pennington v. McWhirte, 8 Humph. 131. G Pleveler v. Pleveler, 54 Tex. 57. 7 Kramer r. S. F. M. St. Ry. Co. 25 Cal. 435; Moran v. Holligns, 125 Mass. 93 ; Leonard v. Columbia S. Nay. Co. 84 N. Y. 51. 8 Kramer v. S. F. M. St. Rv. Co. 25 Cal. 436; Weidner v. Rankin, 26 Ohio St. 524 ; Lvons v. C. & T, Ry. Co. 7 Ohio St. 338 ; Meara v. Holbrook, 20 Ohio St. 127. 9 Leonard v. Columbia S. Nav. Co. 84 N. Y. 51 ; see Perry r. Car- michael, 95 111. 529; compare Woodard v. M. S. & N. Ind. Ry. Co. 10 Ohio St. 122 ; Richardson v. IS". Y. C. Rv. Co. 98 Mass. CO ; Needham v. Grand Trunk Ry. Co. 38 Vt. 299; State v. P. & C. Ry. Co. 45 Md. 44; Selma, Rome & Dalton By. Co.'sr. Lacy, 43 Ga. 462 ; generally Marcy V. Marcy, 32 Conn. 314. 10 Flathorn v. Eaton, 70 Me. 220 ; generally Jones v. McCleod, 61 Ga. 604 ; Laughter v. Butt, 25 Ga. 178 ; Atkins v. Guice, 21 Ark. 165 ; coniparo Cross v. Terlington, 2 Murph. 10 ; and see Morton i^ Preston, 13 Mich. 65 ; Barnum v. Stone, 27 Mich. 332. 11 Towle t'. Lovet, 6 Mass. 395. 12 Mohr V. Sherman, 25 Ark. 9; Shaw v. Wilkins, 8 Humph. 649 ; and see Swancy v. Scott, 9 Humph. 327 ; Kellogg v. Malin, 62 Mo. 430 ; compare Gage r. Johnson, 20 Me. 438; Sanford v. McCreedy, 28 Wis. 106 ; Lucas v. Byrne, 35 ild. 49 ; see also Webb v. Fish, 4 N. J. L. 374 ; Luques V. Thompson, 26 Me. 527; Love v. Johnston, 72 K. C. 420; Alexander v. Wriston, 81 N. C. 193. 13 Hemphill v. Hamilton, 11 Ark. 425; Rector v. Langham, 1 Mo. 563; ClaiI)orn i\ Yeoman, 15 Tex. 40 ; compare Luques v. Thompson, 26 :Mo. 527 ; Carlisle v. Burlov, 3 Me. 254 ; Lawrence v. Vilas, 20 Wis. 405 ; Knox v. Bigelow, 15 Wis. 420. 14 Cobb V. Wood, 8 Cush. 230 ; Lassiter v. Obin, 11 Ark. 450 ; gener- f^lly Claiborn r. Yoeman, 15 Tex. 46 ; Hall r. Pearman, 20 Tex. 170; r.iirton r. Slaughter, 26 Gratt. 723; Laycock r. Oleson. 60 111. 31; Mc- G"h("i V. Slutor, 50 Ala. 436 ; Leland v. Manning, 4 Hun, 9 ; Dunlap v. JS'ewmaii , 47 Ala. 439. 15 Page V. Cravens, 3 Head, 383 ; Hunt i'. Lisle, 6 Yerg. 417. 16 Block ?'. Dorman, 51 Mo. 32 ; see McCov v. Gilmore, 7 Ohio, 270 ; Cook V. Holmes, 29 Mo. 63 ; but see Eure v. Eure, 3 Dev. 207 ; Alston v. 205 EXECrT0R3 XSD ADMINISTBATOES. ^ 78 Ja?l^son,4 Ired. 51; Thompson v. Badham, 70 X. C. 142: .Stanley t- fe:..:iley,42Conn. 540. ■' ' 17 Labitut V. Prewett, 1 Woods, 145. IS Walker v. Galbreath, 3 Head, .Slfij and see Bostwi?'.c r. Williams, 40 111. 114 : Sleeper v. Union Ins^ Co. 65 Mo. 3^3 ; Smiih"f. Franklin i en, 27 N. H. 2J2 ; Crocker i-. Beal, 3Iass. 4S1 ; generally Adams v. Hackett 1 Low. 416 ; Teller v. Wetherell, 9 Mich.' 464. 19 Bostwick V. Williaras, 40 III. 114 ; generally Ballance r. .Samuel, 3 Scam. .iSl ; Smith v. Franklin, 1 Mass. 481 ; Jacksoa v. The People 6 Mich. 15.5. 20 Ferguson v. Wright, 61 Pa. St. 259 ; and see Merritt r. Dickey. 38 Zyiich. 41. 21 Howard r. Patrick, 3S Mich. 797; Roberts v. Kelsey, 33 Mich. 603 ; and see Ferguson v. Wright, 61 Pa. St. 201. 22 Hosmer v. Burke, 26 Iowa, 355. 23 Heard v. Drake, 4 Gray. 516 ; Bliss v. Lee, 17 Pick. 84 ; compare Austin V. Heiishaw, 7 Pick. 46; Colegrove v. Robinson, 11 Mjt. 23J : Bascom v. Butterfield, 1 Met. 5.37. 24 McFarlin v. Ringer, 51 Ga. 367 ; and see Poyeler v. Peveler, 54 Tex. 57. 25 Stevens v. Goodell, 3 Met. .37. 26 Xewsom v. Xewsom, 3 Ired. Eq. 412 ; and see Seaton j-. Alcorn, 51 Miss. 74. 27 Seaton r. Alcorn, 51 Miss. 74; compare Williams v. Moore, 9 Pick. 433 ; Paine v. Drury, 10 Pick. 401. § 73. Suits relating to tlie lands of the decedent. — Au action t ) recover damages for breach of contract to convey lands to the decedent may be maintained by the administrator or executor alone ; ^ but if the lands are claimed, the heirs blioiild be made parties. ^ So r.lso the executor of an insolvent estate may maintain a suit in equity to set aside conveyances of lands made by the decedent in fi-aud of creditors.^ When the int3state conveyed lanels to a creditor to sell, apply the price to the payment of his debt, and to refund the surplus to the grantor ; after his death his aelministrator may maintain a bill tj enforce the trust, and after sale under a decree in such action it is too late for the heir to elect to take the land and pay the debt.* An administrator may maintain an ac.ion to foreclose a mortgage due the estate ; ^ and as a rule may main- tain an action to enforce a vendor's lien for the purchase price of land; 6 so ux5on the death of the mortgagor his administra- tor may file a bill to redeem the mortgaged premises, provided they are necessary for payment of elebts ; ' rents of real estate Parties — 18 § 73 WHO MAY SUE A>'D BE SUED. 206 accruing before the death of the decedent are assets belonging to the administrator, and he maj- maintain suit therefor in his own name ;^ rents accruing after his death belong to the heir or devisee." An executor who makes in his individual capacity a lease of premises belonging to the estate can recover upon such lease in his individual capacity;^" so an administrator of an insolvent estate whose intestate had an undivided interest in certain real property as tenant in common may maintain a bill to enjoin the tenant from improj^erly sub-letting the same, when the value of the property would be impaired, and the rents thereby diminished ; ^^ so for proper cause he may main- tain an action for forcible entry and detainer. ^^ When land has been taken for a public use during the life of the intestate, the right to recover damages therefor survives to the adminis- trator, and he may maintain suit to enforce the same ; ^^ but if the right accrue after the death of the intestate, and before the administrator has obtained license to sell the land, the action must be maintained by the heir.^^ When lands belonging to tenants in common has been sold under an erroneous judgment they may unite in an action for the damages thereby sustained, and if one be dead his administrator may be joined ;'^ so for a trespass committed upon lands of the decedent before his death the administrator may sue ; ^^ if committed after his death the right of action is in the heir or devisee.^^ When the administrator of the mortgagee of lands has obtained judgment and possession under foreclosure proceedings, he may maintain trespass against the heir of the mortgagee for cutting and carn,'ing away wood from the mortgaged premises.^** W"hen by statute the possession of the lands of the decedent is given to the administrator he may maintain ejectment therefor ;i^ in such action he represents the title which the decedent had at the time of his death ; 2" but if the possession descends to the heir the action should be maintained in his name.-^ Where the decedent devised the lands to his executor to sell and pay over the proceeds to the devisee, an action to recover the lands is properly brought by the cxecutor."-^'^ If an executor under mistake of his power sells lands of the decedent, and applies 207 EXEcrroES a>cd AD^rrs-isTKATOBS. 2 73 the proceeds to pajTuent of debts of the estate, and tlie pur- chaser is evicted by the heir, he will in equity be subrogated to the rights of the creditors, and may subject the lan«l to the extent to which it was hable to payment of the debts.-^ 1 Breuggemau v. Jurgenson, 24 ilo. 8J ; Watson v. Blaine, I2.Senr. & R. i:« ; s.'O Perry v. Roberts, 23 Mo. 222 ; Webster v. Tibh -tt.s. 19 Vv'Ls. 44J ; compare Rutherford t'. Green. 2 Irecl. Eq. 12iO. 3 Parker t'. Flagg, i:?7 Mass. 23; Gilson v. Hutchinson, 120 Mass. 32 ; Holland v. Cruf t, 20 Pick. 32.i ; see also GuUbeau v. Thibodean, ao La. An. 10 « ; compare King v. Bovd,4 Oreg. 32'J ; Waddell v. Williams, 37 Tex. ;i52 ; Hunt v. Butterworth, 21 Tex. i:J6. 4 Craig v. Jennings, 31 Ohio St. 86 ; aud see Nerici v. Papln, 11 Mo. 44. 5 Dixon V. Cuyler, 27 Ga. 249 ; generally Collier v. Collins. 9 Iowa, 127 ; Laudis v. Olds, 9 Minn. 91 ; compare Stuart v. Scott, 22 Kan. hit, 6 Knight v. Blantoii, 51 Ala. 'iH : generallv Crosbv w Otis, ;« Me. 259 ; Chapman v. Callahan, 65 3to. 310 ; Sweet v. Jeffries, 48 Mo. 2*0. 7 Merriam v. Barton, 14 Vt. 513 ; Sheldon v. Bradley, 37 Conn. 338. 8 Crawford v. Ginn, :i5 Iowa, 5J0; and see Doe v. Clark. 42 Iowa, 123 ; Parkman v. Aicardi, :J4 Ala. 30S ; compare Kimball r. Sumner, W Me. 307 ; Brewer v. Conover, IS X. J. L. 215. 9 Mills I'. Merrymau. 49 Me. 65; Kimball v. Sumner, G2 Me. 307; Stinson v. Stinsou. liS Me. 593; and see Lucy r. Lucy, 5.^ N. H. 10; Gibson v. Farlev, 16 Mass. 231 ; Foltz v. Prouse, 17 111. 49:1 ; Smith r. Bland, 7 Mon. B. 22. 10 Kingsland v. Rvckman. 5 Daly, 14 ; and see McDowell, »•. Hen- drix. 71 Ind. 2S7.' compare Sliawhan v. Long, 26 Iowa, -MX ; Kuey v. Huey, 26 Iowa, 5'28. 11 Parkman v. Aicardi, 34 Ala. 393. 12 Lass V. Eisleben, 50 Mo. 123. 13 Moore v. Boston, 8 Cush. 277. 14 Boynton v. P. & S. Ry. Co. 4 Cush. 463. 15 Reynolds v. Hosmer, 45 Cal. 630. 16 Haight r. Green, 19 Cal. 117; generallv Henderson r. Peck, 3 Humph. 247 ; but see Chalk r. McAlily, 10 Rich. 93; compare I-^ling- ton r, Bennett, 56 Ga. 15J; Foristi'. Androscoggin Co. 52 X. H. 4ii. 17 Aubochon r. Lorv, 23 Mo. 99; see H. &, T. C. Ry. Co. r. Kuapp, 51 Tex. 569 ; geuerally Richardson r. Crooker, 7 Gray, 100. IS Palmer v. Stevens, 11 Cush. 150 ; and compare Kunzie r. WLxom, 39 Mich. 385. 19 Curtis V. Herrick, 14 Cal. 119 ; and see Cunningham »•. Ashley, 45 Cal. 4^5 ; Haight v. Green, 19 Cal. 117 ; Teschemacher r. Thomiv^oii. IH Cal. 20 ; Eoff r. Thompkins, 6(i Mo. 225 ; McClelland r. DirkciiMin. 2 Utah, 101; compare Hamilton v. Homer, 46 Miss. 390: Milhcan v. MiiUcan, 24 Tex. 436 ; Gunter v. Fox, 51 Tex. 387 ; Ledoux r. Burton, 30 La. An. 576. 20 CuniMugham r. Ashley, 4 J Col. 491 ; see Jordiui v. Pollock, 14 Ga. 155. g 74 "WHO MAT SUE A>-D BE SUED. 208 21 Aubuchon v. Lory, 23 Mo. 99. 22 Jennings v. Monks, 3 Met. (Ky.) 105; Smith v. Doe, 3 Marsh. J. J. «>.>5; and compare Churchill v. Corker, 25 Ga, 493; Jonekin v. Holland. 7 Ga. 589. 23 Shrings v. Haven, 3 Jones Eq. 98; Scott v. Du:in. 1 Dev. & B, 427. § 74. Generally, suits against an administrator or ex- ecutcr. — if a suit is brought against a person who is au administrator, it may be assumed to be against him in his official capacity Avhcn the suit is one to which he may plead as administrator; the title set up is good against him only as administrator, the relief asked is against him as administrator, and the decree in which may be against him as administrator.! If au action be brought against an administrator as an indi- vidual, the pleadings may be amended by inserting his repre- sentative character and the necessary averments showing that the debt is properly chargeable upon the estate.^ So an amend- ment changing the description of defendant from X. Y., admin- istrator, to X. Y,, executor, was properly allowed.^ When a person is both executor and a devisee he may be sued in both capacities in the same suit.* "When contracts originate in the lifetime of the decedent the executor is liable in his representa- tive capacity ; but in causes of action wholly occurring after his death the executor is liable individually.^ When the de- fendant dies pending suit, if it survives, the administrator of his estate becomes a necessary jiarty and should be made party defendant.*' If the death occur after verdict judgment may be entered thereon, the executor or aelministrator being substi- tuted ; but action wpon the judgment need not be maintained against such representatives. In order to secure payment from the estate a certified or authenticated copy of the juelgment filed in the probate court is sufficient, without any statute upon the subject.' When the widow has qualified as tutrix, suit may be commenced against h^ r even though she has not qualified as admin isti-atrix; but in order to bind the succession the administratrix must be maele a party when appointed.'' As a rule foreign executors are not recognized in their official capa- city by domestic courts of law, and cannot be sued therein as 209 EXECrXOES and ADMINISTIlATOnS. ^ 74 such officers.^ The question involved is a matt.-r of jiulicial discretion rather than of jurisdiction, i" and in certain casta suits, as to compel an account of a trust fund," to enforc»- pay- ment of iutesest on a Isgacy,^''^ have been maintained. When one of the makers of a joint contract dies the rij,'lit of action thereon survives against the living maker; the representative of the decedent can never be joined with the survivor in an action at law,!^ i,^^^ jj^^iy l^g sued alone in the same manner as though the contract were joint and several.'* To a bill in chancery all who may be liable upon the obligation, as well the representatives of a deceased obligor as the survivor, must be made parties defendant. ^^ "Where a bill charges that one of two joint obligors is insolvent, the court, especially in favor of a surety, will sustain the bill against the representatives of the other.i'' In actions upon joint and several contracts (unless the rule is changed by statute) the administrator of a decea.s€d obligor cannot be joined with the survivor. '' Tie execute trs of a deceased partner cannot be joined with the surviving partner in an action at law to collect a debt against the partnership ; '" but an action may be maintained against the executors of the deceased partner, i'' even though the estate be insolvent,-'*' or another action be pending against the survivor to recover the same debt.^^ To a bill in equity against the executor of the deceased partner to recover the firm debt the surviving partner (insolvent) was properly joined. ■^^ if jjoth partners l>e deatl tlie executors of their separate estates cannot be joined m an action to recover a firm debt. 2=* Tlie surviving partner cannot recover from the estate of his deceased co-partner on account of firm property held by the latter without showing tiiat the business of the partnership is closed, its debts paid, and accounts settled. ^^ 1 Irving V. Melton, 27 Ga. 3-31 ; generally Rhea v. Turyear, 'Ji; .\ rk. 2 Poole r. Hines, 52 Ga. 502; generally Tyler r. Langworthy, S7 Iowa, 000 ; Walclsmith v. WaUlsmith. 2 Ohio, 160. 3 Windsor v. Bell. 61 Ga. 676. 4 Rvan i. Jones, 15 111. 6 ; generally Deuegre r. Doiiegre, :« La. An. 690: § 74 WHO MAY SUE AND BE SUED 210 5 Knrchner r. McRae, 80 N. C. 223 ; generally" Kessler v. Hall, 64 N. C. 01 ; Hull ?'. Craige, 65 N. C. 52 ; Smith v. Fellows, 58 Ala. 471 ; Mathews V. Muthews. o6 Ala. 2lM. 6 Parshall v. INIoodv, 2-1 Iowa, 318 ; generally Tupper v. Oassell, 45 Miss. ;i.>4 ; Berkpy v. .liuld, 27 JVIuiii. 476 ; Piatt )-. .St. Clair. 6 Ohio, 555; Hayden r. Vreeland, ;J7 X. V. 373; Norton v. Jamison, 23 La. An. 10"2. 7 Bcrkev v. Judd. 27 Minn. 476; compare Norton v. Jamison, 23 La. An. 102. 8 Scuddy v. Shaffer, 14 La. An. 569 : generally Mathews v. Math- ews, 56 Ala. 2i4. 9 Field v. Gibson, 56 How. Pr. 233 ; generally Leonard v. Putnam, 51 N. H. 24!) ; Magraw v. Irwin, 87 Pa. St. 141 ; fewearingen t\ Pendle- ton, 4 Serg. & li. 3J6 ; Evans v. Tatem, 10 Despard v. Churchill, 53 N. Y. 198 ; and see Brown ?'. Knapp, 17 Hun, 161. 11 McNamara v. Dwyer, 7 Paige, 240; generally Swearingen ?'. Pendleton, 4 Serg. . Johnson, 34 Ga. 511. 12 Brown v. Knapp, 17 Hun, 161 ; and see Despard v. Churchill, 53 N. Y. li)8 ; Olney v. Angell, 5 R. I. 201. 13 Maples v. Geller, 1 Nev. 237 ; generallj"^ Cochrane v. Cushing, 124 Mass. 21i) ; New Haven . Cush- ing, 124 Mass. 219; Cowley v. Patch, 120 Mass. 138; Thompson v. Johnson, 40 N. J. I^. 221 ; and see Bolinger v. Fowler, 14 Ark. 27. 15 White V. Johnson, 4 Dana, 506 ; but see Wiley ?'. Pinson, 23 Tex. 488 ; Martin v. Harrison, 2 Tex. 456 ; compare Freeman v. Scofield, 16 N. J. Kq. 2S. 16 H.-izcn ?'. Durling, 2 N. J. Eq. 135 ; generallv Randall v. Sacket, 56 How. Pr. 226. 17 Humphreys ?'. Crane, 5 Cal. 175 ; May v. Hanson, 6 Cal. G43 ; generally I'eople v. Jenkins, 17 Cal. 503; Cummiiigs v. Poople, bO 111. 133; Harrell v. Park, 32 Ga. 555; compare McArdle ?'. Bullock, 45 Ga. 91 ; and see Trimmier v. Thompson, 10 S. C. 178 ; Ash v. Guieril, 12 The Reporter, 281 (97 Pa. St. 4!;5). 18 Ric'hter v. Poppenhansen, 42 N. Y. 376 ; Hedden v. Van Ness, 2 N, J. L. 84 ; but see Garrard v. Dawson, 49 Ga. 41^. 10 Brewster v. Sterrett, 32 Pa. St. 118; generally Saving T) ADMINISTRATOBS. 7. 75 23 McXallyr-. KerswelI,37Me.552; but see Kottwitz ^^ Ak-xaiider, 24 Stanberry v. Cattel, 00 Iowa, 617; see W'ilby v. Phiniipv 15 Mass. 120; but compare Calvert f. Murlow, 18 .via. 70 : Cravi- r>ir-i',,.r 9CaL6:iG. • ' '^• \ 75. Ganerally fcr d3bt3 or property due from tae eetate. — As a contract to pjrform certain duties growing out of txiat^ ing relations ceases to be binding when the relation ceascH, so an action for breach thereof after the death of one of tlic con- tracting parties cannot be maintained against his administrator.* When an administrator pendente lite has been ai)pointtd, an action for services rendered to the decedent in his lifutimo may be maintained against him.^ When a joint surety pays the money dne noon a joint obligation, he may maintain an action against the representatives of a deceased joint surety, to recover an aliquot portion of the money so paid ; '^ but a legatee cannot pay the debts of the estate and then maintain a bill against the execiitor for repayment.^ In suits against an administrator, a demand, tue consideration of which springs from or is coniuctcd with the estate of an intestate, though arising after his death, may be joiueel in the same suit with a demand the consideration and promise of which was complete in the lifetime of the iute»- tate.^ The general right to sue an executor or adaiinistrator upon a claim or demand against the estate of the dcexdent haa been taken away by statute in many States, so that now no action can be maintaineel thereon until such claims have lx?cn presented to such representative of the estate for settlcnunt ;* in case of a mortgage, if it be not presented for allowance, the holder will be confineel to the property covered by it. and can- not resort to the general assets of the estate in case of deficiency in the payment of his debt upon foreclosure sale of the prem- ises.^ An action will not lie against the executor of the assignex) of a mortgage, to recover the penalty given by statute for re- fusing or neglecting to discharge it after payment." If the defendant would tako advantage of the fact that the nuit was prematurely brought (within one year from the gi-anting of administration), he sliould plead it in abatement and not in bar;» the time during which the administrator may be sued g 75 WHO MAY SUE AND BE SUED. 212 begins from time legal notice of his appointment is given, and tlie time during which the official action is suspended, pending appeal from the order of appointment is not included ; ^^ after the administration has been closed and the heirs put in posses- f-ion, an action cannot be enforced by a creditor against the estate.'! "When a claim is sought to be established against the estate of a deceased person, the personal representative is the only necessary party defendant ; ^'^ for contracts originating during the nfetime of the decedent, the executor is liable in his representative capacity, but for those wholly occurring after his death, the executor or administrator is liable person- ally ; '^ so an executor empowered by the will of decedent to carry on his business after his decease is personally liable for the debts thus contracted.'* When money is collected by an administrator on a judgment founded upon a suit in the name of tlie decidcnt, he is not individually liable therefor to a person who owned an interest therein, unless he had notice thereof, when he appropriated it to use of the estate, or unless he acted in bad faith in leaving it over.'^ An executor de son tort is one who assumes the office by intrusion, or interferes with the assets without authority, to recover against such exe- cutor he should be declared against as executor.'*' An action should not in the first instance be prosecuted against the heirs of the decedent;'' the estate must be administered upon; but upon petition showing that the executor was defending such suit in bad faith, they may be alloweel to defend the action.'^ It is the duty of the administrator, when sued by a creditor, so to plead as to protect the rights of all the creditors of the estate."* When the administrator is wasting the assets of the estate any heir or creditor may apply to a court of chancery to liave them placed in the hands of a receiver, and the estate wound up under its elirection.^^ In a suit upon the adminis- trator's bond, any person interested in the estate may join for a devastavit of the administrator.'-^' In an action upon such bond for not accounting within the proper time, it is not a complete defense that an account was made after suit brought. 22 On tlie death, pending suit, of one of two joint administrators sued for 213 EXECrTOKS AND ADMOaSTBATOBS. \ 75 a devastavit, upon suggestion of the death made of record, the action may proceed against the survivor.^ The suretieH u{ an administrator cannot be joined as substantial parties to a bill against the representatives of such administrator, which in grounded upon an alleged devastavit of the former atlniinis- trator."-^* Creditors have the right to assign the non-payin»nt of their debts as a breach of the administration bond, and to put it in suit;-^ nor need an action have been maintained against the administrator alone in the fii"st instance ;-*'' sevtral breaches may be joined in the same action,'^' even though they relate to several persons, provided they are covered by the bond.^** 1 Bland v. Umstead, 23 Pa. St. 316. 2 Benson v. Wolf, 43 N. J. L. 79 ; compare generally Ross r. Ilnr- den, 12 Jones & S. 28 ; Mathews v. Mathews, 56 Ala. 2*1. 3 8tothofr r. Dunham, 19 X. J. L. 1S2 ; and see Collins r. Weiser, 12 Serg. & B. 98 ; Packard v. Nye, 2 Met. 50. 4 Alston ?'. Batchelor,6 Ired. Eq. 368 ; generally Davidson r. Potts, 7 Ired. Eq. 274. 5 Howard v. Powers, 6 Ohio, 96 ; and see Malin v. Bull. 13 Sen?. * R. 441 ; generally Hovev v. Newton, 11 Pick. 422 : Greenlenf ?•. AIUmi. 127 M:ihs. 253; Hapgood v. Houghton, 10 Pick. 154; Mathews r, Mathews, .56 Ala. 294. 6 Generally Keenan v. Saxton. 13 Ohio, 42 ; Heutsrh v. Portor. 10 Cal. 55J ; Ellis 'c Polhemus, 27 Cal. ;i53 ; In re McCau.sIand. .52 ( al. :*\> ; compare University of Vt. r. Baxter, 43 Nt. 6-50: and see Huniimrlo V. Kramer. 12 Ohio St. 253; Co. of Linn i'. Day, 16 Iowa, 162 : s.-i- also Sampson v. Sampson, 63 Me. 3:C 7 Null v. Jones, 5 Neb. 503 ; generally Fallon r, Butler. 21 (.al. •>. 8 Page V. Johnson, 23 Wis. 296, 9 Company v. Barnes, 4S N. H. 28. 10 McPhetres v. Halley, 32 Me. 75. 11 Durnford v. Urquhart, 24 La. An. 114; generally Lanccy v. White, 6S Me. 30. 12 Jones v. Reid, 12 W. Va. 363 ; and see Melick v. Mellck. 17 N. J. Eq. 157 ; Dias v. Bouchand, 10 Paige, 456 ; but compare Long v. Majos- tre, 1 Johns. Ch. 306 ; generally McKenzie r. Havard, 12 Mart. H>{. 13 Kerchner v. McRea, 80 N. C. 221 ; generally Kessler f. H:ill. •■i N. C. 61 ; Hall v. Craige. 65 N. C. 52 ; Solliday r. Bissey. 12 Pa. - Grier v. Huston, 8 Serg. & R. 405; Tryon v. Oxley.3G. (ir-M Beattv V. Gingles, 8 Jones, 303; compare Wile v. W right,*- !«'" Voorl'iies v. Embank. 6 Iowa. 275; Hapgood r. Houghton, i" I'l' k. 155; Adams v. Butts, 16 Pick. ;«4 ; and see Beatty v. lete, 9 Uu Au. 130 ; Davis v. French, 20 Me. 22. 14 Liable v. Ferry, 32 N. J. Eq. 792. 15 Call V. Houdlette, 70 Me. 312 ; generally Cronan r. Cottlng. 93 Mass. 3;J6. g 76 WHO MAY SUE AXD BE SUED. 214 16 Lee 1'. Chase, 58 Me. 435 ; generally Meigan v. M'Donough, 10 Watts, "iSS; Cninkleton v. Wilson, 1 Browne (Pa.) 364; Stockton v. Wilson, 3 Pt'un. & W. 129 ; Davis v. Davis, 56 Ga. ;J8. 17 Reynolds v. May, 4 G. Greene, 283. 18 Lusk V. Anderson, 1 Met. (Ky.)42S ; generally Winslovv v. Minn. r in absence of any showing of authority by the administrator to take possession of such lands. ^^ 1 State r. Starkweather, 8 Jones & S. 4oS ; compare Tlchenor r. Hayes, 41 X. J. L. 193 ; generally Butner v. Keelhn, 6 Jones, 61. 2 Tichenor v. Hayes, 41 N. J. L. 19o. 3 Helme v. Landers, 3 Hawks, 5G3; generally Mendenhall r. Benbow, 84 X. C. 648. 4 Prescott v. Ward, 10 Allen, 203. 5 Cooper v. Crane, 9 N. J. L. 173; compare Browne v. Bliclc, 3 Murph. 517 ; Dickenson v. Stoll, 24 N. J. L. ool ; uiul see Shields »-. Lawrence, 72 N. C. 43 ; generally Smiih r. Xicholson, I a. An. 705. 6 McKinlav v. McGregor, 10 Iowa. 112 ; and generally Carson r. McFanden, 10 Iowa, 91. 7 Dayton v. Lynes, 30 Conn. 354. 8 Rhodes v. Gregorv. 2 Havw. ;«1 ; generally Moics r. Spra^uo. 9 R. I. &13 ; Mason v. Ballew, 13 trod. 483 9 Aldrich v. Howard, 8 R. I. i2.j. 10 Cherrv v. Hardin. 4 Heisk. 200; generally Terhnne v. Bray. \i, N. J. L. 54 ; Schott v. Sage, 4 Phila. 87. 11 "W'engert t\ Beashore. 1 Pa. 2;io. 12 Preston ?•. Mhoon, 43 Miss, 623; generally Ridgeway v. V,";iut;h. 51 Ala. 424. 13 Wilson V. Hall, 13 Ired. 483. 14 Jay V. Stein, 43 Ala. 520 ; and see Hoffman v. St, Clair. 43 Mioh. a51. 15 Warren ?•. Tobev, 32 Mich. 45 ; but compare Chapman r. Ilollls- ter, 42 Cal. 433; Meeks v. Kirbv. 47 Cal. 16S ; Cunningh.iri v. .A.-^IiKy. 45 Cal. 143. 9 77. Personal claims and liabilities of Iho administra- tor.— An administrator cannot judicially, in an action at law, g 77 WHO -HAY SrE AXD BE SUED. 216 enforce a claim due himself from the estate: ^ biit may main- tain an action against one who was his co-administrator, and who had been removed before the commencement of the suit, to recover the purchase price of property bought by the latter at a joint sale made by them, the payment of which became due before his removal.'' An executor is not liable for the loss of assets which have come into the hands of his co-executor, and over which he has had no control;^ but he is liable for funds voluntarily placed in the hands of the co-executor and wasted.* In equity the executor who has proved the will may sue one who was appointed co-executor, but who has not proved the will nor renounced the executorship, for funds of the estate which have come into his hands. ^ A. and X, were admin- istrators of P., X. died, administration to his estate was taken out and bond given; A. settled his account and was charged with all the personal estate, but by the report of auditors X. appeared accountable for a part. In suit brought upon such administration bond by A., iipon the event of his death his admiiustrator should be substituted as plaintiff and not the administrator de bonis noii of P.*" An action by an adminis- trator de bonis non against a former administrator will not lie until an account is filed and settled in the proper court.'^ In an action by a receiver appointed to sue for and collect the choses in action belonging to the estate against the executor, upon a note given by him to the decedent, judgment should be rendered against the executor inelividually, and not in his repre- sentative capacity.^ Formerly an administrator de bonis non could not sue the former administrator, or his repi-esentatives, for a devastavit or for delinquencies in office, nor could he main- tain an action on his bond for such cause ; but if any goods of the estate remain in the hands of such administrator in specie, he might sue for them eitiier directly or might sue w^on the bond.** This rule has been changed by statute ; now the administrator di> bonis non may call his 7'emoved predecessor, or his repre- sentative if he be dead, to account, touching the entire admin- istration of the estate ; and such administrator is liable to him as at common law he was liable to the creditors and dis- I 217 EXECTTOES AXD At»>nNISTEATOB3. \ 77 tributets.^*^ The heirs at law and creetween an executor and the representative of a deceased executor.^^ "When a creditor's bill has been filed against the executor, and an interlocutory decree for an account obtained thereon, either a creditor or the executor may by petition obtain an injunction against creditors who attempt to proceed at law against the executor. i' A bill for an account may be maintained against the administrator and heirs in order to prevent circuity of action.'^ Plaintiffs will not be allowed to impeach a single item in the administra- tion of assets, it can only be reached by a gen' ral account ; '^ but for all property of the decedent that has come into the hands of the administrator he may be compelled to account,'' and the action may be prosecuted either by one creditor or one Lgatee on behalf of himself and all others who may come in and assist in the suit.^*^ When a plea of, fully administered, is found in favor of an administrator (defendant), and a judg- ment quando rendered, he is entitled to his costs. '^ When the fe(/le legatee of a will sues the executor for an account and the balance to be thereby ascertained, and the latter admits assets in excess of the debts and charges of administration, but shows that a creditor's bill is then pending against the estate, it is error to direct payment of the legacy until the creditors have been heard in the proceeding.^" A legacy or distributive share cannot be recovered without setting up a legal representative of the deceased on whose estate a claim for the one or tlie other is made,-i nor will the action lie until after demand. -'- An action at law will not lie against the a^lministrator of an executor for a 1- gacy when the latter has wasted or convLTtetl the assets of his testator, the remedy is in equity.-^ Legatins under a will cannot maintain an action in the nature of a bill Parties - 19 g 77 "WnO MAT SUE AND BE SUED. 218 of interpleader ajjainst the administrator with the -will annexed who has obtained license from the proper court to sell the real premises for tlie payment of legacies, and against the husband of the testratrix, who claims a life estate in the land, to deter- mine the rights of the legatees and of the husband.^^ After payment of debts the administrator is trustee for the next of kin alone, and they may proceed against him directly for what is due them,"'^^ or may sue upon his official bond.''^^ When one joint administrator who has received all the assets of the estate files his account and then dies, the next of kin may proceed against his representatives to recover their distributive share, and tliis although there be surviving administrators of the original estate.''^' When a bill is filed by distributees against the administrator of the estate to set aside a transfer which he has fraudulently obtained from them of their interest, and to recover their distributive shares, the sureties on the adminis- trator's bond may be made defendants. "^'^ When by the terms of a will the executor was directed to invest the amount bequeathed for the benefit of the legatee, and he failed to do 80, an action may be maintained upon the undertaking of his surety. 2« 1 Succession of Farmer, .32 La. An. 1040; Perkins v. Ipsann, 11 P.. I. 270; and see Cole v. Wooden, 3 Hur. (N. J.) 15 ; generally Owen V. Walker, 2G Ga. 347; Prentice v. Dehon, 10 Allen, 363; Munroe v. Holmes, 13 Allen, WX 2 Hendricks v. Thornton, 45 Ala. 309. 3 Clarke v. Colton, 2 Dev. Bq. 51 ; generally Ochiltree v. Wright, 1 Dev. & li. Eq. 3i)!) ; Fennimore v. Fennimore, 3 IST. J. Ko. 293 ; Orniiston v. Olcott, 84 N. Y. 346. 4 Fisher v. SklUmau, 18 N. J. Eq. 229 ; see Ormiston r. Olcott, 84 N. y. im. 5 Morse v. Oliver, 14 N. J. Eq. 259. 6 Shelby v. Dailey, 2 Serg. & R. 549. 7 King V. Devoe, 6 Phila. 551 ; compare Beall v. New Mexico, 16 Wall. 5;i5, 8 Kaster v. Pierson, 37 Iowa, 91 ; generally Leland v, Felton, 1 Allen, .>{1 ; Pusey v. Clemson, 9 Serg. & R. 208 ; Gardner v. Miller, 19 Johns. 189 ; Wood v. Tallman, 1 N. J. L. 155. 9 Beall v. New Mexico, 16 Wall. 540 ; generally Dreukee v. Shar- man, 9 Watts, 4,So ; State v. Johnson, 7 Blackf. 529 ; State v. Johnson, 8 Ircd. 397; Brotton v. Bateman, 2 Dev. Eq. 115; but see Tracy v. Card, 2 Ohio St. 431 ; compare Giles v. Brown, 60 Ga. 660; and see Bowers v. Grimes, 45 Ga. 617. 219 EXECUTOBS A^•D ADinMSTBATOBS. ^78 10 Gilas V. Brown, 60 Ga. 661; compare Thornton v. Park, fcl (ia. ooO ; Bowers v. Grimes, 45 G:i. 617 ; unci fcenerullv H«'IhIhv r. Cralif Xt Gratt. 717 ; Farrisv. Berry.SiTex. 704 ; Korrlnr. ltobertHon,4'jMo.r»l. 11 Bowers v. Grimes, 45 Ga. 617. 12 Farris v. Berry, Si Tex. 70;i ; generally Rushin v. Yontnf, 27 Go. 13 Stiver v. Stiver, 8 Ohio, 220. 14 Simmons r. Whittaker, 2 Ired. Eq. i:J0 ; generallv Wurdsworth V. Davis, 6;^ X. C. 252 ; Brown v. Ricketts, ^ Johns. Vh. .\>*i. 15 Smith V. Sheppard. 2 Hayw. 1G3 ; atid see Ileedcr r. Sp».uki', -I S. C. 2;)4 ; but see Gordon v. Small, oi Md. 556 ; generally Tutf r. Greenlee, 2 Hawks, 486. 16 Ward v. Turner. 7 Ired. Eq. 74 ; generally Price r. Hunt, 11 Ired. 42 ; Crombie v. Engle, 19 N. J. L. 8.3. 17 Vreeland v. Vreeland, 16 X. J. Eq. 530 ; and see Fbher v. Skill- man, 18 N. J. Eq. 229. 18 Brown v. Ricketts, 3 Johns. Ch. 565 ; generally see Johnson r. Hc'na£ru!i, 11 S. C. Ill , compare Felly v. Bowyer, 7 Bu.sh, 51.1 ; .Smith V. Williams, 116 Mass. 512. 19 Lewis i<. Johnson, 69 N. C. 393; generally King v. Howard, 4 Dev. 5S1 ; Mendenhall v. Benbow, 84 X. C. &16, 20 Louthall v. Shields, 81 X, C. 28. 21 Shaw V. Shaw, 1 Murph. XH ; Currence v. Daniels, 5 W. Vn. 124 : but see Hargrove v. Thompson, 31 Miss. 215. 22 Miles v. Boyden, 3 Pick. 216 ; and generally see Amos v. f 'larkr. 106 Mass. 574; State v. Wilson, 38 Ind. 3:39 ; compare Bauglmiun r. Kunkle, 8 Watts, 48.3. 23 Coates v. Mackie, 43 Md. 128 ; generally Rushin r. Young, 27 (So. 325 ; Rogers v. Rushin, :i0 Ga. 945. 24 Sprague r. West, 127 Mass. 4T2. 25 Shaver 7-. Shaver, 1 X. J. Eq. 439 ; generally Kamhier r. Hope, 9 S. C. 2.54 ; Walker v. Walker, 47 Ga. :«S. 26 Kaminer r. Hope, 9 S. C. 254 ; United States v. KIur. 1 Mc.Ar. 499 ; Baughman v. Kunkle, 8 Watts, 4-84 ; same connection Beavers r. Brewster, 62 Ga. 575 ; Towner v. Tooley, :te Barb. 5.(9. 27 Baughmau v. Kunkle, 8 Watts, 484 ; compare Deluirt v. D-hart. 3 X. J. Eq. 472. 28 Gerald v. Miller, 21 Ala. 433. 29 United States v. Parker, 2 McAr. 444. ^ 78. Suits by or against heirs, devisees, legatees, etc. — The heirs of a p:rsou dying intestate caunot maintain an action upon a debt due the decedent ; ^ if there are debts duo from the estate,'^ an exception exists when there is colhision. in.>;olvcnoy, unwiUingness to collect the assets on the part of the legal rep- resentative, or some other special facts warrant it ;' so a\^o the sole devisee of the decedent cannot maintain an action for a tort or conversion of the property of the decedent in his life- ^78 yrao may sue xsd be sued. 220 time, the action must be brought by the legal representative.^ Whi n a testator provided by his will that his estate should be administered outside of the probate court, and the executor had turned the property over to the devisee, a creditor was allowed to proceed directly against the devisee, to collect his claim, ^ The widow, or in case of her death the children, may rt-eover for the homicide of the husband, whether the act be committed by a natural or artificial person, or is the result of iatention or criminal negligence.** When a testamentary trust is limitfd to a pui-pose inconsistent with the laws of the State, the heir has a right in equity to contest the execution of the trust.' When the administrator has failed to distribute funds in his hands according to law, and has been removed, there being no debts, persons entitled to distribution may bring suit on the administrator's bond, without the appointment of an administrator de bonis non, and before final settlement.^ Aft.-r payment of debts the administrator is trustee for the next of kin alone, and they may proceed against him directly for what is due them." In a suit in equity brought by one dis- tributee of the estate of an intestate, against the administrator, to set aside a settlement on the ground of fraud, all the dis- tributees must be made parties either as plaintiff or defendant, in order to prevent a multiplicity of suits.'" As a legatee of l)ersonal propc-rty cannot maintain aii action to recover his legacy before the will has been admitted to probate, ^^ so an action cannot be maintained to recover it until it is payable, but in a proper case a suit may be maintained for its preserva- tion before it is payable.'^ When several legatees join in a power of attorney authorizing one to collect their several legacies, each legatee may maintain a separate action to recover the amount so collected. '^ An executor suing for legacies charged upon lands, after the estate has been settled, and having no interest in the legacies, cannot maintain the suit without joining the legatees as complainants with him.i* When legacies in favor of several persons are charged upon the same lands, all may join in a suit to enforce payment against the devisee in trust and purchasers from him with 221 EXECrXOBS A^D ADiri>-ISTUAToK.S. ^ 7g notice. i3 if the complainant in a suit in equity brought to set aside a conveyance of lands dieb leaving a will deviaing tlio land in controversy, and the devisee seeks to revive the original suit, he must make the heirs at law parties defendant. ^^ When it is necessary to resort to lands devised to the wife U)T tho payment of a deceased husband's debts, the wife is remitted to her right of dower." "NVlicn the rights cf creditoia are not interfered with, the widow and heirs may join in an ex parte petition therefor ;is but if the estate be insolvent the creditors should be made parties defendant. i** The rents anJ promts of the real estate of a decedent until it is sold for payment of debts belong to the heir, and if collected by the administrator he may bs sued therefor in an action at law; 2" such action may be brought either by one or all of the heirs, but an intcr- mediats number cannot maintain the action -j'^^^ so if the land be devised to a person he may maintain an action for tl.e \iso and occupation, although he be but a tnistce.22 TVhere 1)reacU of a covenant to pay a mortgage i:pon lands (a half interest in tue premises being retained by the grantor) occurs after tho death of the grantor, the heirs arc the proper parties to main- tain an action to recover for breacb of the covenant i*'^ j^o also heirs arej'ointly chargeable as assigns on a covenant of their ancestor which runs with the laud that descends to them.-* Ileirs must join in an action for the destruction of tlieir title deeds to land. 25 "When the plaintiff iu a suit for specific pcr^ formance of a contract to convey Unds dies pending the action, it should be revived in tho name of his heirs. ^s Purchase money paid on an agreement for sale of land is in cqr.i'y con* sidercd as land, if the contract be vacated after t!:e death of the verdce, ii goes to tlio heir, and he is tho proper p.rson to recover it. 2^ TThcn suit is brought against the estate to en- force tho execution of a contract to convey lands made by a decedent, the administrator may properly be joined with tho heirs as defendant."^ Upon tho death of an intestate bis bntla immediate ly descend to his hcivs and th-^y are t!ic proper per- sons to maintain an action to set aside a tax sr-le thereof, and to restrain tho issuance of a tax deed. '"J A deviseo may bring g 78 "WnO MAY SUE AND BE SUED. 222 ejectment upon a will before probate or after its rejection, at the instance of the executor, and establish the will on tlic trial, or in a proper case may prove it in a court of chancery.^" "When there are no creditors to be affected, no debts outstand- ing against the estate, and no existing equity in favor of the administrator, the heirs have the right of possession and may maintain ejectment in their own name.^^ It is not the duty of the administrator to take possession of the land of the decedent unless the rents and profits are needed in the settlement of the estate, and until he does take possession the heir may maintain ejectment although the estate has not been settled ;*^'-* but a court of equity will not enjoin an administrator from suing to recover a tract of land for the heirs when one of them is insane and the other is a, feme covei't, abandoned by her husband who would not sue, and she by reason of covertiire could not main- tain the action. ^^ The death of the defendant pending a real action (ejectment) abates it, but a new cause of action arises against the heir.^* 1 Leamon v. McCubbin, 82 111, 263 ; generally WrJpoIe v. Eishop, 31 Ind. 1G7. 2 AValpolo V. Bishop, 31 Ind. 157 ; and see Hill v. Boyland, 40 Miss. 620 ; JJiichcll v. Dickson, 53 Ind. 110. 3 Worthy v. Johnson, 8 Ga. 230 ; generallj' Dennis v. Smith, 61 Ga. 26'J ; Aucli;;g v. Davis, -.is Miss. 5i/0 ; Hill v. Hoylui^d, 40 Miss. (S2J ; Hiil V. lioyland, -JO Miss. 620 ; Kavenscri;lt ?•. Pratt, 22 Kan. 21 ; compare KitchiMS V. llarrall, .>» Miss. 475; Gates v. V»'alker, 8 Da. An. 277; Kamucl v. Marshal, 3 Leigh, 573. 4 :McLean Co. Coal Co. v. Long, 91 111. 617. 5 Reynolds v. McFadden, 36 Tex. 120; and see Hoye v. Price, ::0 La. An. 'J3; generally Sampson v. Sampson, 63 Me. 330. 6 Cottingham i\ Weekes, 56 Ga. 201. 7 Do Camp v. Dobbin, 31 N. J. Eq. 688. 8 State r. Thornton, 56 Mo. 325; same connection Moore r. >ror>rt-, 22 La. An. 226 ; Baines v. Barnes, 64 Ahi. ;K0. Shaver i'. Shaver, 1 N. J. Eq. 437; and see Jordan v. Donahue, 12 11. I. 190. 10 Dillon 1). Bates, 30 Mo. 208. 11 Shepherd v. Nabors, 6 Ala. 636; generally Dillon v. Bates, 30 Mo. 302. 12 Howhmd v. Uowland, 11 AV. Va. 270 ; generally Swope v. Cham- bers, 2 Gratt. 32:; ; I>o\vers v. Powers, 23 V/Js. 630. 13 Power V. Hathaway, 43 Barb. 218. 11 Coolr. Iliggins, 25 X. J. Eq. 120; and .see Fish v. Howland, 1 Paige, 2«J. 223 EXECITTOES A>T) ADMINISTRATOBS. \ 78 Ij JacUl ?'. Busiinell, 7 Conn. 20'J : ffeiK^rallv Powers v. I'l.wr^, zs ^Vi^5. GoO ; Shelfloa v. Armsteud, 7 Gratt. 283 ; Hwasey v. 1>1:.1' , 7 Pick. 2a7 ; Parks v. Knowltoii, 14 Pick. 433. 16 Lyons v. Van Riper, 20 X. I. Eq. 3C7. 17 Gully V. Holloway, 63 X. C. SG ; and see .Slnioutr)n r. Houston, 78 X. C. 40J ; compare Zaegel v. Knster, 51 Wis. 38. IS Ex parte Avery, 64 X. C. 114 ; generally Raiusotir r. IlaniHour. 63 X. C. 2ai. 19 Ex parte Moore, 6-t X. C. 90 ; and see Lowery v. Lowerv, 6| X. V. 110 ; Ex parte Avery, 64 X. C. 114. 20 Kimball r. Sumner, 62 Me. 310; and see Palmer v. PiJmer, 13 Gray, 32-S ; Towle v. Swasey, 10(i Ma.ss. 107 ; Almy v. Carpo. 100 Mom. 220 ; generally Tlndai v. Drake, 51 Ala. o7.i ; Baker r. Hi'skell, 4'i X'. H. 427 ; compare Calhoun v. Fletcher, 63 Ala. S'sO ; FJlbcy ». Carrier, 45 Wis. 46^. 21 Kimball v. Sumner, 62 Me. 310 ; see Clark r. Fox, Dana, IfA. 22 Chapin v. Foss, 75 111. 281. 23 AA-ers v. Dixon, 78 X. Y. 324 ; and generally CrIsHeld r. Storr, W Mel. 142. 24 Morse v. Aldrich, 1 Met. 545 ; generally Crisdeld v. Storr, ;« Md. 151 ; Gilchrist v. Filyan, 2 Fla. Uh. 25 Daniels v. Daniels, 7 Mass. l-SO. 26 Lanning v. Cole, 6 X. J. Eq. 105. 27 Young V. Young, 81 X. C. ^J>. 2h Judd V. Mosely, 30 Iowa, 427 ; and compare generally Ilerulerson V. Peck, 3 Humph. 247 ; Tinkler v. Swayhie, 71 Ind. 5«>;{. 29 Marsh v. Board of Supervisors, 3S Wis. 2.52; generally Calhoun ■J'. Fletcher, 63 Ala. 5S0 ; Gossage v. Cro\vn Pt. M. Co. 14 Xev. 158. SO Eedmond r. Collins, 4 Dev. 4-lG. 31 Gossage v. Crown Pt. G. M. Co. 14 Xev. 154 ; generally Sherrid V. Southwick, 43 Mich. 516; Chambers v. Wright, 40 Mo. 482; Mc- Cracken v. McCracken, 67 2>Io. SOI. 32 Filbey v. Carrier, 45 Wis. 471 ; and see Marsh r. Suporvisors. 3S Wis. 252; Calhoun v. Fletcher, 63 Ala. 570; compare In re Wood- worth, 31 Cal. 604 ; Soto v. Krodar, 10 Cal. 'S\ ; Sleeks v. Kirby. 47 ("al. 169 ; Chapman v. Hollister, 42 Cal. 463 ; generally Cunningham v. Ashley, 45 Cal. 491. 33 Flemming v. Collins, 27 Ga. 495. 2A Hoffman v St. Clair 40 Mich. 351. g 73 -svnc' HAY SUE and be sued. 224 CHAPTEr. XI. LANDLORD AND TENANT, JOINT TENANTS, AND TENANTS IN COMZMON. J 73. Landlord and tenant, suits bj-. g £0. Landlord and tenant, suits afe'uinst. J SI. Joi::t tenants, tenants in common, suits rrh;ti"{? Lo personaltj-. I 82. .Same continued, suits relating to real property. g 79. Landlord and tenant, suit3 by. — A person iu pos- sission of laud, whatever mav bo his title, or though he be without title, may maintain an action for an injury to his pos- session against a wrong-doer ^ who is not the legal owner.^ The lessee of laud in possession under a contract to give a part of the cr9p for rent may maintain an action for trespasses upon his l:md^ and crop without joining the landlord ; ■* and as between the landlord and tenant, the latter is entitled to the possession until a division is made, and may maintain the action even against the landlord,^ or a succeeding tenant.'' "When a tenant abandoned the leased promises, making default in payment of rent, and leaving behind an unharvestcd crop, before the expiration of the lien authorized by law, and after the landlord had harvested the crop it v.as seized by an attach- ing creditor of the tenant, held the landlord might claim it by interpleader.^ "^N'hen a tenant for years lias erected buildings upon the leased premises, he may maintain an action against an adjoining owner who negligently removes the soil of his own lot, whereby the building was injured ;^ but whenever the injury to leased premises is of a permanent character, the lessor or reversioner may maintain an action for the injury.'-' "When in a suit by the lessor against the lessee to recover possession of the premises the former dies pending the action, it does not abate ; but his heir may prosecute it to judgment.i*^ One own- ing wild lands which he holds by deed, from one seized by deed, is in such possession as to enable him to maintain a suit in equity to remove a cloud from the title." Such action will 225 LANDLORD AND TENANT. ^ 79 also bo entertained in equity if brought by a remainder man who sues by the tenant of tho particular estate as next friend, wlicn tliG allegations of tlic bill arc of such a nature as to preclude the latter from objecting to the proceeding.'2 A landlord can- not maintain a bill in equity to suppress a nuisance caused to Lii property before he demised it, and continued afterward, without joining his tenant as a co-plaintifif.^^ VHicn A. and D. executed a joint lease to X. of certain premises, and it was specified that one half the rent should be paid to A., and the other half t) B., upon breach of the terms of the lease by X. held that a joint action by A. and B. might be maintained for restitution of the premises, and damages for their detention.'* Vriien a lease is made for three years at an annual rental of llvo hundred djilars, but conditioned to be paid in two instal- ments of seven hundred and fiftj' dollars each, at thctndtf the firi:;t and second yeara the lessor cannot maintain a statu- tory attachment for five hundred dollars and a st pirate action at law for the balance of the instalment, since this would bo splitting an entire indivisible cause of action.'^ An action for the rent reserved in a Lase may be maintained by the lessor, although the lessee refused to enter, and never Lad been in possession of the demised premises. "^ The as-signcc of a note given for rent of l.md may maintain an action for money had and received, against a purchaser of the tenant's crop who bought with notice of the lien, and has sold the crop, and received the proceeds of the sale;'' so when property is delivered to a landlord as security for payment of rent he is entitled to the possession and may maintain an action for a dis- turbance thereof.!** Upon the death of the lessor the rent already accrued may be recovered by the administrator, that subseejuently accruing by the heir, '** and if contiicting claims are made thereto the tenant may have them determined by interpleader.^" 1 E. & P. Manuf. Co. r. Gibson, 62 Ala. -^ ; Cronu^lln «•. C'o.\o, .« Alu. 32i; Comes r. Harris, I X. Y. 226; Inskeep c Slii.-lds, h* >. J. L. :i4o; gc-iierallv Austin r. Iliulsoti 11. Ry. Co. 2o X. V. :Si7 ; j>t:irk r. :iill-r, -.i Mo. 470 ; :McHeur:.- r. Marr, 3J :Ma. 0:0. 2 iMskeen v. .Shields, IJ X. J. L. Mo. g 80 "WHO MAY SUE AXD BE SUED. 226 :j Wontworth i-. Railroad, 55 N. H. 543, 4 Larlcin v. Taylor, 5 Kan. 441 ; compare Monlton v. Bobinson, 27 X. ir. ool : and see Peebles v. Lassiter, 11 Ired. 74 ; Sandeliu v. Shaw, t) Jones, 228. 5 Front V. Hardin, 56 Ind. 166; bnt see Wells v. HoUeubeck, 37 Mi;'h. 5. 5. G Morrison v. Mitchell, 4 Houst. ;i25, 7 Sanders i'. Ohlhausen, 51 Mo. 164. 8 Ans-in v. Hudson R. Ry. Co. 25 X. Y. 337; generally Stark v. Miller, 3 Mo. 470 ; compare also McHenry i\ Marr, 39 Md. 510. 9 :Moses ?'. Old Dominion Q. & X. AV. Co. 75 Va. 96 ; Fitch v. Gosser, 54 Mo. 2(1 i ; and see Shaw v. Cumniinsky, 7 Pick. 76 ; compare Ganter 7'. Atkinson, Ko Wis. 50 ; generally Beers v. Beers, 21 Mich. 467 ; Leer. Payne, 4 Mich. 115. 10 Sacket v. Wheaton, 17 Pick. 104 ; generally Coburn v. Palmer, 8 Cnsh. 126. 11 Thompson v. Woolf, 8 Oreg. 455. 12 Bnrkey r. .Self, 4 Sneed, 122 ; and see Dodd v. Benthal, 4 Keisk. 602. 13 Ingrahani ?•. Bunnell, 5 Met. 123. 14 Treat v. Liddell, 10 Cal. 302; see also Ferguson v. PTam, 27 Mo. 250. 15 Campbell v. Hatchett, 55 Ala. 552. 16 Birckhead v. Cummins, 33 X. J. L. 44. 17 Westmoreland v. Foster, 60 Ala. 45-1; generally Butt v. Ellett, 19 Wall. 547 ; Lavender v. Hall, 60 Ala. 216. 18 Chamblee v. McKenzie, 31 Ark. 155. 19 Cole?'. Patterson,25 Wend. 458 ; CBannonn Roberts, 2 Dana, 54 ; King >\ Anderson. 20 ind. 'iSd; generally Campan ?'. Shaw, 15 Mich. 260 ; Marshall v. Moseley, 21 X'^. Y. 2«1. 20 Badeau v. Tylee, 1 Sand. Ch. 271 ; see generally Seaman r. Wright, 12 Abb. Pr. :i05. I 80. Landlord and tenant, suits against. — When a law- ful act is done npou laud by tlie owner, no action will lie there- for in favor of an adjoining owner, although the act be malicious.^ One who negligently constructs his premises, or ■when they become defective, negligently permits them to remain so, is liable to his tenant, free from fault, who is injured thereby ; 2 even if the duty neglected is one imposed by statute;^ if a third pei'son sustain injury from the defect or want of repair of premises in possession of the tenant, the pre- sumption is that the tenant is liable.* So for the negligent use of premises by the tenant ; & but if the landlord holds posses- sion for his own use of a part of a building, the rule does not apply, and the tenant may recover for an injury resulting to 227 LA>-DLOBD AND TENANT. g 80 him from the negligent use of the premises by the fonner,' And so the landlord is liable to a third person for an injnry resulting from the unsafe condition of the premises in his possession;' but a distinction exists between an express or implied invitation to come upon the premises, and a bare per- mission or license to use them.^ The action of ejectment is a fiction founded upon the j)rinciple that the tenant in possession is a wrong-doer as against the plaintiff, and unless he is so at the time the action is brought the plaintiff cannot recover." If the lands are in the possession of a tenant he is the proper party defendant ; ^" the landlord may, however, in most cases, when his title is drawn in issue, be permitted to defend in the name of the tenant ; ^^ or he may be substituted as party defendant, ■'■' or both may be made parties. ^^ A plaintiff may declare upon the same title against as many persons as are in possession of the premises claimed, but separate defense may be made.** The recovery may be for any amount less than the whole amount claimed,'^ and cannot be defeated either by the fact that plaintiff took possession after suit brought, "^ or defendant became the owner of the premises.^' When lands are occupied by the permission of plaintiff, without an express contract, the law will imply a promise to make a reasonable com- pensation for the use and occupation.^** Under the provisions of the Code, the lessee and one who guarantees payment of the rent may be jointly sued in the same action,'" and one who purchases land at execution sale may become party to an action, for the recovery of rent accruing after the purchase by motion made upon proper notice to the tenant occupying the land.^" When several tenants are in the common possession of stock, they may be jointly sued for trespasses committed by it, although the several animals were owned by them sepa- rately, ^i 1 Phelps v. Nowlen,?2 N. Y. oQ ; compare Howland r. Vincent, 10 Met. 372 ; and see Kolm ?•. Lovett, 44 Ua .-256 : generally WalktT r. Cronin, 107 Mass. oW ; Green leaf r'. Francis, 18 Pick. 121: C'hatflelrt V. Wilson, 28 Vt. 5;i; Frazier v. Brown, 12 OhioSt. 2'J8; Wheutley v. Baugh,25Pa. St. 5:». 2 Scott V. Simons, 51 X. H. 429 ; generally Eeeves v. Larkin. i;» Mo. 192 ; Gddley v. Hagerty, 20 Pa. St. 397 ; Willy r. Mulledy,7S N. 'i . 313. ? 81 WHO MAY SUE AND BE SUED. 228 •A Willy J'. Mulknly, 78 X. Y. 318 ; McAlpiii v. Powell, 70 X. Y. 126. •1 Chicago V. O'Brennati, a:> 111. 165 ; Raster v. Newkouse,4 Smith, 5 Killion 1'. Power, .51 Pa. St. -131 ; Simonton v. Loring, 68 Me. 164. 6 Priest v. Xichols, 116 Mass. 407 ; Totten v. Phipps, 52 X^. V. •.'M. 7 Elliott V. Frav, 10 Allen, 378 ; and see Ja.ffcr v. Adams, t23 :Mass. 27; Kenerallv Saleshnrv r. Ilerchcnroder, 106 Mass. 45); compare Kolin r. Lovett, 44 Ga. 2.tG ; Rowland r. Vincent, 10 Met. ;-;72. 8 Beck r. Carter, 68 X. Y. 292; generally Rowland v. Vincent, 10 Met. 372 ; Kohn v. l.ovett, 44 Ga. 2r>(i ; Sweeny v. Old Colony e joined, he not being a party to the contract of affreightment, or to tliat between the plaintiffs.^" When one part owner of a chattel is entitled to the exclusive possession, he may maintain t.-over against a co-tenant for depriving him of it.^^ So if one or more joint owners of a vessel wrongfully seize it, and thereby inten-uj)t a voyage for which she is then under cliarter, the part owners injured thereby may maintain an action again&t the former to recover the damages sustained.^2 jf qu^; tenant in common of a chattel by a sale converts it wholly to his own use, an action of trover may be maintained against him by his co-tenant ; ^-^ so if he destroys or consumes it,^* or places it in such position that its recovery is impracticable.-^ When the goods are separable in respect to quantity and quality by weight or measure, each tenant may demand of his co-tenant, who has the whole property, his share, and upon refusal to dc liver, or for a conversion thereof, may maintain an action in his own name alone. ^^ The general rule, however, is that one tenant in common cannot sue a co-tenant in trover ; '' and as neither has the right to the exclusive possession of the chattel, detinue vrill not lie by one tenant against the other.^** So one tenant cannot maintain traspass, trover, or replevin against an oflieer who attaches his co-tenant's interest in the chattel ;'" but if the officer sell the whole interest, he may be treated as a trespasser ah iyiitio.^^ An action at law maybe maintained by one part}- to a contract for the construction of a vessel, against amnhcr party to it for a breach thereof, even though they are to be tenants in common of the chattel when completed.-^ As a rule part owners of a vessel are prima facia liable for materials Parties — 20 g 81 WHO MAY SUE AND BE SUED. 230 used either in her construction '^'^ or repair.-^ When an agree- ment is entered into between the owners of a vessel, by which one part owner for a certain sum to be paid him agrees to procure insurance upon the joint interests of the other part owners, upon faihu-e to perform the agreement by the latter an action lies in favor of each part owner severally.^* One part owner may maintain assumpsit against his co-owner to recover a con- tribution for services rendered by the former, in and about the common business in pursuance of a contract between them for such services.2» When defendant is master and part owner of a vessel, ai:d plaintiff is part owner of the cargo, he may main- tain an action for his share of the proceeds of the sales of the cargo received by the former. ^'i In an action of detinue plaintiff must show an exclusive title to the chattel sued for ; if the chattel is owned by several, all must join in the action. '-'' "When a joint owner authorized to sell makes false and fraudu- lent representations as to the soundness of a chattel, whereby a person is induced to purchase, all the joint owners are liable for the deceit. 28 1 Gent r. Lvnch, 23 Md. 64 ; generally White v. Brooks, 43 N. H. 40i: ; Parker v. Parker, 1 Allen, 246 ; Chandler v. Darling, 22 Minn. KOS ; compare Brizandine v. Frankfort li, Co. 2 Mon. B. 33. 2 Gent r. Lynch, 23 Md. 64; Webber v. Merrill, 84 N. II. 208; Tiiompson v. Hoskins, 11 Mass. 419 ; and see Mitchell v. Chambers, 43 Midi. 157; Chardler ■?'. Darling, 22 Minn. 305; see also Smoot v. Wat lien, 8 Mo. 523 ; Bartlett v. Goodwin, 71 Me. b52. 3 Gilmore ?•. Wilbur, 13 Pick. 124 ; but see Smith v. Wiley, 22 Ala. 400 ; Tankersley v. Childers, 23 Ala. 783; Kennison v. Ham, 29 N. H. 505. 4 Allen ?'. Ford, 12 Pick. 218 ; Jones v. Hoar, 5 Pick. 289 ; but see Hill V. Davis, 3 N. H. 384 ; generallv Brown v. Holbrook, 4 Gray, 103; Ladd V. lioflsers, 11 Allen, 211 ; compare Kobertsr. Evans, 43 Cal. 381 ; I)e la (Jiun-ra v. Newhall,55 Cal. 23; Fields v. Bland, 81 N. Y. 241; Kak'khofr r. Zoehrlant, 40 Wis. 4S0 ; Bradv v. Brennan, 25 Minn. 210 ; Logan V. Wall is, 76 N. C. 418 ; Collins v. Johnson, 1 Hemp. 279 ; Fiquet V. Allison, 12 :\Iich. 332. 5 Berkshire G. Co. v. Wolcott, 2 Allen, 228; generallv Frattr. Clark, 12 Cal. !)0 ; Berry v. Tavlor, 5 Hill, 583 ; Chamblee v. McKenzie, 31 Ark. 162; Brady t-. Brennan, 25 Minn. 210; Y. B. Co. v. Newby, 1 Oreg. 173. C Jones V. Hoar, 5 Pick. 290 ; and see Hill v. Davis, 3 N. H. 385. 7 Robinson v. Gushing, 11 Me. 481 ; Jellison v. Lafonta, 19 Pick. 245 ; see Hoyt ?•. .Spraguc, 12 Pick. 412. 8 Robinson v. Cushing, 11 Me. 481. 9 Blanchard v. Dyer, 21 Mo. 112 ; White v. Curtis, ;:5 Me. 534 ; and gcr.erally sec Marshall v. Mcseley, 21 N. Y. 281. 231 JOINT TENANTS, TENANTS IN C03DI0X. ? 82 10 Bowman v. Bailey, 10 Vt. 172; see Phillips r. Pcniivwlt, I Ark. fil ; compare Robinson v. Cushiiig, 11 Me. 4«I ; generufly iJunie v. JIadlock,4Plck. 459. 11 Thompson v. Cook, 5 N. J. L. 5S0. 12 Kellnm v. Knechdt, 17 Hun, 5S3 ; generally Chesloy i-. Thomp- son, 3 X. H. 2 ; Quillot v. Dossat, 4 Mart. 20.i. 13 Russell V. Russell, 62 Ala. 50; generally Permlntcr >•. K.-llv, IS Ala. 713; Cowles v. Garrett, :«J Ala. 3.50; Piquet v. .Mlisoii. 12 Mich. :i30; and see Goell v. Morse. 126 Mass. 481 ; Weld v. Oliver. 21 Pick. 531 ; White v. Brooks, 43 N. H. 405. 14 Smith V. Rice, 56 Ala. 425 ; Williams v. Xoleii, ^A Ala. 16.^ ; firl-n V. Wicker. 80 X. C. :i44 ; Herrin v. Katon, 13 Me. ISHi ; iiiul hcc VunihUl B. Co. r. X'ewby, 1 Oreg. 173 ; Boston v. Morris, 25 X. J. Kq. 476 ; Curr V. Dodge, 40 X. H. 407 ; Given v. Kelly, 85 Pa. St. 312. 15 Lucas V. Wassan, 3 Dev. SOS ; Moore v. Love, 3 .Tones. 217 ; Grim V. Wicker, 80 X. C. :i44 ; Ripley v. Davis, 15 Mich. 7 i ; .set- l-itt r. Poi- v.-av. 12 Ired. 72 ; Delaney v. Root, 99 Mass. 547 ; Given r. Kelly, 65 Pa.' St. 312. IG Stall r. Wilbur, 77 X. Y. 1&4 ; Lobdell r. .Stowell, .:i X. Y. 73; Lobdell V. Stowell, 37 How. Pr. 90; Piquet v. Allison, 12 Mich. :«! ; compare Powell v. Hill, 64 X. C. 171 ; Delaiiej- v. Root, li.) M:;ss. .>!7. 17 Move V. 2 Havw. fX. C.) 3S7; generally ramphcll r. Campbell, 2 Murph. 65 ; Powell v. Hill, 64 X. C. 171 ; Fiquet r. Allison, 12 Mich. Xil ; Thompson v. Cook, 5 X. J. L. 5S0. 18 Smith V. Rice, 56 Ala. 425 ; Powell r. Hill, M N. C. 171 : BonDcr V. Latham, 1 Ired. 274 ; Boylston Ins. Co. v. Davis, 63 X. C. 21. 19 Prince v. Shepard, 9 Pick. 185. 20 Brvant v. Clifford, 13 Met. 142 ; Prince r. Shepard, 9 Pick. 185; Sheppafd v. Shelton,34 Ala. 657 ; and see Ladd v. JUU, 4 Vt. 170. 21 Ripley V. Crocker, 47 Me. .373. 22 Dickev v. Mullford, 7 Alb. L. J. 416 ; generally Costigun v. Lunt, 104 Mass. 217. 23 Williams r. Sheppard, 13 X. J. L. 76; generally Barston v. Fos- sett, 11 Mass. 250 ; Beatty v. Bordwell, 91 Pa. St. 441. 24 Cleaves v. Lord, 3 Gray, (». 25 Strother v. Butler, 17 Ala. 7;» ; generally Cloon v. Insurance Co. 1 Handy, 3:3 ; Hinton v. Law, 10 Mo. 701. 26 True v. McGilvery, 43 Me. 4S6. 27 Parsons v. Bovd, 20 Ala. 117; generally Clarkson r. Hooth, 17 Gratt. 495. 23 While v. Sawyer, 16 Gray, 53;); and see Davis r. ::i:rnett, 4 Jones. 73. ? 82. Same ccntiaued — Suits relating to reel i:rop:rty.— As a rule at common law tenants in common coukl ii^: join as parties to a real action. i By statute tbcy may join if they desire,'-^ or may sue separately ;-^ but if there has b.t.n a sever- ance of the estate, and the legal interest is several, each must sue separately for his damage for breach of the covenants that g 82 WHO MAY SUE AND BE SUED. 232 run with the estate.* In chancery they may join in an action to perfect their title and quiet them in their joint possession of the common estate.^ One tenant in the actual possession of tlie estate may maintain an action against a co-tenant to deter- mine the validity of an adverse claim of title to the premises made by the latter.^ In an action for the destruction of the title deeds of the premises all the tenants in common should join." So also Avith respect to tresimsses on lands the tenants should join in an action to recover for the injury to their joint possession ; ** hut one tenant may sue alone as against a mere stranger.^ Tenants in common of a mill may sue jointly for a diversion of water therefrom,^" but cannot sue jointly for a breach of defendant's covenants with reference to the water.n If defendant fails to plead in abatement the non-joinder of plain tiifs the objection is waived. ^^ One tenant may maintain an action on the case against a co-tenant for any act dene on the land amounting to waste, but cannot maintain qiiare chtusina fregit against him,^^ nor against one who enters by his permission.^-* T^'hcn the title to lands is in tenants in com- mon, a joint action of ejectment cannot be maintained by two or more and less than the whole number ; they must all join,i& or bring separate actions,!'^ and may join as defendants all prrsons in possession of the premises, even though they claim separate and distinct parcels thereof. ^^ One tenant cannot maintain ejectment against a co-tenant without proof of actual ouster there from .^^ An ouster may be proved by exclusive possession, accompanied with a notorious claim of exclusive right ; '" but a mortgage of the whole estate by one tenant is not conclusive evidence of an ouster.^" If, however, the mort- gagee enters upon the share so mortgaged claiming the entire title it is in law an ouster.^i Tenants in common may maintain a joint action for the recovery of rent when there is an agree- ment to pay the en^tire rent to the lessors. '''^ If there has not been a joint letting each tenant may maintain a separate action for his share of the sum elue for the use and occupation.^s When one joint ownier leaves the premises anel fails to cr.ltivate he cannot in absence of an agreement to pay rent maintain an 233 JOINT TENANTS, TENANTS IN COMMON. > 82 action for use and occupation against the joint tenant who remains in possession and ci;ltivatcs a portion ni>t t:;cci;u*ug one half of the premises ; '-'* nor can the tenant in poKsoaijioa maintain an action to recover for such sliglit repairs ati aro neccssary to enable him to SDcuro his crop."^ A. and X. were tenants in common of land, X. died, leaving a widtjw and minor children, the widow collected all and applied t::e rtntji in the support of herself and children; held, a joint action would not lie by A. against the children to recover his bhare of the rent.-'' A tenant in common of a life estate cannot re-covor treble damages under Eevised Statutes (ilaine), chap. 05. '{ 5, for an injury to the common property by a co-tenant;-^ but after a recovery in ejectment one tenant may maintain an action of trespass for mesne profits against his co-tenant.'-'* When A. sold to X. all the standing grass upon premises owned in com- mon by A. and B., and X. harvests and removes the crop, ho cannot defeat a recovery of the purchase i^rice in an action by A. on the ground that B. had forbidden the payme-nt.-"'* The right of action for use and occupation is in t!;e surviving tsnant alone. ^"^ A court of equity will entertain a bill for the partition of lands at the suit of a joint tenant or te-nant in com- inon who shows a clear title to an undivided interest therein ;'^ and the right extends to every estate in real p"oix?rty htltl johitly with others. 2- A.11 the part owners should be made parties to the proceeeling.^^ and whether namcel as phintifT or el:fcndant are all actors, each representLug his own inuTcst.'* To maintain the action the plaintiff must be iu possession of the premises. ^^ "When an actual partition of the pre'mise-s can- not be made without injun^ to some or all of the parties in interest, a sale may be ordered by the court.'^ "When two mortgages are given by the same person to several persons, and to secure several obligations at the same time ard upon the same land, the mortgagors thereby become tenants in common, their rights are the same as though one mortgage was given to both to secure to each his separate debt,''^ each may mf^ri-e lia right by separate suit,-^ or they may sue jointly.'^* Yi'hcn one tenant in common removes an encumbrance from tlie common g 82 WHO MAY SUE AND BE SUED. 234 estate, he may recover contribution from his co-tenants to the extent of their interests.'*" 1 Stevenson v. C'offerin, 20 N. 11. VA; Svvett v. Patrick, ]1 Me. ISO. 2 Swett V. Patrick, 11 Me. 180. 3 Lamb v. Danforth, 53 Me. 324. 4 Allen v. Little, 36 Me. 175 ; generally Lamb v. Danforth, 59 Me. 321. 5 Coruwell r. Lee, 14 Conn. 527. G Koss V. lleintzen, 36 Cal. 314. 7 Daniels v. Daniels, 7 Mass. 136. 8 Mav V. Slade, 24 Tex. 203 ; Austin v. Hall, 13 Johns. 287 ; Y^inters r. McCJhoe, 3 Snpcfl, 121) ; sec Camp v. Homesley, 11 Ired. 212 ; Lathrop V. Arnolfl, 25 3Ie. i:;6 ; Colquitt v. Howard, H Ga. 562 ; generally Lcisse r. St. L. & I. M. Ry. Co. 2 Mo. App. 117.: 9 Bisrelow v. Rising. 42 Vt. 670; and see Camp v. Homesley, 11 Ired, 212 ; Putney v. Lapham, 10 Cush. 234. 10 Samuels v. Blanchard, 25 Wis. 335 ; generally Moor v. Shaw, 47 Me. 83; Ballon v. Inhabitants of Hopkinton,4 Gray, 017 ; Sumner v. Tileston, 4 Pick. 303. 11 Samuels v. Blanchard, 25 Wis. 335. 12 Winters r. McGhee, 3 Sneed, 130 ; Putney v. Lapham 10 Cush. 2:J4 ; gon(>r;'.llv Xorthum v. Kellogg, 15 Conn. 573 ; Sumner v. Tileston, 4 Pick. 30S ; Hobbs v. Hatch, 48 Me. 60. 13 Anders v. Meredith, 4 Dev. & B. 200 ; McPherson v. Sequine, 3 Dev. 154 ; see Bishop ?•. Blair, 36 Ala. 85 ; compare Thompson v. Ger- rlsh, 57 X. H. 86 ; M'ood v. Griffin, 46 N. H. 237 ; generally Moody v. McClellan,33Ala. 45. 14 Anders v. Meredith, 4 Dev. & B. 200 ; but see Wood v. Griffin, 4G N. H. 237. 15 Hasbrouck v. Bunce, 62 X. Y. 479 ; compare AVatrous t'. McGrew, IG Tex. 511 ; Morenhaut v. Wilson, 52 Cal. 263 ; authorities hifra. 16 May v. Slade, 24 Tex. 207 ; and see AVatrous f. McGrew, 16 Tex. 511 ; Hasbrouck v. Bunco, 62 N. Y. 473 ; generally Stark v. Barrett, 15 Cal. 371 ; Ki;:g r. Bullock, 9 Dana, 41; Winthrop v. Grimes, Wright, :i31 ; Rchoboth v. Hunt, 1 Pick. 225 ; Hines v. Trantham, 27 Ala. 361 ; compare Dowey v. Lambior. 7 Cal. 347 ; Donner v. Palmer, 51 Cal. eBO ; see also Goller v. Fett, 30 Cai. 484 ; Touchard v. Keycs, 21 Cal. 20J. 17 Woolfolli V. Ashby, 2 Met. (Ky.) 238. 18 Linker v. Benson, 67 IST. C. 153 ; Trustees etc. v. Johnson, 60 Barb. 123 ; generally Avery r. Hale, CO Vt. 13 ; Elliott v. Frakes, 71 Ind. 412 ; Den r. Johnson. Bush. 335; Lawton v. Adams, 23 Ga. 275; WMlson z\ Collinshaw, 13 Pa. St. 277. 19 Avery v. Hall, 50 Vt. 13 ; Trustees etc. v. Johnson, 66 Barb. 123 ; SCO Hodtrdon v. Shannon, 44 N. H. 577 ; Wood v, Griffin, 46 X. H. 2;^ ; Great Falls v. Worster, 15 X. H. 460. 20^IIodgdon v. Shannon, 44 N. H. 578 ; Wilson v. Collinshaw, 13 Pa. 21 Wood V. Griffin, 40 N. H. 237. 22 Wall V. HiMds. 4 Gray, 268; and see Xewton v. Reardon, 2 Cranch C. C. 51 ; Price v. Pickett, 21 Ala. 743. 235 JOrS'T TENANTS, TENANTS IN CO^niON. \ 82 23 Wood V. Montgomery, 60 Ala. oO:) ; gsnerallv Snillh v. V.'IIhv, 22 Ala. 400. 24 Becnel v. Becnel, 23 La. An. 150 ; llulfoiir v. Balfour, :« I^i. An. 299 ; and see Peck v. Carpenter, 7 Gray, 2>;. 25 Becnel v. Becnel, 23 La. An. 150; Balfour v. Balfour, .T5 La. An. 293. 26 Shepardson v. Bowland, 28 Wis. Ill ; generally Taylor v. Pk-rfC, 43 Me. &41. 27 Richardson v. Richardson, 64 IsIq. 62. 28 Tongue r. Nutwell, 31 Md. 319 ; generally Bennett r. Bulloc'.:, .Vi Pa. St. 3C6 ; Critchfield v. Humbert, 3J Pa. 8t. 423 ; Holdfast r. .Shep- ard, 9 Ired. 223 ; Thomas v. Kelly, 13 Ired. 45. 29 Brown v. "Wellington, 106 Mass. 319 ; and see Peck v. Carpenter, 7 Gray, 283 ; compare Goodspeed v. W. S. L. Work.s, 2 Utah, 2:,). 30 Dell V. Gardner, 25 Ark. 13.5. 31 Arnett v. Bailey, 60 Ala. 439 ; generally Horton r. 5^1e<;;,'c>, 2.i .Ma. 493. 32 Tabler v. Wiseman, 2 Ohio St. 210; and see Smith r. I'r::::. ir, Ohio, 5.50. 33 Sutter v. San Francisco, 36 Cal. 114 ; generally De Uprey v, De ITprey, 27 Cal. :W1. 34 Senter v. De Bernal, 38 Cal. 642 ; Morenhout v. Higuera, 32 Cal. 295. 35 Wommack v. Whitmore. 53 Mo. 457; Adams v. Ames Iron Co. 24 Conn. 233 ; generallv Browiicll v. Brownell, 19 Wend. :>09 : hut .see Tapler v. Wiseman, 2 Ohio St. 211 ; Arnett v. Bailey, 60 Ala. 439. 36 Holmes v. Holmes, 2 Jones Eq. 335 ; generally see Long r. Mul- ford, 17 Ohio St. 4S5. 37 Cochran r. Goodell, 131 Mass. 465 ; Howard v. Chase. 104 Mass. 2.51 ; see also Webster v. Vandeventer, 6 Graj", 429. 33 Burnett v. Pratt, 22 Pick. 557. 39 2Coyes v. Barnet, 57 X. H. 695 ; Cochran v. Goodell, 131 Mass. -I^G. 40 Titsworth v. Stout, 49 111. SO. •A £3 \VHO 3L\Y SUE A:>D EE SUED. 230 CHAPTER XII. ji.-.s"- ::i: A^-D serva:;t, pkincipal axd aci:xt, pkincipae a:,-d SURETY, bailor Al^D BAILEE. J r,:!. Master and servant, suits by and against. 2 £}. Principal and a^'ent, suits by. § to. 8amo continued, suits agaiiir.t. 1 CC>. Principal r.nd surety, suiis by a:'.d ag;i1nst. 2 i;7, Uailor and bailee, Huits by and against. g C3. Hcstsr and servant, suits by and against. — A minor has no claim for services rendered by liim during minority, the right of action therefor h in the parent ; ^ so the parent U the owner of the clothing furnished for the use of the minor, and may recover for its loss or destruction ; ^ as between brothers or other persons standing in near relation to each other, the law will not imply a contract to pay for board and lodging or for work and labor given or performed one for the other, in absence of express promise.^ When a person employs another to perform labor for him during a stated term he may maintain an action against a third person who, knowing of such contract of employment, entices, hires, or persuades the laborer to leave the employment during the term.-* In an action for the seduction of a minor child the relation of master and servant must exist either actually or constructively to enable the father to recover therefor. '^ If the child be of full age she must be in her father's service so as to constitute in law and in fact the relation of master and servant.*' It is no defense to the action that the crime was rape and not seduc- tion,^ nor is it a defense to the action that the servant con- sented willingly or even in fact seduced the defendant ;** but if the defendant and the daughter slept together in accordance with the custom known as "bundling," and with the knowledge of plaintiff, the knowledge amounts to connivance and is a good defense to the action.^ The action h founded upon the relation 237 M.\STER AND SEEVAXT. J 88 of master and servant, and not upon that of parent and child, and the gist of the action is the consequential loss of service ; •" but the relation of master and servant is little more than fiction made use of as necessary to support the action. '* Vixm the death of the father prosecuting the action as plaintiff the action abates and cannot be revived. i- It is a principle of the com- mon law- that a master may maintain an action for a loss of service sustained by the tortious act of another, whctlier tho servant be a child or not.^^ When an injury results to a cor- poration from the negligent acts of an employee in the jxTform- ance of his duties, it may recover damage in an action against him.^* The general rule is that when a master employs a ser- vant to do an act which involves the iise of force against tho person or property of another, and the servant in the course of his employment uses force in a manner or to an unlawful extent, both are liable jointly as trespassers. ^^ The master is liable for tortious acts of his servant done in the course of hia employment, whether the act or omission be negligent, fraud- ulent, or deceitful, and it is immaterial whether the act done be authorized or forbidden by the master ; ^^ but he is not liaVilo for injuries resulting fi'om negligent acts of the servant while engaged in an unauthorized act, beyond the scope and duty of his employment.!^ A distinction exists between a contractor and a servant ; if a person employed to do work acts in pursu- ance of a contract with his employer, and the power of direct- ing and controlling the work is parted with by the employer and given to the contractor, he (the contractor) is liable for negligent acts of employees whereby injury is sustained ; •'' but if the employer retains the power of directing and controlling the time and manner of executing the work or of refraining from executing it, the employer is liable ; ^^ and so where an obstruction or defect which occasions the injury results directly from the acts which the contractor agrees and is authoriziil to do, the contractor and employer are equally liable. ■•'" After the work is completed and accepted by the employer he is liable for mjuries received by others whom he inducts to use it, when the injury results from negligence in its construction, its g 83 VEO MAY SUE A>-D BE SUED. 2S8 dangerous condition not being apparent to tbem.^^ YThen one agrees to furnish another with a team and driver, the former i^ liable for injuries caused by the incompetence of the servant ; - but for acts done within the scope of this employment and in pursuance of his orders the hirer is liable."^ An action on the case will not lie against the master and servant jointly for the negligent acts of the servant alone, the master not being present or authorizing them.-* When the personal negligence of the master has direc ly caiised an injury to the servant, the liability is the same as though caused to one not a servant ; '^^ but for a mere negligence of an employee the master is not liable to another engaged in the same general service. ^^^ When a person is employed to do certain work at a stated salary, and it is shown that he has been ready and prepared at all times during the period of the engagement to do the work, he is entitleel to recover the whole amount of the salary without regard to the amount of work done ; ^^ but if dischargeel during the term of emplt;yment for cause, he must iTse reasonable diligence to obtain employment of the kind or similar to that mentioned in the contract.-** 1 Dufield V. Cross, 12 lU. 397. 2 Parmelee v. Smith. 21 111. 622. 3 State V. Connoway, 2 Houst. 203. 4 Jones V. Blocker, 43 Ga. 331 : and see Salter v. Howard, 43 Ga. 603; Barron v. Collins. 49 Ga. 581; Walker v. Cronin, 107 Mass. 562; Jlaskins v. Boyster, 70 N. C. 604. 5 Kennedy v. Shea, 110 Mass. 150 ; generally Hornketh r. Barr, 8 Serg. & R. 37 ; Greenwood v. Greenwood, 28 Md. 380; IVWAulay v. Eirkhoud, 13 Ired. 30; Briggs v. ilvaus, 5 Ired. 19; Sover v. 1)111,3 Iowa, :}:;;). 6 Phipps V. Garland, 3 Dev. & B. 45 ; Nickleson v. Stryker, 10 Johns. 137 ; McDaniel v. Edwards, 7 Ired. 409. 7 Kennedy v. Shea, 110 Mass. 151 ; Furnam v. Applegiite, 23 N. J. L. 29. 8 McAulay v. Birkhead, 13 Ired. 30. 9 Hoi lis V. Wells, 3 Pa. L. J. 171. 10 South V. Denniston, 2 Watts. 476 ; Hollis v. Wells, 3 Pti. L. J. £0 ; 31cDanicl V. Edward, 7 Ired. 409; Greenwood v. Greenwood, 23 Md. S'jO ; Kennedy v. Shea, 110 Mass. 161. 11 Ilollis V. Wells, 3 Pa. L. J. .^1 ; Briggs v. Evan.s, 5 Ired. 20. 12 McClure v. Miller, 4 Hawks, l."7. ,,l\^^^'"^.f|.l;^''^rd V. Washburn, 3 Denio, 373; Ames v. T'nion Railway 11/ Mass. .>13 ; Passenger By. Co. v. Stuller, 54 Pa. St. 378. 239 FEES'CIPAL A>rD AGEXT. g 84 14 :Mobile & :SI. Ey. Co. v. Clanton 59 Ala. .'»2. 15 Holmes v. Wakefield, 12 Allen, 5S1 ; Hewett r. Swift. 3 Allen 422 ; Moore v. Fitchoiirj- Ry. 4 Gray, 467. 16 Maddox i-. Brown, 71 Me. 433 ; Redding v. S. C. Rr. Co. 3 .S c C • Simonton r. Loring, 6S Me. 164 ; Phila. & Reading Rv.'Co. »•. Derbv! 14 How. 486; generally Garretzen v. Dueckkel, 50 Mo! 107 ; Cousins V Han. & St. Jo. Ry. Co. 68 Mo. 575; Goddard v. (irand Trunk ICv .57 Me. 211 ; Atlantic & G. W. Ry. Co. v. Dunn, 19 Ohio .St. 167 ; < '. & N W. Ry. Co. V. Williams, 5.5 HI. 1»6. 17 Cavanah v. Dinsmore, 12 Hun, 467; Quinn r. Power, 17 ITun, 101 ; Parker v. Erie Ry. Co. 5 Hun, 5S ; Maddo.\ v. Brown, 71 Me. 433; Herlihy v. Smith, 116 Mass. 265 ; Bard v. Yohn, 26 Pa. St. 45S. 13 Conners v. Hennessey, 112 Mass. 98; generally Brackef r Lubko, 4 Allen, 140 ; Forsythe v. Hooper, 11 Alkn. 421 ; Mulchev r. MethoJist Soc. 125 Mass. 4SJ; Hilliard v. Richardson, 3 Grav, ijO; Town cf Pierrepont v. Loveless, 72 X. Y. 215; Hundhaus-^n r.'Bond, 36 Wis. 40; Robbins v. Chicago, 4 Wall. 679 ; compare Metz v. Buffalo C. lrl, 47 l'o:i:'.. 33J ; S2e Braclen v. La. St. Ins. Co. 1 La. 221 ; Willarcl ;•. LiiK.»'ibiihl. 21 La. An. 18 ; Carr v. United States, 13 Ct. of CI. 14G ; Harp v. Osjfool. 2 Hill, 218. 3 Culver v. Bigelow, 43 Vt. 255; generally Ilsloy t-. Mc'rrl.im. 7 Cush. 243 ; Barrv v. Page, 10 Grav, 3i» ; Mat. Lifo Ins. Co. c. Alloii. IIB Mass. 39); Sutton v. Mansfield. 47 Conn. 3S); U. R. & E. Uy. lo. v. Walsh, 85 111. 5); Nicoll v. Burke. 78 X. Y. 583; a:ul s.-c Foster r. Smith, 2 Cold. 475 ; Ramsdell v. Unitod Stat.'s, 2 1 1. of CI. 515 : M Nalr V. Thompson, 5 Mart. (La.) 610 ; compare BradiMi i . La. St. Ins. Co. I La. 221; and see Jowers v. Blandv, 5> Ga. 3s:{; Brooks r. Mmturn. 1 Cal. 4S3; Ruiz r. Norton, 4 Cal, 357; Thurn r. Alta T i «... i:, Pa-ities — 21 2 85 "WHO MAY SUE AND BE SUED. 242 Cal. 474 ; Oclrichs v. Ford, 21 Md. 501 ; see Sisson v. Cleveland & T. Ry. Co. 14 Mich. 4% ; Newcomb v. Clark, 1 Donio, 228. 4 Ilsley t>. Merriam, 7 Cush. 243. 5 Willord v. Lugenbuhl, 24 La. An. 18. 6 Ely V. Porter, 5S Mo. 153 ; generally Durfee v. Morris, 49 Mo. 55 ; Ord V. McKee, 5 Cal. 516 ; Buffuni v. Chadwick, 8 Mass. 103 ; Clap v. Day, 2 Me. 307 ; Whitcomb v. Smart, 38 Me. 26-5. 7 Fairfield v. Adams, IG Pick. 382. 8 AVliitcomb v. Smart, 38 Me. 265; generally Bragg v. Greenleaf, 14 Me. 3«6. 9 Natl. Life Ins. Co. v. Allen, 116 Mass. 390 ; see Garland v. Rey- nolds, 20 Me. 4(! ; State v. Boies, 11 Me. 474. 10 La Coste r. De Armas, 2 La. 365; generally Smead v. Fay, 1 Disn. .>n ; Devol v. Barnes, 7 Hun, 342. 11 La Coste v. De Armas, 2 La, 365 ; generally Huntington v. Knox, 7 Cush. 373. 12 Smead t;. Fay, 1 Disn. 531. 13 Moore r. Henderson, 18 Ala. 232 ; generally Comml. Bank of Penn. ?■. Union Bank, 11 N. Y. 208; see Branch Bank of Moutg'y v. Svndor, 7 Ala. 301) ; Herron v. Bullitt, 3 Sneed, 498 ; but see Sevier v. Holliday, 1 Hemp. 160. 14 AVood V. Boylston Natl. Bank, 129 Ma.ss. :^\). 15 Nerlv v. Robinson, 1 Hemp. 9; and see Todd v. Phifer, 1 N. J. L. ;J62 ; but compare Helme v. Littlejohn, 12 La. An. 299; see also Hol- loway V. Holloway, 30 Tex. 176 ; Robson v. Tait, 13 Tex. 273. 16 Brackney v. Shreve, 1 N. J. L. 33. 17 Coggburn v. Simpson, 22 Mo. 352 ; generally Phillips v. Henshaw, 5 Cal. 51 1. 13 Beard v. Sloan, 38 Ind. 135. 19 Tuckwell v. Lambert, 5 Cush. 24; and generally Emma S. M. Co. i\ Emma S. M. Co. 10 The Reporter, .'551. 20 Huntington ?». Knox, 7 Cush. 373; and see Ilsley v. Merriam, 7 Cush. 243 ; Burry v. Page, 10 Gray, 399. 21 Lineker v. Ayeshford, 1 Cal. 76 ; generally Swift v. Swift, 46 Cal. 267 ; Garland v. Reynolds, 20 Me. 46 ; Gunn v. Cantine, 10 Johns. 387 ; White ?'. Bennett, 1 Mo. 102 ; Thompson v. Fargo, biU. Y.480 ; Sutton V. Mansfield, 47 Conn. 388 ; see also Gidding v. Dudley, 47 Mc^. 51. 22 Porter v. Raymond, 53 N". H. 526 ; generally Y. 8. Tel. Co. v. Oilderslcyc, 29 Md. 243; Bryan v. Wilson, 27 Ala. 214; Reynolds v. Reynolds, 10 Neb. 576 ; Buckbee v. Brown, 21 Wend. 112. 23 Roosevelt v. Doherty, 129 Blass. r;02. 24 Ilntchings v. Gilman, 9 N. H. :J^2 ; generally Hollowavr. Hollo- way, 30 Tex. !76; Robson v. Tait, 13 Tex. 272; 'Steele v. McElroy, 1 Sneed, 'M'2. 'i 85. Same continued, suits against. — As a rule it may be stated that \yhen tlic employment of a principal gives his agent means or opportunity, which he uses while so employed in committing an injury to a third person, the principal will be held responsible,^ whether the acts be done with his knowledge 243 PIUN'CIPAL AND AGEXT. J 85 and consent, or subsequent sanction; 2 but it may W( U 1x5 doubted whether a city government may ratify the negiigtnt or tortious acts of its officers, knowing them to be such, ho as to make the city liable t;herefor.» It is a general rule tliat a Bcr- vant who is injured by the negligence or misconduct of a fi How servant, while both are aiding in the common busiucsn of the same master, cannot maintain an action against tl:e ma.xtcr wlio is not chargeable with negligence or wrong;* but if there ii any fault in the selection or retaining other servants,^ or in employing unsafe machinery, the mastrr will be liable for all injury to his servants in consequence. ^ When injury results to a third person from the negligent acts or omissions of an agent done in the course of his emploj-ment, and in the absence of the principal, both cannot be jointly sued in an action to recover damages therefor ; ^ if the agent be in the emil.jymeut of two or more employers, the latter are liable either jointly or severally.^ The principal is bound by the act of his agent in excess or abuse of his actual authority, when a third p rson, believing and having a right to believe that the agent was act- ing within his authority, would sustain loss if the a4.t were not considered that of the principal.^ It is not indispensiblo iu order to binel the principal upon a written instnmunt, that it should be executed in his name and as his act, it is sufficient if from the instrument it can be gathered that the party describe 8 himself and acts as agent, and intenels thereby to biud his princi- pal,^" If an agent make a contract iu his own name without disclosing his principal, the latter is nevertheless bound, and the agent merely adds his personal obligation to that of tho person employing him ; ^^ but if a person contract in his own name as trustee for othei's, the cestuis are not liable, although the fact that he was a trustee was not known at tla- time tho contract wr.s made.^^ ^^ agent as such who is authorized to sell gooels of his principal has no authority to biud him by collecting a portion of the purchase price K^fore it is due; and if it is so advanced anel embezzled by tho agent it may be treated as a loan to the agent, and the principal may recover from the buyer.^-* When money is overpaid to an agent •A 85 WHO MAY SUE AMD BE SUED. 244 by a purchaser, the agency being undisclosed, the latter may recover the amoiint overpaid from the agent, even though he has paid it over to his principal ; i* but if the agency was known the fact of payment to the principal would be a good defense. ^^ If an agent in executing a contract employ words which in legal effect charge himself, he may be treated as the contractirg party ; '« but if the instrument in legal effect bind the principal only, the agent cannot be sued thereon, for the simple reason that the contract is not his.^^ When a public oflBcer who stands in the relation of agent of the government contracts as such officer, and within the scope of his authority, his contract is public and not personal j^" but this rule does not apply when neither the government nor the public in any way can be considered nor held responsible for such contract. ^^ "When a draft is deposited with a bank and the amount credited to the depositor, the bank is merely the agent for the collection of the draft, and does not guarantee its payment.^" If specific chat- tels are taken by an agent, who holds notes for collection instead of money, the principal may treat the agent as trustee and follow the funel.^i If on the other hand the agent had col- lecteel tlie money and paid it to the principal, and the agent was obliged to refund, the note having been forged, an action will lie on his behalf against the principal for money had and received."-^- As a rule the principal cannot maintain an action against the agent for money collected and not paid over until after demand, but this I'ule does not apply when the agent denies his liability.^-' 1 >'. O. Jackson s. y. 552 ; generally Ford v. Fitchburg By. Co. 110 Mass. 260. b McMahon v. Davidson, 12 Minn. 372 ; Filke v. Boston •. Whi : -. 24 Me. 414 ; Armour r. Mich. Cent. Itr. Co. 65 X. Y. Ill : ( -lai:!!! r. ». - heim, G6X. Y. 303 ; compare Whito:i v. Spring, 74 X. V. 172. 10 Love V. fe. X. L. W. & M. Co. 92 Cal. 6.54 ; Sutton.)-. MunstUld. ;: Conn. 38J; see also Learned v. Johns, 9 Allen 420; in-kcrs »-. 'luwu- send, 24 X. Y. 60; compare Eureka M. Co. v. W. Munuf. C<). 47 Vu 446 ; Everett r. Drew, 12J Mass. 15!. 11 Youghiogheny I. Co. v. Smith, 66 Pa. St. MS ; generallv Everett, V. Drew, 12J Mass. 151 ; Inglehart v. Thousand I. 11. Co. 7'llii:i, 5** ; Cato r. Hutson, 7 Mo. 148. 12 Everett v. Drew, 129 Mass. 151. 13 Whiton v. Spring, 74 X. Y. 171. 14 Smith V. Kellj', 43 Mich. 391. 15 Engels r. Heatly, 5 Cal. 135 ; compare Booker v. Jones. .">"> Ala. 275. 16 Hall V. Crandall, 2D Cal. 571. 17 Hall V. Crandall, 2-) Cal. 571 ; see Hall r. Auburn T. Co. 27 C;U. 257 ; generally Jose v. Moulton, 37 Me. ;367 ; Batchelder v. McKeniiey, 36 Me. .555. IS Hodgson V. Dexter, 1 Cranch, 345 ; Perrv v. Ilvde, 10 Conn. K: ; compare Walker v. Swartwout, 12 John.s. 446. 19 Dwinelle v. Henriques, 1 Cal. 392 ; Gurnee v. Maloney. 3s Cal. .SS. 20 Xat. Gold Bank v. McDonald. 51 Cal. 66; Freeholders of M. Co. r. State Bank, ;f2 X. J. Eq. 4Cyi ; Little v. Derby, 7 Mich. 327. 21 Hall V. Davis, 3 Jones Eq. 414. 22 Little V. Derby, 7 Mich. 327 ; generally Wiggs v. Koontz, 43 Ind. 430 ; Jones v. Beale, 19 Ga. 171. 2:3 Hammelt v. Brown. 60 Ala. 4;).1. g 86. Principal and surety, suits by and against. — When several sureties pay the debt of their principal, auil there is no evidence of a partnership or joint in crest, or of payment from a joint fund, the presumption is that each piud his proportion, and a several action will lie for its recovery from the principal ; ^ but if the debt was paid from their j»>int funds a joint action may be maintained for rcinibursoment.'- The right of a surety to have contribution from his co-suitty is not founded upon any principal of contract, but is the result of natural justice ; '^ the equity of the plaintiflf lies in the iii.-»t)lv- ency of the principal, and that fact should be alleged.* .Ml the sureties who are solvent and are in the State shouM Ik? made parties to the bill.^ If some of tlie sureties have jointly paid the debt they may maintain a joint action for coniribu- g 86 WHO MAY SUE AND BE SUED. 246 tion.''" "When land is sold by a clerk and master, under a decree of a court of equity, and the legal title is retained until the pnrchase money is p lid, if the principal become insolvent before so doing, the sureties have an immediate equity, either before or after paying the money, to subject the land to pay- ment of the debt.' "When a creditor fraudulently aids and assist:* liis debtor in removing from the county, with the intent to hinder and delay the surety in the collection of such sum as he might have to pay for such debtor, a court of equity will cnj(jin such creditor from collecting the debt from the surety.** The summary remedy given by statute to the surety who has paid in whole or in part, the debt of his i^rincipal is cu- mulative only, and does not preclude a common-law action.'* In a proceeding by a surety to compel the assignment of a judgment to himself after he has j^aid it, it is necessary that the principal have notice of the application for the order, and have an opportunity to defend and show cause against it.^" An action may be maintained against a surety alone Avithout join- ing the principal, when by statute the obligation is made joint and several, although at common law the bond would be joint; 11 and in sucli case the surety will not be allowed to bring in the principal, cither by cross-bill or otherwise, for the purpose of having the relation of principal and surety certified as provided by the Code.^- When a building contract is en- tered into by one, and its faithful performance is guaranteed by a third person, a joint action will lie against both for breach of its provisions," Where several sureties signed an official bond, and each surety bound himself severally "for the sum and the sum alone sot respectively opposite their names," a joint action cannot be maintained against them for the amount of the b( nd.i' An action may be maintained against the two sui-vivors of the three makers of a joint bond, if the other maker be dead, and died insolvent, even though the decedent was the principal, and the survivors the sureties.!^ To enable plaintiff to maintain a joint action agidnst the sureties upon two separate bonds, all the defendants should be jointly liable upon each instrument,''' Upon the d-ath of one of two sure- 217 PEDfCrPAL A>T) SURETY. ^ 86 ties to a joint obligation at common law, his estate was di»- cliarged botli at law and in equity, and the survivor alone wm liable. 1' This rule never was a part of the law of Indiana, and in that Stato the estate of the decedent is liable. '« In an actiuu for damages for wrongfully suing out a writ of attacliment, a joint action may be maintained against the principal and Hure- ties, without the fact of the breach of the bond by the princi- pal having been first judcially determined. i" If the bond contain different conditions to perform difiFerent tilings in favor of diffei-ent persons, each obligee has a distinct and sep- arate remedy.^" A surety upon a forthcoming bond in replevin is not released from its obligations by reason of the dLschargo in bankriiptcy of his principal ; 21 so suit will lie against them if the principal is insolvent and a non-resident.-- When the defendant in an action of replevin gives a bond for the return of the property to him, the sureties have such an interest in the action as will enable them to intervene, if the defendant is insolvent, and is defending in bad faith. '■'^ It is only in cases in which the execution of a judgment is enjoined that, on the trial of the injunction, the sureties on the bond are l)y law considered as parties to the suit; in all other cases defendant is left to his action on the bond.^* The death of the princii>al in the bond is no reason for arresting the suit against the surety. ^^ The sux'eties on an administrator's l>ond are not liable to a creditor of the estate for the amount of a judgment obtained by him in an action against the administrator com- menced after the claim was barred by the statute, in which tlie defendant appeared and pleaded the statute, and was after. wards defaulted. 2« In a proceeding in equity to opu the settlement of an administrator on the ground of fraud, the sureties on his bond may be made parties."-' The sureties on an executor's bond cannot be sued iintil after default of the executor iu the probate court. ^'^ When two bonds are given, one when letters are issued, and the other when real estate is about to be sold, and the conditions of each of the bonds are the same, and the burden of the sureties in each is the same, all the sureties on both bonds may be joined as defendants lu g 86 "WHO HAY SUE AND BE SUED. 248 an action upon both bonds. ^^ \Vhcn a guardian is a non-resi- dent and dies insolvent, and no administrator has been ap- pointed, and one of the sureties on his bond also dies insolvent, an action for an account mav be maintained against the sur- viving surety alone. =*" A bill in equity may be maintained against a guardian and the sureties on his bond jointly for an account ; ^^ but the sureties are not liable to a creditor for the non-payment of a note given by the guardian for the board of his ward."*- Sureties on official bonds are only liable for such acts of their principal as relate to their official duty,^^ and are not liable for a defalcation of the principal which occurred prior to the execution of the bond.^* 1 Lombard v. Cobb, 14 Me. 223 ; generally Peabody v. Chapman, 20 N. H. 4-210 ; Cliipman v. Morrill, 20 Cal. i:J5 ; Sevier r. Roddie, 51 Mo. 586 ; Koss v. Allen, 67 111. 317 ; Chandler v. Brainard, 14 Pick. 287 ; Pur- viance r. Sutherland, 2 Ohio St. 481. 2 Enos V. Leach. 18 Hun, 141 ; generally Ross v. Allen, 67 111. 317 ; Pearson v. Parker, 3 N. H. 360; Appleton v. Bascom, 3 Met. 171; Chandlers. Brainard. 14 Pick. 287 ; compare Boggs r. Curtin, 10 Serg. 6 R. 213 ; Prescott v. iS'ewell, 39 Vt. 86 ; Litler v. 'Horsey, 2 Ohio, 211 ; Gould V. Gould, 8 Cowen, 169. 3 Allen v. Wood, 3 Ired. Eq. 388; and see Leary v. Cheshire, 3 Jones Eq. 172. 4 Allen V. Wood, 3 Ired. Eq. 398 ; Raluey v. Yarborough, 2 Ired. Eq. 241). 5 Jones r. Blanton, 6 Ired. Eq. 118. 6 Fletcher v. Jackson, 23 Vt. 533 ; Prescott v. Newell, 39 Vt. 86 ; nr.ghes V. Boone, 81 ^T. C. 205. 7 Egerton r. Alley. 6 Ired. Eq. 18") ; Smith v. Smith, 5 Ired. Eq. 41 ; generally Talbot v. Wilkius, 31 Ark. 421. 8 Smith V. Hays, 1 Jones Eq. 322 ; and see Pipkin v. Bond, 5 Ired. Eq.96. 9 Riley v. Stallworth, 55 Ala. 484. 10 Veach v. Wickersham, 11 Bush, 262. 11 Liverdsfeger v. State, 21 Kan. 476 ; Jenks r. School District, 18 Kan. 356 : and see Wiikins v. Bank, 31 Ohio St. 566. 12 Wilkiiis V. Bank, 31 Ohio St. 566 ; generallv see Smith v. Har- rcll,16La. An. 190. 13 McQuail v. Powers, 46 Ala. 52 ; see WallLs v. Carpenter, 13 Allen, 1!). 14 State V. Powers, 52 Miss. 200 ; Grocers' Bank v. Kingman, 16 Gray, 473 ; Colt v. Learned, 118 Mass. 382. 15 Hall V. Woolloy, 5 ) Ga. 757 ; and see Robinson v. Soule, 56 Miss. S49 ; generally Houghton r. Ledbetter, 37 Tex. 161 ; Parham v. Cobb, 7 La. An. 157. 16 Cook V. Herwitz.lO Hun, 587; and compare Hurlock v. Rein- hardt, 41 Tex. 5S1 ; and see Powell v. Powell, 48 Cal. 236. 249 BAILOE KXD BAILEE. ^ 87 17 Wooi V. Fisk, 63 N. Y. 2+S ; Getty v. Blnse. 4) N. V. :<>t7 : Plrk- ersgill V, Lahens, 15 Wall. 143 ; and see United States v. Price, 9 How. 90. IS Hudloson V. Armstrong, 70 Ind. 101 ; compare Ewlng v. Ferjfu- sou, 33 Gratt. ^3. 19 Tompkins v. Toland, 46 Tex. 589 ; and see Churchill r. Abraham , 22 111. 461 ; generally Buck v. Lewis, 9 Minn. 315. 20 IrLsb )•. Wright, 12 Rob. (La. i 563. 21 Robinson v. Soule, 56 Miss. 5.51. 22 Houghton v. Ledbetter, 37 Tex. 161. 23 Coburn r. Smart, 53 C'al. 743. 24 Scott V. SheriflF, 30 La. An. 5-il. 25 Parham v. Cobb, 7 La. An. 157. 26 Robinson v. Hodge, 117 Mass. 224 ; Curry v. Mack. 90 111. KH ; but see Weber v. Xath, 51 Iowa, :i77 ; Irwin v. Backus, 25 Cal. 21'j. 27 Osborne v. Graham, 30 Ark. 66 ; generally Moreu v. McCown,28 Ark. 96 ; compare Rorbeck v. Dorsheimer, 25 X. J. Eq. 517. 23 Hamlin v. Kinney, 2 Oreg. 91. 23 Powell V. Powell, 4S Cal. 236. 30 Frierson v. Travis, 3d Ala. 165; generally Mooro r. Hood, 9 Rich. Eq. 323. .31 Cudd?back v. Kent, 5 Paige, 95 ; and see Butler v. Durham, 3 Ired. Eq. 5M ; generally Badger r. Daniel. 79 X. C. 37J. 32 McKinnon v. McKinnon, 81 X. C. 202. 33 O-tenstein v. Alpaugh, 9 Xeb. 240 ; Clinton v. XcJson, 2 Utah, 237. 34 Mann r. Yazoo City, 31 Miss. 57v1. ^ 87. Bailor and bailee, suits by ani £gainst.--As a gen- eral rule a person iu the peaceful possession of pvcp.nty may maintain an action for any wrongful tlaaiage it mny sustain against any person but the true owner, and cv.n ajainst him if the p-jsses^rion be rightful and coupled with an interest.* Tlie owner and consignor of goods delivered to a common carrier for transportation may maintain an action for their 1j3^ ;■'' so the consignor named in the bill of lading may main- tain an action for an injury to the goods, although ho has no prop3rty, general or special, therein.^ A bailee of gootls may sue the carrier for delivering to the consignee without payment, that being imposed as tlio condition of di livery.* The remedy against a carrier for loss or damage to goods delivered to him for transportation is not exclusively confined to the consignor; either the consignor with whom the contract was made or the consignee (the owner) may maintain the § 87 ^VHC) MAT SUE AND BE SUED. 250 action.^ The consignee has a right, when goods are consigned Avithout reservation, to sue for their loss by the carrier.*^ Al- though another person may be the owner, the obligation is to deliver to the consignee.^ A carrier is liable as such only when goods are delivered to it for immediate transportation. ^ Its duty is not completed until it has delivered or oflfered to deliver the goods to the consignee, or has given him (if he can l)e found) due notice of their arrival, and furnishing him a reasonable time to take charge of or remove the same.** The corporation and the shipper are not on equal terms, and when money is paid them for excessive charges it is not voluntarily paid, and may be recovered back as for money had and received. ^" An action for an injury to sheep injured while in the possession of lessee during the term of bailment must be maintained by the lessee, ^^ and he may maintain an action to recover the possession as against a stranger and wrong-doer. i"-* A pledge is a bailment of goods by a debtor to his creditor to be kept until the debt is discharged, a special property in them passes to the pledgee, and he may hold them against all iDcrsons having no better right until the debt is paid ; ^"^ if a promissoiy note, and taken before maturity, the pledgee is considered a bona fide holder for value: he has a paramount right of action against the previous parties thereto, and is not afftcted by the equities. 1* He may proceed directly against the pledgor to recover his debt without first soiling the pledge or offering to surrender it.'^ The finder of lost property is entitled to its possession as against all persons but the true owner, and gener- ally the place where the article is found creates no exception to the rule ; ^« but proporty is not lost in the sense of the rule if it is intentionally laid on a table, counter, or other place by the owner, who forgot to take it away, and in such case the owner of the premises is entitled to retain the custody. ^^ An action for movable property is properly brought against the person in possession, and although the plaintiff may sue him in the capacity in which he holds the property, yet he is not obliged to pursue that course. '« When money is delivered to X. for the use of A., or to be paid or delivered to A., the acceptance 251 BAILOR AND BAILEE. g 87 of such money amounts to an express promise from the baiUn- to the bailor to pay or dehvor the money acconhngly, and A. may sue therefor at Uw, particularly if the bailt-e (X.) prom- ises to pay him ; and -without such promise A. mij,'lit sue in equity. 1^ As a i-ub no right of action accnics against a bailee of property unless there has been some wrongful conversion or some loss by negligence on his part until after a demand maS. 2 Ames v. First Div. St. Paul & P. Ry. Co. 12 Minn. 413 : nnd Roe Blumeiithal v. Biaiiierd, liS Vt. 410; Sanford v. Housutonic Hv. Co. II Cush. 155 ; generally Elkins v. Boston & Maine Ky. Co. l:» N. H. ;CB. 3 Blaucharcl v. Page, 8 Grav, 2S1 ; generallv Finn v. Wcstorn Rv. Co. 112 Mass. 52J; Mayall v. Boston & M. Ry."in N. H. 126 : c. A -A. Ry. Co. V. Shea, 66 III. 480 ; Hooper v. Vhir. & y. \V. Ry. Co. 27 Wis. 90 ; but see Thompson i'. Fargo, 63 N. Y. 4S0. 4 Murray v. "Warner, 55 X. IT. 54S ; generallv (U. Westorn Rv. Co. V. McComas. 33 111. 187 ; McGill v. Monette, 37 Ala. .W. 5 Staflford v. ^Valke^, 67 111. 84 ; generallv Gt. Western Rv. Co. r. McComas, 33 111. 186; but see Thompson i-. Fargo, &{ N. Y. i* ; sw also Jones v. Sims, 6 Port. 156. 6 Morgan v. Bell, 4 Mart. (La.) 619 ; Merchants' Disp. Co. v. .Smith. 67 111. 543. 7 Southern Exp. Co. v. Armstead, 50 Ala. 352 ; Mobile * «. Ry. Co. ?'. Williams, 54 Ala. 171 ; generallv Ela r. Merchants' L'nion Exp. Co. 29 Wis. 615; but compare O'Neill v. X. Y. C. ^fe H. R. Ry. Co. «*> X. Y. 142 ; see also Am. E.xp. Co. v. Haggard, ;T7 111. 470. 8 O'Xeill V. X-. Y. Cent. & II. Ry. Co. 60 X. Y. 142. 9 Faulkner v. Hart, 82 X. Y. 416 ; Graves v. U. & X. Y. Steamboat Co. as Conn. 146; Moses v. Boston & Maine Ry. to. »2 N. H. .Vt! : Sleade v. Payne, 14 La. An. 45<; Steamboat .Sultana r. Chapman, 5 Wis. 463 ; but see Rico v. Hart, 118 Mass. 207. 10 Mobile & Montg. Rv. Co. ?-. Steiner. 61 Ala. .■»!« ; generally C. * A. Rj-. Co. V. C. V. & \V. Coal Co. 79 111. 1:50 ; Robln.son r. Er.r.ell. 71 X. C. 233 ; but see Potomac C. Co. v. C. & P. Ry. Co. ;» Md. 'iij : Arnold v. Georgia Ry. & B. Co. 50 Ga. :506. 11 Triscony v. Orr. 40 Cal. 612; generally Beckwith v. Talbot, 2 Colo. 65:) ; Adams v. Childers, 10 Mo. 779. 12 Xoles V. Marable, 50 ALa. 363 ; and see Hunt v. Strew, ."« Mich. JW. 13 Pelt V. Burr, 31 Ark. 35 ; g-'nerallv Chambree v. McKenzie. .11 Ark. 15J; Baldwin v. Canfield. 26 Minn. 45; Welscr r. Smith, 21 La. 2 87 "WHO MAY SUE A>'D BE SUED. 252 All. 156; Sonoma Vallev Bank v. Hill, 13 The Reporter, fiS; compare Starkweather v. Prince, 1 McAr. 144; and see Noles v. Marable, 50 AJiU $56 ; Michigan St. Bank v. Gardner, ;J Gray, 308. 14 Curtis V. Mohr, 18 Wis. 618 ; and see Roberts v. Jacks, 31 Ark. 593. 15 Sonoma Valley Bank v. Hill, 13 The Reporter. 63 ; Sonoma Val- ley Bank v. Hill, 59 Cal. 109; generally Smith v. Stout, 63 Me. 206; Robinson v. Hurley, 11 Iowa, 412. 16 Hamaoher ?'. Blanchard, 00 Pa. St. 370 ; generaliy White i\ Ba.scom, 28 Vt. 271. 17 McAvoy v. Medina, 11 Allen, MO. 18 Warren v. Saltenberer, 6 La. An. 354. 19 Trorlicht r. Weizenecker, 1 Mo. App. 482; generally Graves v. Ticknor, 6 N. H. 539 ; Parker v. Pisher, 39 111. 167 ; Hayes v. Kedzie, 11 Hun, 580. 20 McLain v. Huffman, 30 Ark. 4.32; generally see Pearce t'. Pro- vost, 4 Houst. 467 ; Levi v. Silverstein, 22 La. An. 363 ; Wade v. Carson R. W. Co. 13 Nev. 49. 21 Dale v. Brinkerhoff, 7 Daly, 46. 22 Hayes v. Kedzie, 11 Hun, 530; generally Bates v. Stansell. 19 Mich. 91. 253 PABTXEBS. 7, 89 CHAPTER XIII. PAKTN'EESHIPS, COKPOEATIONS, UNINXOBPOEATED ASSOCIATIONS, ETC. §88. Partners, suits by. 2 SD. Partners, suits against. 2 90. Corporations, suits by. 2 91. Corporations, suits against. 2 92. Unincorporated associations, suits by and against. 2 93. Stockholders, suits by and against. § 88. Partners, suits by. — An unincorporated company cannot sue in the name of the firm,^ but must pnxjeed in the indivi'lual names of its members;"'' if, however, the individual names of the partners are not set out it is a matter of abate- ment only, and if not taken advantage of it is waived.* All the parties composing the firm should be named as plaintiffs, unless they arc dormant partners.* A managing partner can- not sue for all,^ and so all the partners who sue must Ik? < ntitlod to relief, and if not entitled the bill will be dismissed.'' "Wht n the j)ayce of a note delivered it indorsed generally to indtiuiiily a member of a firm as his security, it was held that the maker could not object that a suit was brought upon it in the name of the firm to enforce its payment. ' When a conti-act is made and entered into by one partner alone, but in fact for the firm, although that fact is not disclosed, the firm may sue thereon, pi'oper allegations being made in the complaint.*' An action will lie in favor of co-partners, against one who fraudulently induced plaintiif to give credit to an insolvent, and thereby lo!erson who converted the assets of the firm, before his appointment, he Pakties — 22 2 88 WHO MAY SUE AND BE SUED. 25i must sue in the name of the firm.^i "When goods are sold and afterward are attached as property of the seller, and upon claim made by the vondte an attachment bond is given for his bene- fit, ho is a proper person to sue thereon, although the goods were bought for the benefit of a firm of which he was a mem- ber, and were paid for by them, they being Tindisclosed at the time of the sale, and not mentioned in the bond.^'-^ A sheriff upon a demand against one partner for his private debt cannot seize the goods of the partnership, and exclude Iflie other part- ners from the possession, for such trespass an action Avill lie in favor of the firm against the officer, ^^ An action of assump- sit will not lie by one partner against his co-p irtner, unless their accounts have been settled and a balance struck, it is not 8ufficiei;t that a balance may be deduced from the partnership books. '^ The same rule applies when one partner is a member of two firms, ^^ at law, but not iu equity;'*^ the proper remedy is a suit in equity for an account and settlement.^' One part- ner may, liowever, sue a co-partner upon an express agreement indcpeniiant of partnership accounts, and an action of cove- nant may be maintained by one partner against his co-partner. i*^ One partner cannot sue his co-jiartner for a fraudulent removal of the firm jii-operty, each are entitled to possession ; ^^ but if by expi-ess contract one is entitled to the exclusive possession of a chattel, he may maintain replevin therefor even against his co-partner. ^*^ When one jDartner is excluded by the other from participation in the business of the partnership, it is a ground for injunction, restraining the partner from collecting partnership debts, and for the appointment of a receiver ; ^'^ and go if an insolvent partner attempts to sell all his interest in the partner- ship property to pay his individual debts, it is a breach of the partnership agreement, for which an action lies at the instance of the co-partner. 2^ When all the assets of a firm are conveyed upon its dissolution to one member thereof, he may, upon ex- press promise by the debtor to pay him, maintain an action upon the promise in his own name ; ^^ but in absence of a different agreement, upon the dissolution of a partnership, it is regarded as continuing for a final settlement of its affairs, and each partr 255 PARTXEKS. /, f 8 nei- retains full possession of his former powers.^* At oomin«.:i law upon the dissolution of a partnership by the death of a co-partner, actions on behalf of tlie firm sliould l>e prriw-cutcU in the name of the survivors ; '-^^ the executor could not bo joined; ^^ and upon the death of the surviving payee of a joint note (partnership) his personal representatives may recovor.^ 1 Pollock V. Dunning, 54 111. 117 ; Kamni v. Harker, .1 On'if. 211 ; Smith V. Walker, 6 8. C. 17:i ; see authorities next non-. '2 Bentleyr. Smith, aCaines, 170 ; «-enerallvTomlfnso:i ;•. Rurk'-, 10 X. J. L. 295 ; Kamm v. Harker, 3 Oivg. 211 ;" Pollock ?•. Duiiriiiii.', SI Ind. 113 ; Rob't Brooks Bro. & Co. v. Ilartman, 1 Ilfisk. :\: ; sii,i:h r, Walker, 6 S. C. 173; Moore v. Burnes, 00 Ala. 270; situs r. .1 i".,hs<.i.. 51 Ala. 182; compare Smith r. Oregre:. U Xeb. 215 ; Dixon r. Dixon, I j Iowa, 513 ; Hodges r. Kimball, 49 Iowa, onl. •3 Porter v. Cresson, 10 Serg. & R. 237 ; and see Downer v. Morri- son, 2 Gratt. 255 ; Fowler r. Williams, C>1 Mo. 40:5 ; but .see .Smith r. Crichton, 33 Md. lOG ; Banks v. Bosler, 4 Bibb. 573. 4 Smith V. Crichton. 33 Md. 106; Rugelv B. & Co. »•. (iill. 15 Jju An. 50J ; Wright v. Williamson, 3 X. J. L. 978 ; generallv Am. ( ent. Ry. Co. V. Milas, 52 111. 173 ; Choteau v. Raitt, 20 Ohio, 144'. 5 Brainerd v. Bertram, 5 Abb. X^. C. 103; Halliday v. I>ogffe:t,8 Pick. ;i53 ; Wilson v. Wallace, 8 Serg. & R. 54 ; but' sec Kwhjp r. French, IBlackf. 354 ; compare 111. Cent. Ry. Co. v. Owens, 53 III. .tn. 6 Plant I'. Voegelin, 30 Ala. Ifi2 ; Cockran r. Cunningham, IG Ala. 452 ; generally Dyas v. Dinkgrave, 15 La. An. 50;{. 7 Hutchinson v. Crane, 100 111. 272 ; compare Trott v. Irish, I .Mien, 481. 8 H. R. & E. Ry. Co. r. Walsh, 85 111. 59; generally Lombard r. Johnson, 76 III. 600 ; compare the Ship Potomac, 2 Black, 5s4; I>;iw v. Cross. 1 Black, 5:^6. 9 Ratlin i> Gurney, 17 Mass. 182. 10 Xightmgale v. Scannell, 6 Cal. 509. 11 Yeager v. Wallace, 44 Pa. St. 2W. 12 State ex rel. Pierce v. Merritt, 70 Mo. 2S4 ; generally see Alexan- der V. Jacoby; 23 Ohio St. 383. 13 Sanborn r. Rovce, 15 Chic. L. X. 6 ; generally Garvin f. Puul. 47 X. H. 162 ; Durborrow's Appeal, 84 Pa. St. 405 ; Levy r. Cowan. 27 Ij». A!i. 55'i; Cropper v. Coburn,2 Curt. 4: Dr.'w >■. |\r>..ii. 22 Wis. G54 ; Jessup r. Cook, 6 X. J. L. ( I Halst.> 4X> : but s,,- |)..iii:hiss r. Xeil,37Tex. 546; Paol i-. Perdue, 44 Ga. 4.V ; see also |l.-ek\Mth r. Talbot, 2 Colo. 642 ; Lawrence r. Clark, 9 Dana, 259; Ross c. Cornell. 45 Cal. 136; Wicks v. Lippman, 13 Xev. 501; Adams v. Funk.M III. 220. 15 Corner v. Gilman. 53 Md. 365 ; Pennock »•. Swayne. 6 Watts .t s. 241 ; Morris v. Hlllery, 7 How. (.Miss.) 66 ; Hall r. Logan, M P;u St. 3ai. ^ 89 "^'HO MAY SUE AND BE SUED. 256 10 Ford 1'. Ind. Dist. of Stuart, 46 Iowa, 295 ; Gibson r. Oliio Farina Co. 2 Disn. 602 ; and see Chandler v. Chandler, 4 Pick. 81. 17 Drew v. Person, 22 Wis. 651 ; generally Stone v. Fonse, .". Cal. 204 ; CaiKMi r Barrows, 1 Grav, .«1 ; Bentley v. Harris, 10 II. I. 435 ; Holla- (lav r Klliott, :< Ori'g. :W1 ; Malady r. Malady, 25 La. An. 44!); compare Corner v. Gilnian, 53 Md. 366 ; Neil v. Greenleaf, 26 Ohio St. 570. IS Blunt V. Williams. 27 Ark. 376; generally Glover v. Tuck, 24 Wend l.-)S; ^forrison r. Stockwell, 9 Dana, 172; but see Simrall v. o'lVumdM 7'M()n. 11. (IM); see also Russell ?•. Grimes, 46 Mo. 411 ; Neil r (ircciilcaf, 2(! oliioSt. luO ; Wright r. Michie, 6 Gratt.357; Wills v. .sinunonds, 51 How. I'r. .58 ; Vance v. Blair, IS Ohio, 533. 1!) Robinson v. Gllfillan, 15 Hun, 263 ; generally Miller ?•. Price, 20 Wis. 120. 20 Kahle v. Sneed, 5!) Pa. St. 'iSd. 21 Wolbert r-. Harris, 7 N. J. Eq. 621 ; generally Parkhurst r. Muir, 7 N. J. Eq. 311. 22 Ross ?'. Henderson, 77 N. C. 172, 23 Howell V. Reynolds. 12 Ala. 131 ; see White v. Joues, 14 La. An. G31 ; compare Stevenson v. .Shields, 7 La. 435. 24 (;annett v. Cunningham, 34 Me. 62. 25 Strang v. Hirst, 01 Me. 17 ; generally Beach r. Hayward, 10 Ohio, ACf) ; Suvdam v. Ewing.2Blatchf. 360 ; Perthamboy Manuf. Co. r. Con- di:. 21 N. .1. L. (M: Quillen v. Arnold, 12 Nev. '2-iS ; Manning v. Smith, m; Svv. 87; Shields v. Fuller, 4 Wis. 103; Roys v. Vilas, 18 Wis. 173; Hunt r. Drane, 32 Miss. 244 ; compare Powell v. Hopson, 13 La. An. OJO ; Notrebe v. McKinney, 6 Rob. (La.) 13 ; see also Brown v. A.llen, ;i5Iowa, 311. 20 Strang v. Hirst, 61 Me. 17 ; Roys v. Vilas, 18 Wio. 173; Shields v. Fuller 4 Wi.s. 103 ; see Brown v. Allen, 35 Iowa, 311. 27 Walker v. Galbreath, 3 Head, 316. g 89. Partners, suits against. — As a general rule in actions upon partnership contracts all i^artners (except dormant part- ners) should be made defendants ; ^ but the omission to do so can only be taken advantage of by plea in abatement.^ "When partners are sued jointly the verdict should be against them jointly and not against one only,^ unless some of the defendants make a personal defense, as infancy, lunacy, bankruptcy, etc. ; * but by statute judgment may be rendered against a part of the defendants who alone have been served with pjocess.^ So if three bo sued and it appears that one is not a member of the firm, judgment may be rendered against the others.*' By stat- ute in some States the contracts of co-partners are joint and several, and any one of the partners may be sued for the whole indebtedness ; ' the other partner will, however, upon applica- tion, be allowed to enter an appearance and j)articipate in the defense.'* A suit by or against a company not incorporated by 257 PARTXEES. ^ 89 its firm name, without disclosing the names of its partneni, could not be maintained at common law, but by the provisionH of the Code an action may be maintained against a partiierHhip in its firm name,^ provided it is doing business within tho State ; i" the action may be brought against the co-partnership in its firm name or against tho partners by their individnal names. 11 For a tort arising from the act or negligence of one partner in the course of the partnership business, all the mem- bers of the firm are liable as partners ; ^- but plaintiff may trtat the tort as joint or several, and sue all or any of tho tort feasors.!"* One partner cannot confess a judgment that will bind his partner or tho partnership property unless done in a pending action. i* When a firm is sued upon a note and one of the partners pleads non est factum, the other making no de- fense, the evidence being conclusive that the note was signctl by him, a verdict for defendants is contrary to law,'^ When one partner executes a note in his own name, an action will not lie thereon against the firm even though the money was bor- rowed for the firm, and applied to its purposes.'^ Assuming that a partner can limit his liability for contracts of a copart- ner made in the interest of their common venture, still to be sufifbient it must be brought home to a third persf)n contract- ing on the responsibility of the firm.'' Whtn a bill for an account charges that partners not made parties are not within the jurisdiction of the court, that they have received thtir full share of tho partnership assets, that the defendant has rectivetl much more and the plaintiff" much less, a denuirrc-r for n(»n- joinder will not be sustained ;i8 but as a rule all partntrs should be parties to a suit for an accoimt and settlenu-nt.'" and must embrace all the partnership property.-" Upon the disso- lution of the partnership by the death of a partner, the rmu dy of a creditor for a debt must be pursued against the survivr.r : -' by statutory provisions the survivor and rtprL-seutativos oi \Uo decedent may be joined." When members of a partnership form a new firm they cannot be sued under the new finn name for debts of the old firm, the debts must be recovered in an action against the old firm.^-* ^ 90 M'HO MAY SUE AND BE SUED. 238 1 Smith V. Cooko, 31 :M(1. 179; generally Loney v. Bailoy, 43 :Md. 14 ; Tomlinson v. Spencer, 5 Cul. 293; Douglas v. Chapin, 26 Conn. SO. 2 Smith V. Cooko, 31 Md. 179 ; see Loney v. Bailey, 43 Md. 14 ; gon- orally Hicks v. Branton, 21 Ark. 191 ; Alexander v. M'Ginn, 3 \yatts, 221 ; Cammack v. Jolmson, 2 N. J. Eq. 167. 3 Campbell v. Bowen, 49 Ga. 418 ; compare Felsenthal v. Durand, 86 111. 2:52 ; Tavlor v. Henderson, 17 Serg. & li. 456 ; Miles v. Wann, 27 Miin). 58 ; Mobres v. Bates, 13 L.a. An. 40. 4 Folsenthal v. Durand, 86 III. 232; generally Hammond v. St, John, 4 Verg. 110. 5 Felsonthal v. Durand, 86 111. 232 ; generally Lyons v. Gilmore, 1 How. ( Miss.) 477 ; Moore v. Burns, GO Ala. 270 ; see Newton v. Heaton, 42 Iowa, 597. 6 Miles V. ^Vann, 27 Minn. 53. 7 Keerl r. Bridgers, 10 Smedes & M. G14; Hicks v. Branton, 21 Ark. 191; Kverson v. Ilendric, 22 Iowa, 482; McCulloeh ?'. Judd, 20 Ala. 705; Oldham r. Henderson, 4 Mo. 302; but see Moores v. Bates, 13 La. An. 40 ; Turpery v. Lafitte, 19 La. An. 296. 8 Peek v. Parchan, 52 Iowa, 55. 9 Haskins v. Alcott, 13 Ohio St. 21G ; generally Moore v. Burns, CO Ala. 270; Sims ?". Jacobson, 51 Ala. 187 ; Newlon v. Heaton, 42 Iowa, .597 ; Kcv V. Box, 14 La. An. 497 ; Gilligmott & Co. v. Lake Big Rd. Co. 2 Nev. 224. 10 Haskins v. Alcott, 13 Ohio St. 216; see Key v. Box, 14 La. An. 497 ; Brownson v. Metcalfe, 1 Handy, 189. 11 AVIiitman v. Keith, 18 Ohio St. 14'j; generally Marienthal v. Amburgh. 2 Disn. 587. 12 AVitcher v. Brewer, 49 Ala. 121. 13 White V. Smith, 12 Rich. 600. 14 Richardson 1'. Fuller, 2 Oreg. ISO; generally Grazebrook r. Mc- Creedie, 9 Wend. 439 ; Hart v. Withers, 1 Pa. 280. 15 Ransom v. Loyless, 49 Ga. 471. 16 Farmers' Bank v. Bayliss, 4 Mo. 235. 17 Drumm ?>. Hanna, 25 La. An. 645 ; generally Parshall v. Finhcr, 43 Mich. 5:}1 ; Parker v. Leavens, 5 R. I. 277. 18 Towle V. Pierce, 12 Met. 3^32 ; generally Townsend v. Auger, li Conn. :>56 ; Settembre v. Putnam, 30 Cal. 497. 10 Johnson v. Freer, 51 Ga. 313 ; generally Settembre v. Putna:n, I'D Cal. 497 ; Keough v. Foreman, 33 La. An. 1435. 20 Baird v. Baird, 1 Dev. & B. Fq. 539. 21 OfTutt r. Scott, 47 Ala. 129; Trundle v. Edwards, 4 Sneed. 574; and see Berkey ?•. Judd, 22 Minn. ivOO. 22 Trundle r. Edwards, 4 Sneed, 574 ; Burgovno v. Ohio L. Ins. Co. 6 Ohio St. 5S7. 23 Fagely v. Bellas, 17 Pa. St. 67 ; Hicks v. Wyatt, 23 Ark. 56. § 90. Corporations, suits by. — A corporation created by and doing business witliin a State is deemed to be an inliabitaat of that State, and is capable of being treated as a citizen for all purposes of suing and being sued.^ As a general rule a foreign 259 CORPOBATIONS. ^ 90 corporation ^Yill be permitted to prosecute an action in all cases when the corporators would Ix) permitted to do ho.^ A corporation like a person is recognized in law only by it* name and in its capacity as a corporation, and by its name it nnmt sue and be sued.^ The position of pi-iest seems to be more analogous to that of a sole corporation in England ihan to that of a naked agent, and the power to sue id an inseparable incident to such coii^oration.-' An action can Ix; maintained by a corporation legally existing for an invasion of their rights in real estate in- the same manner as it could be done by an indi- vidual who should be the owner. » The supei-intendents of the poor -are a corporation, and may maintain an action cither in their corporate name or in their individual names, with the addition of their name of office."' "When the name of a cor- poraiion has been changed it may sue in its new name to en- force former contracts, the proper averments being made in the complaint showing the facts.' When there are two statutes in force under which a religious corporation could exist, it will be presumed the corporation can sue in the name adopttd until the matter is put in issue by proper plea for that i)uriK>se.* The fact of the corporate existence or power to sue is nut put in issue by a general denial iu the answei-, but must be raised by demurrer or special denial in the nature of a pk-a in alwite- ment.'-" An action brought by the de facto officers of a corp.ira- tion cannot be defeated by showing that such officers Avcro not legally elected, particularly if there are no other officers claim- ing .to represent the corporation. i" The coqwrate name is a necessary element of the corporation's existence ; a court of equity will not refuse to enjoin the wrongful appropriation of it until the rights to its use have been established at l.iw.«> "When a court of chanceiy found that a corporation plaintiff had no legal existence it properly allowed an amendment ixr- mitting the suit to be continued in the name of tluTC stock- holders, w^ho owned all the stock, as tho real ixu-tics in interest. 12 Two corporations may unite iu an action of as- sumpsit to recover money deposited iu their JL*int names." The right to sue upon a note executed exclusively for tho § 90 WHO MAY SUE AND BE SUED. 2G0 benefit of a bank vests in the bank, and the indorsement of its cashior, to whom as cashier the note is made payable, is not neccssaiy.i* When a corporation to Avhom a subscription runs has incurred obhgations on the faith of the subscription, and complied with its conditions, it may enforce the same by suit.^^ A corporation may maintain a bill of interpleader against two opposing claimants to a dividend due on certain shares of its capital stock originally held in trust for one of them by a third person, who fraudulently transferred them indirectly to the other. 1'' A corporation in the possession of lands may main- tain an action of trespass against a stranger ; ^^ so it may main- tain an action for conspiracy by a portion of its director* and other persons to destroy its business. ^^ When an insurance company has paid a loss sustained by the wrongful acts of a third person, it may maintain an action against the wrong-doer to recover the amount paid, and this Avithout an assignment from the assured of his claim against the person primarily liable. ^^ To a bill in equity by a creditor of a corporation against its officers and stochholders, who have divided its prop- erty among themselves for the purpose of evading its liabilities, the corporation should bo a party. ^" When a receiver has been appointed to wind up the affairs of a corporation by a decree which directs that "he shall prosecute and defend all suits at law that may now be pending, or that may hereafter be insti- tuted, in which said corporation shall be a party"; held, that in a cause of action that arose before his appointment his authority to appear and sue should be made to appear.21 When the legislature extends the life of a corporation for a limited period for the purpose of collecting its debts, and authorizes its trustees to institute actions therefor in its name during such period, and to prosecute the same to final judgment ; held, such actions so commenced might be prosecuted after the time had expired. ^'•^ 1 Louisville Ry. Co. v. Letson, 2 How. 550 ; generallv Marshall v. B. tt (). Kv. Co. 16 How. 325; Shelby v. Hoffman, 7 Ohio St. 453; Society v. Variioy, 'A X. H. 377. 2 Imp. Sz Exp. Co. of Ga. v. Locke, 50 Ala. 333 ; United States v. Ins. Co. 22 Wall. 100 ; generally Lewis v. Bank of Kentucky, 12 Ohio, 261 conpoEATioxs. ^ 90 146 ; Stetson v. Cy. Bk. of New Orleans. 2 Ohio .St. 1T2 : Dinrtf^r O-'t lus. Co. r. Sawyer, 44 Wis. :iS8 ; Williams r. ('resw.-n. v "• Bank uf Krhvardsville v. Simpson, 1 Mo. 1*4 ; Am. Mu:. ' O'.veu, lo Gray, 493 ; Portsmouth L. Co. v. Wat.s<»ii. lo M ciety r. Varney, .54 N. H. -ill ; Southern L. Ins. Co. r. l!i. . . 431 ; see Leasure i'. Union Mat. L. Ins. Co. 91 Pa. .St. ■iJJ, 3 Curtiss V. Murry, 26 Cal. G34 ; Winona & St. P. Rv. Co. r. St. P 53. 6 Van Keuren t- . Johnston, 3 Denlo, 183 ; Alger. r. Miller, .53 Barb. 183;; Alger v. Miller, 56 Barb. 223. 7 Readv v. Mavor & Aldermen, 6 Ala. SS^l ; see Beene v. C. it M. Ey. Co. 3 Ala. 660 ; Dismal S. L. Co. v. Macanlay, 7 Gratt.47i5. 8 Fireman's F. I. Co. r. Con. RodSholom, 8D 111. 531 ; compare Tunstall v. Wormley, 54 Tex. 4S0. 9 Xatl. L. Ins. Co. v. Robinson, 8 Neb. 455; Insurance Co. r. Moore, 55 X. H. 53; Lewis v. Bank of Kentucky. 12 Ohio, 150; see Crump V. U. S. Mining Co. 7 Gratt. 3.53; Railroad Co. r. Sherman, 8 R. I. 564 ; United States v. Ins. Co. 22 Wall. 100. 10 Mech's Natl. Bk. etc. v. Burnet Mfg. Co. .?2 N. J. ' - see United States v. Insurance Co. 22 Wall. IW ; Cliari- Baldwin, 1 3Iet. 363 ; Green v. Cady, 9 Wend. 415 ; Louis;;.. V. Flood, 3 Martin N. S. S42. 11 Nowby V. Oregon Cent. By. Co. 1 Deady, 016. 12 Mining & G. Co. v. Windham Co. Bk. 44 Vt. 407 ; compare Junes V. Watson, G3 Ga. 6o0. 13 N. Y. & S. Canal Co. v. Fulton Bank, 7 Wend. 414. 14 Lacev v. Cent. Nat. Bank of Omaha, 4 Neb. 1S3 ; p.'ii.ndlv Wash. Mut. F. Ins. Co. v. St. Mary's Sem. 52 Mo. 4so ; (;.irl . Revnolds,20Me. 46 ; Warren Academy i'.Sterrett, 15 Ml. 443 : I r. Parks, 10 Me. 442 ; Commercial Bank v. French. 21 Pick. 4-- : nev V. Newcomb, 9 Cush. 50 ; Taunton ».t So. Boston T. «'.». ' . '•' ing, 10 Mass. .3:?1 ; Eastern Rv. Co. ?•. Benedict, 5 (iray. .5 .: ; .\; Mut. F. Ins. Co. r. Young, :« N. H. 45:? ; and see McBroom<' -. ' r;.. of Lebanon, 31 Ind. 26S ; Gilmore v. Pope, 5 Mass. 403 ; Wils..;. ; . Ryan, 7 Marsh. J. J. a50. 15 Fremont F. & B. Co. v. Fuhrman, 8 Neb. 90 : generally Lotital- a:ia Col. i-. KeUer, 10 La. 164 ; D. &. ;M. Plank R. Co. r. Millerd. 3 Mich. 97. 13 Salsburv Mills v. Townsend, lOD Mass. 121 ; generally Sli.aw r. Coster, 8 Paige, 345 ; Atkinson r. Maiiks, 1 Cowen, 70.5. 17 Railroad v. Partlow, 14 Rich. 213 ; First Parish etc. v. Smith, H Pick. m. 13 Talbot V. Scripps, 31 Mich. 260 ; generally Shultz v. Christmas, 8 Mo. App. 3^i:). 19 Swarthout v. Chi. & N. W. Ry. Co. 4:) Wis. 62S ; Hart f. ^^■.-»:- ern Rv. Co. 13 Met. 103 ; Monmouth Co. F. Ins. Co. r. II. Oi < . • ^. 21 N. j". Eq. 115 ; Conn. F. Ins. Co. v. Railroad, 73 N. Y. 3in». 2 91 WHO MAY SUE AND BE SUED. 262 20 Deerfield v. Nims, 110 Muss. 115. 21 Haves v. Brotzman, 43 Md. 52-1 ; and compare Piscataqna F. & M. Ins. Co. V. Hill, 6J Me. 182. 22 Franklin Bank ?'. Cooper. 36 Me. 1!;0 ; generally State ?-. Bank of Washington, 13 Ark. 557 ; Jacques v. Kopman, 6 La. An. 512. g 91. Corporations, suits against. — When a corporation makes a contract in a State otlier than that in which it was chartered, it thereby submits itself to the jurisdiction of such • foreign sovereignty so far as to be liable to a suit therein in regard to that contract, when summoned according to the laws of the State. 1 When the authority to serve process upon a foreign corporation depends upon the fact whether it is doirg business within the district, an established place of business h contemi^lated by the statute, with agents or persons employed to conduct it.'-* Unless jurisdiction is otherwise expressly given by statuts, a foreign corporation can only be sued by an attach- ment of its property.'^ An attachment of an article of trifling value is not within the meaning of the law, there must be a substantial attachment, one from which the creditor may l»ave some chance of benefit.^ Unless exi)ressly authorized by stat- ute, stockholders are not allowed to plead and defend for the corporation when the suit is against it and they are not parties to the record.o A corporation is known in law only by its cor- porate name, and by it it must sue and be sued.^ If a corpora- tion be sued by a name varying only in words and syllables and not in substance from the true name, the misnomer must be pleaded in abatement or it will be waived ; "^ but if the variance bo material the suit cannot be regarded as against the corpora- tion.** When the name of the corporation has been changed in the manner provided by law, but the corporation exists and continues the same general business and differs from the old corporation in name only, an action against the corporation is bi'ought properly against it by its new name, the identity of the corporate body under the two different names being alleged.^ When a change occurs in the officers of a corporation between the time it is sued and the time its answer is filed, the latter officers are the proper persons to vindicate the rights of 233 CORPORATIONS. /; 91 tlie corporation.^0 A corporation is not lialjL- u>l- iiw ;icts of its officers unless done in pursuance of some object enibracetl by its charter, or of some power conferred upon it by law." If tlie injury complained of is one that is no greater to the plaint- iif than to the public at large he cannot recover, the remedy to obtain the redress is with the public. '2 A bill in equity to resh-ain the misappropriation of a fund held by a corporation in trust cannot be maintained against the trustees apixunttd by the corporation to hoi 1 and manage the fund without mak- ing the corporation a party to the bill.'^ An action will not lie by one claiming to be a stockholder, in the first instance, against other stockholders who are recognized as such and liavo received all the dividends, to recover his alleged share; it seems his remedy is against the corporation. ^^ Unless the act of incorporation expressly prescribes the contraiy, the autlior- izsd agents of a corporation may, within the scope of their authority, bind it by simple contracts or contracts under seal ; '* ix" deposits be made in a bank on two separate accounts, a juint action cannot be maintained therefor, even though no olijection is made by the defendant.^'' The holder of a bank check cannot sue the bank for refusing payment, in absence of proof that it was accepted by the bank or charged against the drawer.'* If paid by the bank upon a forged indorsement, it must Ix-ar tho loss and cannot charge the payment to the depositor ; ''^ and so when a bank issues a certificate of deposit payable on its return properly indorsed, it is liable thereon to a bona fide holder to whom it was transferred seven years after issue, even though it had been paid to tho original holder.'*' When materials are furnished the trustees of a church at their request for the pur- pose of building a meeting house, and are so applied, the corporation is liable for the price even though the tnisti-ca supposed the materials furnished as a donation.-"^ A coi-jiora- tion may be sued in any form appropriate to the cause of action ; its liabiliaes do not differ in this respect from those nf an individual. '-^i A corporation can act in no way but by its officers, agents, and servants, and when such persons act within the scope of their employment it is the act of tho corporation, § 91 WHO HAY SUE AND BE SUED. 264 and their negligence is the negligence of the corporation. 22 It is llahlo for torts in the same manner and to the same extent as natural persons ; ^^ but when an injury is committed by an employee wilfully and of his own malice, and not in the cour&e of his employment, the corporation is not liable ; '^^ othei'Avise if acting within the scope of their employment ; ^5 thus a cor- poration may be liable to a suit for a malicious prosecution and false imprisonment. 2^ It is not the province of a court to superintend the cm-rent business of a corporation with a view to measure the degree of industry, skill, and shrewdness to be required of or exercised by its officers ; and as a consequence a court of equity will not interfere to review or correct their proceedings on the ground of fraud or mismanagement unless there is cause for the absolute displacement of the officer com- plained of, or for a final winding up of the affairs of the cor- poration. 2' A railroad company may be liable on proper averments for damages resulting from misleading announce- ments, whereby passengers are led to attempt to board the wrong train ; ^s but when a wrong is founded upon a breach of contract, the plaintiff suing in respect thereof must be a party or privy to the contract, else he fails to show a wrong done to himself as against the defendant. ■^'* "Whenever it is sought to impugn the validity of a corporation that exists under the form of lavr, the remedy is by quo warrarito or remedy in the nature thereof instituted by the attorney-general ; '^^ the proceeding must bo against the corporation itself, and not merely against individuals composing it.^^^ When a corporation is dissolved a pending action is thereby abated unless the action be contniued by order of the court in the manner provided by law.^^ When a corporation has gone into liquidation and closed up its business, leaving its assets and property in the hands of its former directors for three years without any accounting with the stockholders during that time, an action will lie by a stock- holder against the directors individually, charging an abuse and neglect of their trust, and a receiver will be appointed upon an ex parte application.^^ After receivers of an insurance company established by the laws of this State (Massachusetts) ^'••J CORPORATIONS. J 91 have been appointed and injunction issued under the provisions of the statute, neither the corporation nor the receiver can Ix? charged by trustee process. =^' The appointment of a rt-coiver under the national bank act does not absolutely dissolve the corporation ; and an action to establish the claim of a creditor which has been rejected by the receiver may bo maintained. the bank and the receiver being made defendants. ^^ 1 2s at. Cond. Milk Co. v. Branrlenburgh, 40 X. J. L. IV2 ; ppiif rally Williams V. Fire Ins. Co. 2) Me. 407 ; Martin v. Branch Hunk of Ala. 14 La. 417; Baltimore & O. Ry. Co. v. Gallahuc, 12 (iratt. (>•>•> : I'alrucr r. Phoenix Mut. L. Ins. Co. 84 X. Y. G7 ; W. I'. Telegraph Co. v. Pl-jaa- ants, 43 Ala. 6^5 ; see Weight v. L. L. 15 ; and soe Ocean Ins. Co. ?■. Portsmouth Ry. Co. 3 Met. 422; generally Wichston r. Mich. Southern & X'. I. 13 Allen, 40S ; Larkin v. Wilson, 10(5 Mas.;. 12-i ; fcilllo- way V. Columbia Ins. Co. 8 Gray, 203, 4 Barnes r. Mobile A X. W. Ry. Co. 12 Hun, VIZ ; generally .SIllo- way V. Columbia Ins. Co. 8 Graj-, 20-3. 5 Blackman v. Cent. Rj'. & B. Co. 58 Ga. 190. 6 Curtiss V. Murray, 23 Cal. 634 ; and see Campbell i-. linink, 2.> III. 226. 7 Burnham r. Bank, 5 X. H. 443 ; generally Medway Cotton Mii-.uif. Co. V. Adams, 10 Mass. 362 ; Bnllard r. Xantucket Bank. 5 Mass. 100 ; Wilson i\ Baker, 52 Iowa, 427 ; Lafayette Ins. Co. r. Frsncli, 13 How. 403 ; Short v. Raub, 81 111. 510. 8 Bank of Utica r. Smalley. 2 Cowen, 730 ; Burnham v. Bank, ^ X. II. 443 ; compare Lafayette Ins. Co. v. French. 13 How. 4(h : ait'l R-oo Proprs. of Sunapee v. Eastman, 32 X. II. 4?2 ; Western U. Tel. Co. V. nyser, 2 Colo. 155 ; King v. Rand let t, 33 Cal. 320. 9 Gould V. Sub. Dist. Xo. 3 etc. 7 Minn. 2D ; generally Morris v. St. Paul & Chic. Ry. Co. 19 Minn. 5.33 ; Deane v. La Mott? Lead Co. .>:• Mo. .523 ; Eaton «fe H. Ry. Co. v. Hunt, 20 Ind. 4G1 ; Banksdalj v. Finney, 14 Gratt. 3.33. 13 Mechanics' Xat. Bank v. Burnet Manuf. Co. 32 X. J. Eq. 2:«. 11 Ricord v. C. P. Ry. Co. 15 Xev. 176. 12 Cum. Valley Ry. Appeal, 62 Pa. St. 227 ; Eigelow v. Hartford r;:i;lg3 Co. 14 Conn. 573. 13 Tibballs v. Bidwell, 1 Gray. 393. 14 Peckhani v. Van Wagenen, S^i X. Y. 43. 15 McCullough V. Talladega Ins. Co. 43 Ala. .'TTS: generally Com. Mut. M. Ir.s. Co. V. Unioii M. Ins. Co. 19 How. .318 ; Bank of Columbia V. Patterson, 7 Cranch, :Xt2. 16 Ellisou V. Xew Bedford Sav. Bank, i:» Mass. 4?. 17 Bank of the Republic r. Millard 10 Wall. l.V> ; Carr f. XaL S?curitv Bank. 107 Mass. 4S ; Loyd v. McCRffroy, 46 Pit .^t. 414 ; i'irsl X'at. Bank of Wash. r. Whitman, 04 U. S. *i3. Parties — 23 g 03 \7no 3:ay sue axd be sued. 266 ir. Thompson v. Bank of B. Xo. America, S2 N. Y. 8 ; First Xat. r.unk of Wash. v. Whitman, 94 U. S. S4ii. 10 :,'at. Bank etc. v. Wash. Co. Is at. Banlc, 5 TTun, GOo. 20 T::I1 7-. Trnstees ct?. To X. C. 427 ; goncriilly Pepper r. Harris, 73 N. C. 7:5 ; and see East Lun. Asy. v. Garrett, 27 Gratt. 174. 21 Winslow V. Commrs. G4 N. C. 819. 22 Hopkins v. Atlantic & St. L. Ry. .36 N. H. 17 ; generally Chase V. Am. steamboat Co. 10 R. I. 86 ; Gould v. Sub. Ltist. No. 3 etc. 7 3Ii;Hi. 20 1 : st'i' S. R. d- D. Rv. Co. r. Webb, 49 Ala. 241 ; Kline v. C. P. Rv. Co. -47 C. 1. 40:^ ; Kain v. Smith, 80 N. Y. 467 ; United Society of Shakers v. Underwood, 9 Bush, 614 ; Smith v. Poor, 40 Me. 421. 23 Y.'. U. Tol. Co. V. Eyser, 2 Colo. 161 ; Hopkins v. Railroad Co. S6 N. II. 17 ; Miller v. B. & M. Rv. Co. 8 :Xeb. 22;] ; Chappell v. S. & N. Ala. Ry. Co. 61 Ala. 529 ; Railroad Co. v. Keary, 3 Ohio St. 204. 24 Miller V. B. & M. Ry. Co. 8 Keb. 223 ; compare Brokaw v. X. J. R. & T. Co. S2 X. J. L. 331 ; X. O. J. & G. N. Ry. Co. v. Plarrison, 48 Miss. 113. 25 Brokaw v. X. J. R. & T. Co. 32 X. J. L. 321 ; Kline v. C. P. Ry. Co. 37 Cal. 403. 26 Carter v. Howe M. Co. 51 Md. 292 ; generally Goodspeed v. E. Haddam Bank, 22 Conn. 5:^ ; P. W. & B. Ry. Co. ?-. Qnigley, 21 How. 202 ; Yance v. Erie Ry. Co. 32 X. J. L. 334 ; but see Owsley v. ^Y. P. "Ry. Co. 37 Ala. .562. 27 Hedges v. Paquett, 3 Oreg. SO ; and see Smith v. Poor, 40 Me. 421. 23 Flint & P. 21. Ry. Co. v. Stark, 38 Mich. 710. 23 Railroad Co. r. Railroad Co. 9 S. C. 328. 30 Xat. Docks II v. Co. v. Cent. Ry. Co. o2 X. J. Eq. 733 ; State v. R. & 11. T. C0.211;. J.'L. 10. 31 State V. Taylor, 2o Ohio St. 2S2. 32 McCullongh v. Xorwood, r)S X. Y. ."P.n ; Sturges v. Vanderbilt, 73 X. Y. :;^. 33 V/arren v. Fake, 49 How. Pr. 4.''.0. 'M Columbian B. Co. ?'. De GolVv^r, 11.">Mass. 6D ; and soe Common w. V. ir. & L. Ins. Co. no Mass. 156. " 35 Pahquioque Bank v. Bethel Bank, 36 Conn. ^3 ; Banlc of Bethel V. Pahqr.ioquo Bank, 14 Y.'all. .383 ; Green r. Walkill Xat. Bank, 7 Hun, 63. § 92. TJnincorporatad associations, suits by and against. — No association of persons can appear in court as a corporation, unless organized'as such in the manner provided by law; until so organized it must sue in the individual name of its members ; ^ but if the members arc very numerous a portion of them having a common interest may sue (in equity) on behalf of themselves, and others having a like interest as part of the same society, for purposes common to all, and beneficial to all. 2 "When the arti- cles of the association provide that all the property of the com- pany shall be vested in trustees thereafer to bs elected, and 267 STOCKHOLDERS. g 93 that subscribers should pay to such trustees the amount of tutir :;fspective subscriptions, it was held that the amount cunld bo r^overcdin a suit brought i:i the names of the trustees so elected.^ If one member pay the whole of a dobt contracted for a common purpose, he may sue each of the others for Lij aliquot share of the debt ; if some arc insolvent he may proceed in equity to compel each to pay their just proportion.* Plaint- IfEi associated themselves together as the "Daubury Comet Band "; they adopted and subscribed a by-law providing " that if any member shall leave the band, he liavcs all his iatereitwith the band;" defendant voluntarily left the association, taking with him his instrument which he refused to surrender upon demand, held he was liable in trover.^ When pending a suit ly unincorporateel association, it becomes incorporated under a elifferent name ; an amendment substituting the corporate name will not be allowed.*^ An unincorporated association should not bo sued by its name ; if its members are liable they stand 03 other joint promisors or partners.^ 1 The W. A. Bank v. Converse, 2D La. An. 3C3 ; pcnorally Lollor r. Monton, 3 La. An. .541 ; ilcKenzie v. Bd. of School Trs. ri liul. luS: Mears v. Moulton, 30 Md. 145 : Jones v. Watson, M (Jii. Rso ; romparo Tibbetts v. Blood, 21 Barb. 6.>4 ; Trustees M. E. Church r. -Vdanis. -I Oreg. 76 ; Chickerming Lodge No. 55 I. O. O. F. v. McDoiiuld. 16 WK 112 ; and see Tumstall v. Wormley, 54 Tex. 4% ; Night iiijrali" r. Bar- nev. 4 G. Greene ICK) ; Marsh v. Astorix Lodge eto. 27 111. 424 ; McCou- neh f. Gardner, Morris, 272 ; Cross v. Jack.son, 5 Hill, 47n. 2 Beatty v. Kurtz, 2 Peters, 5^4 ; Tumstall v. Wormloy, .M Tcjt. 4S1 ; Birmingham v. Gullagh-^r, 112 Mass. r'2 ; Snow r. Whi'oU'r. 113 Mass. 1S4 ; Mann r. Butler, 2 Barb. Ch. 367 ; sco Alhird r. Orleaua Nav. Co. 14 La. (O. S.) 23, 3 Cross V. Jackson, 5 Hill, 479 : see Warren v. Steurus, 10 Wck. 77 ; ganeraiiv see Poits v. Kamp, 12 Rob. (La. i G4G. 4 Parker v. Ellis, 2 Sandf. 225. 5 Band v. Bean, ^1 N. H. 525 ; and see Morley r. French, 2 C"u»b. 132. INIarsh R. Lodge v. Sup's of Brooks, (U Me. 5.S6. 7 Peacock r. Usry, .52 Ga. 35! ; see Holt v. Blake, l' X.^ r, .mUx 511. 15 Sonoma Val. Bank r. Hill, 13 The Reporter, 6S ; but »t*e Pj;"«'r- allv CfUbert v. S. I. Coal & I. Co. 62 Ind. 522 ; St. Lake City Natl. Ifcuik r. ilendrickson, 40 X. J. L. 54. g 94 JOIXDER OF P.UITIES. 270 CHAPTER Xr\'. OF THE JOINDER OF PARTIES. § 04. Who may bo joined as plaintififs in actions upon contracts at law. ? Co. Same, in actions for torts. 'i !;6. Same, in snits in equitj'. § 97. \Vho may bo joined as defendants in actions upon contract I 08. Same, in actions for torts. 'i 09. Same, in suits in equity. 5 94. Who may be joined as plaintiffs in actions upon contracts at law. — When a contract is made with several jointly all must unite in an action to recover upon it.^ Several p:rsons having a joint interest in the subject-matter of the suit may and ought to join.^ It is not necessary to allege or prove that plaintiffs are partners, it is sufficient to show that the con- tract, the subject-matter of the action, was made with them jointly.^ When an express contract (covenant) is made to two or more to do an act, though for the benefit of one of them only, all the obligees may units in an action thereon ; * and so a joint action may be maintained upon a written contract made to two, although one had parted with bis interest therein to the other before it was signed.^* When a person answerable to two jointly upon a contract settles with one of them so that he has no longer an interest in the matter in dispute, it is a severance of the cause of action, and the elebtor is liable to the other in an action brought by him alone.'' The right of a sur- vivor of a joint contract to sue alone is not limiteel to cases of partnership, but generally when one of several persons inter- ested in a joint contract dies the action must be maintained by the survivor.' When a contract is made by a person to do cer- tain work, and he does it jointly with another, he may still maintain an action upon his agreement.** A person should not be made a co-plaintiff who has not, as the j^leadings stand, any 2(1 JOrN-DER OF PAUTIES. % 94 unity of interest witli those already plaintiffs;** bnt if tlio con- tract was made witli two, both should sue thereon even though the work was done tr one.'" When plaintiffs sno jointly proof of a liability from the defendant to one plaintiff al-)ne will n'4 support the action ;ii and so plaintiffs who have separate and distinct causes of action cannot unite in an action a^'ainst tlio same defendant.^- Where lands descend to co-parcentrs witli warranty, and they are evicted before severance, one of \\vrr\ cannot sue on the vrarranty for his share of tlic dn:: When the legal interest in a covenant and in the cause <: , thereon is joint the covenant is joint, akhougli it may i:i iu terras be several or joint and several ; !• but if tljc interest be several, though the words of the covenant be jcint, tise action must be several.'^ When a contract has been entered into with tw ) jointly, both should unite in an action to recover damages for its breach. i*^ 1 Marj's f. Anderson, 24 Pa. S!;.-272 ; ffcn?rally Ai:s- 3Ias3. 4J5 ; Peters r. Davis, 7 3Iass. 257 ; ("iapp c. Ri ■ . Haclsell v. Inhts. of Haucock, 8 Gray. .5 .'0 : Harris '•. s .. . :M) ; Woaro r. Burge, 10 Ired. 171 ; Davis ?■. Wi-inamukcr. . ■ :;■. ..£» : Willoiighby v. Willoughby, f. N. H. 24o ; Wright v. McLemorc, 10 (Yerg. 2:i.5. 2 Wright?'. Post, 3 Conn. 144 ;HadselIr.Inht<5. of H:u ' "■ o-O ; Clapp V. Ric?, 15 Gray. 559 ; ar.d soo Arch;r v. Di:- S. ;]59 ; Michenor v. Dale, 23 Pa. St. G2 ; Dav r. Swa:;. i:: ' ott V. Cor::forth, 3 Me. 103 ; Ross v. Allen,' fi7 III. 3is ; c. ;.., , V. Marshall, 5 Ala. &^2 ; and see Doremus v. Sjldeii, I'j J^.ii:;s. J;4 ; Hill r. Gibbs. 5 Hill, 5S ; Lyon v. Bertram. 20 How. l.V>. 3 Wood r. Fithian, 24 X. J. L. 34 ; Beller r. Block, 19 Ark. .Vw : compare McXairy v. Thompson, 1 Sneed. 14S. 4 Bird v. ^Vashburn, 10 Pick. 226 ; Diehl v. Gilpin. 8 Phil.x 15 : .-.nd generally Collinghara v. Owens, 71 111. '^i \ Robbins ?•. v \ r ^ in M,. .53'.); Mf'Mahon v. Webb, .52 Miss. 425 ; Masterson v. V\ •X>ti : All!!:g V. Woo ro.SSIIl. c05 ; MoCotter r. Lawrence, 4 Hun, lOD ; MrXairy ■ son, 1 Snoed, 14S ; compare Browner v. Davis, 15 C.il. II ; P: Purkett, 13 Cal. 590 ; see also Blanchard r. Dyer, 21 Me. HI : ! Lasater, 3 Ark. .5f>S. 5 Brewer v. Stone, 11 Gray. 231 ; and see Harvey v. Myer, a Iiid. 393 ; compare Watertown r. White, 13 Mass. 478. G B. & M. Rv. V. Portland Rv. 110 Mass. 4i)0 ; generally Ri : r. Parker. 12 Met. 52 ; see Henrv v. Mt. Plea.s. Township, 7i> M same effect, Stedman v. Shelton, 1 Ala. 8" ; Beac-h r. Ht>t' fon!i. cm. 7 Smith V. Salomon. 1 Colo. 177 : Peters v. Davis, 7 Ma.ss. 257 : ffen- erallv Ehle ?•. Pnrdv, 6 Wend. (v?0 ; VundeuUeuvcl r. Storrs, 3 Coun. 207 : Douuell v. 3Ianson, 103 Mass. 579. g 95 JOIXDEK OF PABTIES. 272 S Blakeney v. Evans, 2 Cranch, 184 ; compare Martin ?•. ]Nrartin, 3 Chand. ::0o ; Jewett v. Weston, 11 Me. ;U'< ; and see Homer r. Kilborn, l.i Mass. 13,3 ; Humphreys v. Magee, 13 Mo. 436. n Frear v. Bryan, 12 Ind. 344 ; and see Ford v. Bronaugh, 11 Mon. B. 15. 10 Martin v. Martin, 3 Chand. 305 ; Jewett v. Weston, H Me. 348 ; generally Wells v. Gaty, 9 Mo. 56.5. 11 Strickland v. Burns, 14 Ala. 513. r^ Bort V. Yaw, 40 Iowa, .324 ; generally Tate r. O. & M. Ry. Co. 10 Ind. 174 ; Homer v. Kilborn, 15 Mass. 133 ; Tennant v. Pflster, 51 Cal. 513 ; and see Farmer ?•. Stewart, 2 X. H. 9'J ; Ind. School Dists. v. Ind. School Dist. 50 Iowa, »24 ; The Governor v. Webb, 12 Ga. 190. 13 Tapscott V. Williams, 10 Ohio, 444 ; generally Lawrence v. Mont- gomery, ST Ala. 189. 14 Capen v. Barrows, 1 Gray, 379 ; Trustees of Perry ville v. Letcher, 1 Mon. 14. 15 Trustees of Perrvville v. Letcher, 1 Mon. 14 ; generally Emery V. Hitchcock, 12 Wend. 158 ; Sims v. Harris, 8 Mon. B. 55 ; Pickering r. De Rochemont. 45 N. H. 77. 16 Rainev v. Smizer. 2S Mo. 311 ; M'Gilvery v. Moorliead, 3 Cal. 270 ; Moody V. Sew^all, 14 Me. 297. I 95. Who may be joined as plaintiffs in actions for torts. — All the parties in interest sbonld join in an action of trover. ^ Objection to the failiii-c to join sshoiild be taken advantage of by plea in abatement; if not so taken advantage of the other part owners may sue alone. ^ When the defect does not appear upon the face of the complaint it may be taken advantage of by answer or by apportionment of damages at the trial. ^ Where two vessels are under contract of mateship there is no such joint property in a whale taken by one of them as require the owners of both to join in an action for its tortious conversion.-* When the legal interest in a cause of action, whether it arises out of contract or tort, is joint, residing in several persons, all who are living must join in an action upon it;^ but the pen- alties imposed by statute for usury is not necessarily a joint and common right to all borrowers ; so where a usurious con- tract is made with three, a separate action to. recover the penalty may be maintained by one.*" When there arc several joint owners of a chattle all should join in trespass for its injury.' When plaintifis sue out a writ which is returned non est inventus they may maintain a joint action for a false return.^ Where the owner of property and several insurers have rights 273 JonroEB of parties. \ 95 of action for different portions of the value, all arihin- f.ut of the same wrongful act, they may join in a single action agiiuht the wrong-doer.'^ When A. has the legal title to land of wliich B. is in possession under contract entitling him to a deed \\\)oxi full performance, etc., they may unite in bringing an action under the statute against one who flows the land 1 y moans of a mill dam, and the court has power to apportion the damagte-.'" When several persons have separate and distinct tracts of land which are injured and made less valuable by reasons of obstnic- tions in a natural watercourse, as by ditches, dams, etc., which cause overflow and amount to a common injury to all, they may as parties having a common interest join in a suit to restrain defendant from maintaining such nuisance." A joint action for slander cannot be maintained ; if the same slanderous words are spoken of several persons at the same time they fur- nish each ground for a separate action, but there being no community of interest, they cannot sue together.'- In case of a joint bailment of property all the joint owners must unite in an action for its recovery. '-^ '■ 1 Whitnev v. Stark, 8 Cal. 516 ; generally St. Louis Ry. Co. v. Lin- der, .39 111. 4:^4 ; see Brizendine r. Frankfort B. Co. 2 Men. B. :« ; Pick- ering r. Pickering, 11 X. H. 14.3. 2 Whitnev v. Stark, 8 Cal. 516 ; generally Plckenng v. Pickering, 11 X. H. 143 ; Bowman v. Gove, 11 X. H. 266. 3 Whitnev v. Stark, 8 Cal. 516 ; generally Rich v. PenfieUl. 1 AVend. SSO ; St. Louis Rv. Co. r. Linder, 39 111. 434 ; Weare c Biirge, 10 Ired. 170 ; compare Brizandine v. Frankfort B. Co. 2 Mnn. B. :«. 4 Taber v. Jenny, 1 Sprague, 31.5. 5 Harris v. Swanson, 62 Ala. 300; generally Tracy v. Bowen, .1 X'. J. L. 964 ; Columbia D. B. Co. v. Geisse, :« X. J. L. 40 ; Pickering r. Pickering, 11 X. H. 144. . 6 Phillips V. Bevans, 23 X. J. L. .374. 7 Pickering v. Pickering, 11 X. H. 144 ; generally Rus.sell r. ."^ux-k- ing. 8 Conn. 241 ; Burton v. Winsor U. S. M. Co. 2 I t ■''. -i!: -•• Giov-auni v. First Xational Bank. 51 Ala. 177. * 8 Houser V. Hampton, 7 Ired. .3:^. • 9 Swarthout v. Chi. & X. W. Ry. Co. 49 Wis. 628 ; I'ra:; y. t>a.i- ford,52 Wis. 118. 10 Sevmour v. Carpenter, 51 Wis. 414 ; and see Schiffv-r r. Kau Claire. .5'l Wis. 388 ; but see Palmer v. Waddell, 22 Kan. :tt7 ; seo also Schuylkill X'av. Co. r. Farr, 4 Watts & S. 370. 11 Palmer r. Waddell. 22 Kan. .%57 ; generally Barneys i-. RaoJne.4 AVis. 46.^ ; Gillespie >-. Forrest, is Hun. Ill ; Blunt r. Hay. 4 Sand. I n. 364 ; Peck v. Elder, 3 Sand. 131 ; Cadigau v. Brown, 120 Mass. •!'« ; see Tate r- O. &. 31. Ry. Co. 10 Ind. 174. g 96 JOINDEK OF PARTIES. 274; 12 Hinkle v. Davenport, 38 Iowa, 358. 13 Stachcly v. Pic^rce, 28 Tex. 335 ; ami see Dm-fee v. Grinnell, fiO 111. 372. § 96. Who may be joined as plaintiffs in suits in eq uity. — Parties having no common interest in the subject-matter of controversy, but asserting several and distinct rights, cannot unite and seek redress in a joint suit, though their several rights ai-e against the same person. ^ It is not a valid objection, however, that parties claiming different interests have asserted them in the same suit ; - but parties whose interests depend upon the same right, and who would be alike affected by the judgment may properly be joined ; -^ so if substantial ground of complaint exists in common to two persons, and where if suit were brought by one the other would have to be made a defend- ant, they may be allowed to join as plaintiffs, although their titles and in some respects their rights arc not joint.* The general rule is that unconnected joarties maj- join in bringing a bill in equity, where there is one connected interest among them all, centering in the point in issue in the cause. ^ When judgment creditors have acquired liens upon the property of their debtor which entitle them to similar relief against an act of the defendant which is a common injury to both, and pre- vents them from enforcing their liens, they may join in a bill to obtain such relief.*' The payee of a note secured by a mort- gage, and the assignee of a paid interest therein must join in a suit to foreclose the security.'^ If the mortgage be given to secure several notes to different persons it may be regarded as a several security by each;^ but there can be no objection to a joint suit by the several holders of the notes." Material men and mechanics who are entitled to a lien on a building, but whose claims are several without any community of interest in the claims themselves, may under the statute join in an equitable action to enforce and establish their liens. i" A. pur- chased land of X. for a certain sum, and paid part of the purchase price, giving a note secured by a mortgage executed by A. and C; upon discovery of fraud in the sale and before transfer of the note, A. and C. were allowed to join in an action 275 . JOIXDER OF PARTIES. 2 90 to obtain a decree for the cancellation of t'.ie note and mort- gage upon tlie ground of false and fraudulc-nt rcprestntationa by the seller. ^^ "When one of two joint makers of a not" given for the purchase price of land promises a third perst n tliat ho will pay it if the latter purcha-es it, and the latter taki-s the note upon the faith of the promise, yet the former may join with hi-s co-maker in a bill for the recision of the contract of sale, no relief being asked by him against the holder cf t!jo note.'- Separate pni-chasers of different parcels of the same lot cannot join in a bill against the former owner to restrain the prosecution of separate ejectment suits brouglit by him against them ; '^ so where property is owned by several p* i-sons, each owning a separate part by title derived from (li.Terent J^Dersons, they cannot join in a bill to enjoin an execnfion sale •of the property.'* A suit may be maintained by the tax i)ayers |jf a district to set aside and annul an unauthorized contract entered into by the district board ; '^ but the mere saving of expense of separate suits at law is not a sufficient reason for " uniting in a bill in chanceiy to obtain an injunction against the doing of an act which would give to each of the plaintiffs a right of action at law.'^ The obligors in a contract for the sale )0f real estate, under which the obligee has taken possession, although the consideration has not been fully paid, have such an interest in the realty as will entitle them to unite in a suit to set aside a tax deed.'^ 1 Hendrickson v. Wallace, SI N. J. Eq. C,(\.-y ; Uoyhold >•. i l , r.iman. 2 Dc4. Cli. M ; State and State Bk. ex parte. 1'. Ark. "JiM : P.nsdiis ;•. Lvrnan, 4Blatchf. 433 ; Struppman ?■. MulK-r. ."2 How. I'r. "Jl''. ; I'luiii ?•." Morris C. & B. Co. 10 X. J. Eq. 2.>^ ; Farrot )•. Parish of K. IhiUf.i Rouge, 30 La. An. 006 ; Taylor v. King, 32 Midi. 42 ; Baker v. Rluc- hard, 11 \V. Va. 249. 2 Faulk r. Faulk, 23 Tex. 06.3. 3 Catlin v. Wheeler, 40 Wis. 51.0 ; generally Porter r. Cloments, S Ark. :m ; Creed v. Lancaster Bank, 1 Ohio St. 0. 4 Bardwell v. Ames, 22 Pick. ?-53 ; and see Taylor i*. King, C Mich. 42. .5 Owen v. Frink, 24 Cal. 177 ; see Farrot ;•. Parish of E. Baton Rouge, 30 La. An. 607 ; Plum ?•. Morris Canal & B. Co. 10 X. J. Fkj. 250 : North v. Bradwav, Minn. 180 ; .Smitli v. Srhultinir, 14 Hun. .-1 ; Middleton ?•. Flat River B. Co. 27 Mich. cM ; coniparo Armstrong r. Treasurer, 10 Ohio, 236. J Clarksonr. De Peyster, 3 Paigo, 321 ; generally Rnnn.^- '■ l"-- §97 JOINDER OF PARTIES. ton. 12 Ind. 2(13; North ?•. Bradwaj', Minn. 185; Gates v. Boomer, 17 Wis. •J-tM; Elfelt r. Ilinch, 5 Orej?. 2.>5; Kennedy v. Kennedy, 2 Ala. 024; Love r. Getsinger, 7 N. J. Kq. 202; compare Hagerty v. Xixon, 26 N. J. Eq. 42 ; see Brown v. Bates, 10 Ala. 4:;r.. 7 Stevens v. Campbell, 13 Wis. o76; and see Plowman v. Riddle, 14 Ala. 171 ; Upjohn v. Ewing. 2 Ohio 81. 20. ft Tvler ?'. Yreka Water Co. 14 Cal. 217 ; Thayer v. Campbell, Mo. 270; Burnett ?-. Pratt, 22 IMck. ,5.57. 9 Pogue V. Clark, 2.5 111. .352 ; but see Swenson v. Plow Co. 14 Kan. 388. 10 Barber v. Reynolds, 33 Cal. 502. 11 Bowman r. Germy, 23 Kan. .309. 12 Lanier v. Hill, 25 Ala. 558. 13 Wood V. Perry, 1 Barb. 120. 14 Baker v. Rinehard, 11 W. Va. 240; but see Johnson v. Drum- mond, 20 Gratt. 428. 15 Peck V. School Dist. 21 Wis. 522. 16 Sheldon v. Centre School Dist. 25 Conn. 228. 17 Watson v. Phelps, 40 Iowa, 483. I 97. Who may be joined as defendants in actions upon contracts. — When a coutract is made on behalf of a person who contracts for himself and others, and this is known to the other contracting party, the former cannot be sued alone for a breach of the contract ;i if two are sued jointly the plaintiff must establish a joint liability,- or there can be no recovery.^ When it appears from a judgment record from another State, that in a joint suit against two defendants a judgment was rendered at different times for the same amount against each defendant, but for the breach of a joint promise, a joint action against such defendants on the record will be sustained.' When X. had agreed in writing to pay tlie debt of another, and Y. in a postscript subscribed by him, added, " I will be account- able with X. according to the above writing," an action will lie against both as joint con tractors. ^ Two persons cannot be joined in an action r.G defendants where a recovery is sought against one alone upon a written contract, and against both upon an oral agreement.'' In an action against the parties to a joint contract all the obligors must be made defendants," unless some arc discharged in bankruptcy,^ or the debt is barred as to some by the Statute of Limitations ; '-' and so if one die the action may be brought against the survivors alone,^" or (Code) 2T^ JOINDER OF PARTTES. / 97 jointly with the executor of the decedent." All persona au- thorized by law to be joined as defendants are joint defendant* within the meaning of that term as used in the Btatute.'-' Upon a joint and several liabilify plaintiff may proceed aj,'ainsi one or all as he may elect ; if he elect to sue all ho must pro- ceed against them jointly, ^^ but at common law the contract could not be treated as a joint demand of more than one, and less than all the debtors. ^^ This rule has been changed by statute in many States, so that now in those States all, or cue. or any intermediate number of the co-contractors may Ix; sucil upon the contract. ^^ A judgment for or against one of the several makers of a joint obligation is a bar to an action after- ward brought against another;'*^ the rule is otherwise if the obligation is joint and several ; " but if plaintiff recovers judg- ment against one, liable upon a joint and several contract, he cannot subsequently proceed jointly against the remaining obligors, the first action amounts to a severance of the con- tract.'** In Mississippi in actions upon promissory notes and bills of exchang?, all the parties liable therein, residing ni thi- State, must be made defendants. '^ The Code in Ohio Kavis it optional with plaintiff to join such persons in the action ; ^ all or any of them may be joined ; '^^ and in a joint action against twv, both of whom have been served with process, the plaintiff may by leave of court dismiss as to one and proceed to judgimnt against the other ; such judgment remaining in force will not be a bar to a subsequent suit on the note against the other.-- At common law a joint action could only be brought to enforct a joint liability; this principle has been greatly modiiit'*! l-y legislation so that now in many States the guarantor of a note- may be jointly sued with the other parties thereon, "•" so tin maker and indorser may be sued jointly,-' and i laintitT niny dismiss as to the indorsers and take judgment against tin makers ; ^^ so if the record does not show that the maker is a resident of the State, the action may be dismissed as to him and judgment may be taken against the indorsers.-"^ "Wlicn a joir.t action against all the obligors of a bond is the only rt-uutly thercon, it is error to render a several judgmeut^as tj one. U av- Parties — 24 g 97 JOINDER OF PARTIES. 278 ing the action to proceed against the others; 2" but when a several judgment is proper it may in the discretion of the court be talien against one or more, leaving the action to proceed against the others ; on such final trial a judgment may be ren- dered against the remaining defendants for the whole or such part of the cause of action as may be proved against them.^s In Louisiana one joint obligor may be sued separately and judgment be rendered against each for his proportion of the debt, without the co-obligor being a party to the suit.'^^ When there is a joint and several liability judgment may be rendered against those over whom the court acquires jurisdiction.™ 1 Stover V. Metzgar, 1 Watts & S. 2fiD ; generally McArtliur r. Ladd, 5 Ohio, 518 ; see AUin v. Shadburne, 1 Dana, 68. 2 Griffin v. Simpson, 45 X. H. 20 ; Manahan v. Gibbons, 10 Johns. Ill ; Birkbeck v. Tucker, 2 Hall, 120 ; Plainer r. Johnson, 3 Hill. 477 ; generally Florence S. M. Co. v. G. & B. S. M. Co. 110 Mass. 83. 3 Kowan v. Rowan, 29 Pa. St. 182 ; generally Collins v. Burlington, 44 Vt. 20 ; Addicken i'. Schrubbe, 45 Iowa, 310 ; Hempstead v. Stone, 2 Mo. fiC. ; but see People v. Frisbie, 18 Cal. 403. 4 Oyster v. Peavy, 40 N. J. L. 401 ; see Webb v. Games, 4 Mo. 11. 5 Castner v. Slater, 50 Me. 212. 6 Addicken v. Schrubbe, 45 Iowa. 316. 7 Dougartr. Desangle, 10 Rob. (La.) 432; Duggan v. iJi Li/.ardi, 5 Rob. (La.; 226 ; Munn v. Haynes, 46 Mich. 143. 8 Dorn v. O'Neale, 6 Nev. 158 ; Ivey v. Gamble, 7 Port. 516. 9 Caswell v. Englemann, 31 Wis. 96 ; generally Dunnv v. Smith, 18 N. Y. 568. 10 Binge v. Smith, Dallam (Tex.) 616 ; and see Machette ?'. Magee, 9 Phila. 24 ; Bennett v. Shillars, 7 Tex. 602 ; Harwood r. Roberts, 5 Me. 441. 11 Benn'ett v. Shillars, 7 Tex. 602 ; see Divine v. Duncan. 2 Abb. N. C. 3.30 ; Clarborn v. Goodloe, Cooke, 394 ; In re O'Flaherty, 7 La. An. 640. . 12 Hosie V. Judge etc. 22 Mich. 496. 13 Greer v. Miller, 2 Over. 188 ; Peoples. Harrison, 82 111. 86 ; Minor V. Mechanics' Bank, 1 Peters, 73 ; Colt v. Learned, 118 Mass. 381. 14 Winslow V. Herrick. 9 Mich. 380. 15 Deloach v. Dixon, 1 Hemp. 429; Gossom v. Badgett, 6 Bush, 100 ; People v. Love, 25 Cal. 526 ; Bradford v. Toney, ;W Ark. 764. 16 Clinton Bank ?-. Hart, 5 Ohio St. 35 ; and see Ferrall v. Brad- ferds, 2 Fla. 513 ; but see Williams v. Rogers, 14 Bush, 786. 17 Clinton Bank v. Hart, 5 Ohio St. 35 ; People v. Harrison , 82 111. 86. 18 Bangor Bank v. Treat, 6 Me. 207. 19 Stiles V. Inman. 55 Miss. 472 ; compare Crump v. Wooton, 41 Miss. 612. 20 Green v. Burnet, 1 Handy, 285. 279 lOIN-DER OF PAKTIES. ^98 21 Deckpr v. Trilling. 24 Wis. 612 ; see Clapp v. Preston, 15 Wis. 544; srenerally Garrison v. Hollins, 2 Lea, (^ ; Kautzman r. Weirich, 26 Ohio 8:. ;»2. 22 Maiden ?•. Webstar, :» Tnd. 317; see Brenner v. Egly, 2.3 Kan. 124 ; generally Bennett v. Townsend, 1 Neb. 460. 23 Kautzman v. Woirich. 2o Ohio St. XK ; Tooke v. Taylor. 31 Te.x. 4 ; but st^e Harris v. Eldridge, o Abb. X. C 2^:) ; Brown r. C'hamplin, t;:\ X. Y. 220; Marshal v. Peek, 1 Dana, HIO : Stewart v. Glenn, .5 Wis. 16 ; compare Lamping v. Cole, o West L. M. 187. 24 Pcretz v. Peretz, 1 Mart. (O. S. i 22D ; Hosie v. Judge etc. 22 Mich, 4;)6 ; generally Mix ?'. .State Bank, 1 5 Ind. 522 ; Riddle v. Mandeville, 5 Cranch, 322 ; but see Weston v. Hoge, 7 Yerg. 3.t0. 25 Kirk v. Seawell, 2 Smedes & M. 571 ; and see McGrath v. Hoopes, 4 Cush. 438. 26 Pool V. Hill, 44 Miss. 300 ; compare Boush v. Smith, 2 Smedes & M. 512. 27 Aucker v. Adams, 2:5 Ohio St. 54:) ; generallv Hocking Val. Bank v. Walters, 1 Ohio St. 202 ; Hale v. Crowell, 2 Fla. o;i7 ; Beale r. Trudeau. IS La. An. 12) ; Griffin r. Simpson, 45 X. H. 20 ; Thompson v. Cretien, 3 Rob. iLa.r27; compare Ferrall v. Bradfords, 2 Fla. 513; Wooten V. Xall, IS Ga. 613 ; Walker r. 3L M. D. & M. Ins. Co. 31 Ala. 529. 2S Hempy r. Ransom, :V3 Ohio St. 319 ; generally see Stafford v. Xutt, 51 Ind. 'o-iS ; Mavenbaum v. Murphy, 5 Xev. 386 ; People v. Edwards, 9 Cal. 293. 29 Mitchell V. D'Armond. :» La. An. 330. 30 Simpson v. Prather, 5 Oreg. 88. I 98. Who may be joined as defendants in actions for torts. — When an action is brought against several defendants for a tort, it is essential that the act complained of bo joint ; ^ thus where two or more persons act each for himself in pro- ducing a result injurious to plaintiff, they cannot be held jointly liable for the acts of each ot^er.- Wlien an immediate act is done by the co-operation or the joint act of several per- sons, they arc all trespassers and may be sued jointly or severally,"* but there can be but one satisfaction. An action on the case for negligence occasioning tlic loss or destruction of a a slave hired by plaintiff to a co-partnership may be maintained against one of the firm alone, or all might be united in the action.* A joint action will not lie in favor of plaintiff against several defendants whose placesj of business are distinct, and who have no business connection'with each other, for injuries caused plaintiff by the sale of intoxicating liquors to her hus- band ; ^ the seller, however, maybe joined with the owner of the premises unoa which the liouor was sold, and unon which it is § 98 JOINDER OF PAETIES. 280 sought to enforce the lien.'^ Under the Revised Statutes, ( Maine) , chapter 82, ^ 11, when one of the defendants in an action brought to recover treble damages for the destruction of per- sonal property dies, plaintiff may discontiniTC as to the surviv- ors and proceed against the executor of the decedent, or he may discontinue as to the executor and proceed against the surviv- ors.' A release of one joint trespasser or a satisfaction and discharge of the liability against him which shows on its face that it is not the intention to satisfy and discharge the liability of the other joint trespassei's will not be allowed to work as a discharge of the action.** A joint action will not lie against the owners of a herd of cattle for trespasses committed 'by such stock, each person owning a several and distinct portion thereof ; ^ but if the stock is kept in a common herd upon the owner's farm and are under the joint control of all the owners, a joint action will lie.^" In an action for trover and conversion against two, where defendants appear and file a joint plea of not guilty, and issue is thereon joined, the jury may acquit one and find the other guilty and assess the damages against him.*^ When several persons have been jointly concerned in a series of fraudulent transactions they may be united as defend- ants in a suit to annul the fraudulent acts ; ^'-^ so where two or more join in the commission of a fraud by means of false rep- resentations, they may be joined in an action founded upon such fraud ; and it is immaterial whether the defendants had or had not a previous agreement to defraud the plaintiff, or whether they jointly owned the property sold or not ; ^^ but a mere participation in a conspiracy to defraud is not of itself a sufficient connecting link to render them liable to be joined in the same action. ^* It is not sufficient to make a tort joint that the acts constituting it stand even in immediate juxtaposition both in time and place, there must be a oneness of act. Thus where a river was divided by an island, and X. maintained a dam across the north channel, and Y. maintained a dam across the south channel, an action will not lie against X. and Y. jointly in favor of A. to recover for damages sustained by rea- son of overflow caused by said dams.^^ A creditor at whose 281 JOIXDER OF PAETIES. \ 98 suit an attachment is made of goods not the property of his debtor is not liable in rej)levin for the goods attached either alone or jointly with the attaching officer ; "> but if the creditor assisted in t iking the propsrty and took it into his own posses- sion after the attachment, a joint action will lie.^^ In an action of ejectment a plaintiff cannot join in one suit several defend- ants, each claiming several and distinct parcels of land ; but if the parsons in possession are mere trespassers, he will not be forced to separate actions.'*^ 1 Keves v. L. Y. G. W. & W. Co. 53 Cal. 7*4 : Blaisdell 7-. Staphens, 14 Xev. 21 ; Bard i-. Yohn, 26 Pa. St. +« ; Guille v. Swan, H Johns. 3S2. 2 Blaisdell ?•. Stephens, 14 Xev. 21 ; Little S. Xnv. Co. v. Richards. 47 Pa. St. 14'i ; Partenheimer v. Van Orden, 20 Barb. 480 ; Glamorgan V. Guise, 1 Mo. 143 ; La France v. Krayer, 42 Iowa, 14'). 3 Guiil.-' r. Swan, 10 Johns. 3S2 ; Whit? v. Smith, 12 Rich. fiOO : gen- erallv Buddiiisrion c. Shearer. 22 Pick. 42 i ; Mandiebauin r. Kussoll. 4 Nev. .5-is ; Bloss i'. Plvmale, 3 \V. Va. 403 ; Develing r. Sheldon, Ki 111. 3;)I : Smith ;•. Gayle, -58 Ala. 606 ; Page v. Freeman, 1!) Mo. 422 ; Sellick V. Hall, 47 Conn. 273. 4 Y\'hite v. Smith, 12 Rich. .5^9 ; generally Van AVagenen v. Kemp, 7 Hun, 320. 5 La France v. Krayer, 42 Iowa, 145. 6 La France v. Krayer, 42 Iowa, 14n ; Loan v. Hi:ioy, 5:5 Iowa, ^. 7 Treat ?•. Dwinel, 51 Me. 344 ; Galbreath r. Jones, G3 Ala. 1.":: ; Buddington r. Shearer, 22 Pick. 42). 8 Bloss V. Plymale. 3 \V. Va. 403 ; and see Ellis v. Esson. 50 Wis. 145 ; Chamberlin r. Murphv. 41 Vt. 110 ; Snow v. Chandler, 10 N. H. 93 ; Smith v. Gayle, 58 Ala. "GO?. 9 Cogswell V. Murphy, 4r> Iowa. 45 ; Van Steenburgh v. Tobias, 17 Wend. -562 ; generally Russell v. Tomlinson. 2 Conn. 207 ; Buddington ?'. Shearer, 20 Pick. 47!) ; Parlenheimer v. Van Orden, 20 Barb. 4S0 : but see Brady v. Ball, 14 Ind. 317. 10 Ozburn v. Adams, 70 111. 2')2 ; generally Rossell v. Cottom, 31 Pa. St. 525 ; Barnum v. Vandusen, Ifi Conn. 200 ; Jack v. Hudnall, 25 Ohio St. 2.5fi. 11 Tracy v. Cloyd, 10 W. Va. 19. 12 Andrews v. Pratt, 44 Cal. 3n ; generally Crane v. Hirshfelder, 17 Cal. 470 ; Porter ;-. Fletcher, 25 Minn. 493. 13 Stiles r. White, 11 Met. 35^; generally National Trust Co. i: Gleason, 77 N. Y. 402 ; Cramer r. Hernstadt, 41 Tex. 615 ; Robinson r. Davis. 11 N. J. Eq. 302. 14 Cramer v. Hernstadt. 41 Tex. 615. 15 Lull ?•. Fox & Wis. Imp. Co. 10 Wis. 101 : generally Sellick r. Hall, 47 Conn. 274 ; Cobb v. Smith, 38 Wis. 31 ; Clark v. Frv, 8 Ohio St. :?73. 16 Richardson v. Reed, 4 Grav, 441 ; but see Allen i\ Crarv, 10 Wend. MJ : Esty ?•. Love, .32 Vt. 745. 17 Esty 1-. Love, 32 Vt. 745. ^ 99 JOINDEK OF PARTIES. 282 IS Greer v. Mezes, 24 How. 277 ; generally Gibbons v. Martin, 4 Sawv. 206 ; Fosgate v. Herkimer M. & H. Co. 14 N. Y. 580 ; compare Lewis V. Adams 61 Ga. 5.=>9 ; and see also Kerr v. Phillips, 5 X. J. L. 820 ; Fosdick v. Gooding, 1 Me. 30 ; L,you v. Page, 21 Mo. 104. § 99. Who may be joined as defendants in suits in equity. — It ii a I'ulo in equity that all p.rsons slioukl be made partii s defendant whose i)resence is necessary to a complete judgment Avitli respect to the interests involved under the issues raised Ly the pleadings. ^ It is no objection to the joinder of defend- ants that thty have no identity of interests to be affected by the judgment. 2 When defendants hold certiticates of title to laud having their origin in and based upon the same general proceedings which are sought to be set aside, they are properly joined.^ When land conveyed by deed absolute on its face is sought to be recovered on the ground that the deed was in fact given as security for money loaned, subsequent purchasers who have taken with notice of plaintiff's equity may be joined as defendants.-* In an action to enforce and declare an implied trust in relation to lands, all jDcrsons who claim to be entitled to a portion of the trust estate arc properly made defendants. ^ On a contract to do certain work for two persons, one cf them cannot have relief in equity against the contractor without making the other a party to the suit, or stating an excuse for not doing so.'' The holder of a nott; secured by mortgage may, in a single action, demand and have a judgment against all the makers of the note, and a sale of the mortgaged premises, although the mortgage was executed by only a part of the makers of the note.^ 1 Green v. Milbank, 3 Abb. X. C. 148 ; generallv Haines v. Hollis- tcr. 64 X. V. 3 ; Schwoerer v. Boylston M. Asso. !)9 Mass. 295 ; Eureka Marble Co. v. Windsor Manuf. Co. 47 Vt. 446 : Forman v. Rodgers, 1 Marsh. A. K. 427. 2 Teas v. McDonald, 13 Tex. 353 ; see Boyd v. Swing, 3S Miss. 197. 3 AVatkins r. Milwaukee, 52 Wis. 102 ; generallv Ho\<-ss v. Moodv, 14 Fla. .5;) ; North r. Brad way, 9 Minn. 185 ; and see M'eiss r. Bethel, 8 Or eg. 523. 4 Webber v. Taylor, 5 Jones Eq. 736. 5 Jenkins v. Frink, 30 Cal. 535. Inhts. of Xew Braintree v. Southworth, 4 Gray, 304. ,. Ir^\'"7 r.SafiFord, 19 Ohio St. .587; generally Dederick ;•. Barber, 44 3rich. 20 ; Eastman v. Turman, 24 Cal. C82 ; Fond du lac Harrow Co. V. HaskiDs, 51 Wis. 136. 233 2USJ0IXDER A>-D >-ON-JOI>"UEE. ? ICO CHAPTER XY. OF THE inS-JOIXDER A>'D XON'-JOINDER OF PAKTIES, AltEKDrXEXT AND NEW PABTIES. 2 100. Misjoinder and uo:i-joiiid8r. how tho defect may be t:ik?n advantage of. § 101. Who may take advantage of a defect of parties. 'i 102. Generally of defect of parties plaintiflf. of amendment. 'i 10!. Generally of defect of parties defendant, of ameudmer.t. 'i 104. Generally of new parties. ^ 100. Misjoinder and ncn-j binder — How tiie defect may be taksn advantage cf. — TTlicn it appears upon tlic face of the complaint tliat tliere has been a misjoinder of parties plaintiff, the objection must be taken advantage of by demurrer.^ If the facts stated show no cause of action against the defendant in favor of one of the plaiuiifEj, defendant may demur as to such plaintiff.'^ When parties have no common interest, but assert several and distinct interests, a demurrer for misjoinder will lie.^ A misjoinder of parties plaintiff may be reached by a motion to elect which of them will proceed and prosecute the action.* "When a misjoinder of parties plaintiff docs not app ar upon the face of the complaint, and the objection is not talicn by the answer, it is deemed to be waived;^ if not taken by demurrer or answer the objection is waived." It cannot be taken advantage of by instruction." or by demurrer to the answer.*^ "When the defect of want of a ijroper party to the action is patent upon the face of the petition, the objection must be raised by demurrer ; ^ if it is not patent from the face of the bill that necessary parties have been omitted, the objec- tion can be raised only by plea and answer, showing who are the necessary parties.^" In actions ex delicto the non-joinder of a party plaintiff can only be taken advantage of by plea in abate- ment,!^ and cannot be taken advantage of upon the trial other, wise than in mitigation of damages. ^^ In actions ex contractu g 100 MISJOINDER AXD NON-JOINDEE. , 284 the objection of non-joinder of parties plaintiff may be taken advantage of if the defect appear on the face of the pleading by demurrer, motion in arrest of judgment, or on error, ^^ if the defect does not appear on the face of the pleading, by plea in abatement or as a ground of nonsuit.^* There are four dif- ferent modes of taking an objection for want of parties to a bill — by demurrer on record, demurrer ore tenus, by plea, and by answer.i^ "When a bill is brought by plaintiff for himself and all others having a common interest, and the complaint asked that the money sued for be paid into court for the benefit of the persons interested therein, or their assigns; held, that as the question of the assignment was not involved there was no defect of parties. ^^ a demurrer for want of parties must show who are the proper parties in such manner as to point out to the complainant the objection to his bill, and thus enable him to amend by adding the proper parties. ^^ Unless the objection of defect of parties is made by demurrer or answer it is deemed to be waived.^" An objection for mis- joinder of defendants should be taken either by demurrer or by answer,!'' it n-jay be reached by answer and motion in arrest of judgment.2" If it appears upon the face of the petition that there is a non-joinder of parties defendant, objection thereto should be made by demurrer ;-i if it does not so appear the objection should be taken advantage of by answerj'-^^ it cannot be taken advantage of by a motion for a nonsuit. ^^ At common law the objection for the non-jciader of defendants in actions ex contractu could only be pleaded in abatement,^* except when it appears in the petition that the parties omitted are living, in which case defendant may object without reiterating by plea in abatement the facts alleged by the plaintiff.'^^ "When defend- ants have in one action abated the writ by pleading other per- sons joint contractors not named therein, and a new suit is brought, a similar plea will not be allowed in the second suit, even if put in by the new defendants. ^e The general rule is that if several persons jointly commit a tort the plaintiff may sue any or all of them ; if he sue one, the defendant can neither plead the non-joinder of the others in abatement nor in bar.^' 285 an&roiNDER and yox-.joisDER. ^100 1 Petree t'. Lansing, 66 Barb. 358 ; Vaughn ?'. Lovejoy, 34 Ala. 441 : Parker v. Wiggins, 10 Kan. 424; Wornack ?•. McAhren. 9 Ind. 6; Vaiden v. Stubblefield, 28 Gratt. 157 ; Tilman r. Searcy, 5 Humph. +87 ; Plunkett v. Kelly, 22 Ala. 657. 2 Rumsev v. Lake, 55 How. Pr. 340 ; generallv Little v. Bine, 5 Jones Eq. 10 ; Horlge v. No. Mo. By. 1 Dill. 104 ; Clarkson v. De Pey- ster. 3 Paige, 3:36 ; Hardee Son & Co. v. Hall. 12 Bush, 328 ; Tennant r. Pflster, 51 Cal. 513 ; Gerry v. Gerry, 11 Gray, 381. 3 Hendrickson v. Wallace, 31 X. J. Eq. 6a5 ; Ware v. Warwick, 48 Ala. 297. 4 Ind. School Dist. v. Ind. School Dist. 50 Iowa, 324. 5 Hastings v. Stark, 36 Cal. 126 ; and S33 Tennant v. Pfistsr. 51 Cal. 513. 6 Rickey r. Tenbroeck, 63 Mo. 570 ; Hier r. Staples, 51 X. Y. 140. 7 Lass )■. Eiselben, 50 Mo. 123. S McEwen v. Hussey, 23 Ind. 395 ; compare Bouton r. Orr, 51 Iowa, 475. 9 State i: SappLngton, 68 Mo. 455 ; Porter v. Clements. 3 Ark. :3S2 ; Zimmerman v. Schoenfeldt, 3 Hun, 698 ; Robinson v. Smith, 3 Paige. 230. 10 Robinson v. Smith. 3 Paige, 3.30 ; generally Story v. Levingston, 13 Peters, ;?75 : Bay State Iron Co. r. Goodall, 39 X. H. 'i:U ; Pond v. Clark, 24 Conn. 332 ; Roberts v. Southern Minn. Ry. Co. 18 Minn. 110 ; Lillie r. Case, -54 Iowa, 182 ; Webster v. Vandwenter, 6 Gray, 4:30. 11 White V. Webb, 15 Conn. 305 ; Boerum r. Tavlor, 19 Conn. 127 ; Edwards r. Hill, 11 111. 23 ; Parker v. Wav, 15 X. H. 50 ; May v. W. U. Tel. Co. 112 Mass. 93 : Putney v. Lapham, 10 Cush. 235 ; Cooper v. Rail- way, 49 X'. H. 212 ; Lathrop r. Arnold, 25 Me. VSS. 12 Edwards v. Hill, 11 111. 23: generally Jones r. Lowell, 35 Me, 540 ; Putney r. Lapham, 10 Cush. 2:34 ; Webber v. Merrill, :« X. H. 207 ; Cooper r. Railway, 49 X. H. 212 ; compare May v. .Slade, 24 Tex. 207 ; Backinstoss v. Stabler, m Pa. St. 254 ; Deal v. Bogne,20 Pa. St. 2:K ; Courts v. Happle,49 Ala. 259 : Hart i'. Fitzgerald, 2 Mass. 511 ; and see Branch r. Doane, 17 Conn. 415. 13 Pitkin r. Roby, 43 X. H. 139 ; Crump v. McKay, 8 Jones, 34 ; Hicks i: Branton, 21 Ark. 189. 14 Pitkin r. Robv, 43 X. H. 139 ; generallv Ela v. Rand, 4 X'. H. EOS ; White V. Cusliiiig, :J0 Me. 269 ; White v. Curtis, 3.5 Me. 5.V4 ; see Ball r. Cou. F. Co. ;32 X. J. L. 102. 15 Gordon v. Holland, 3 Ired. Eq. 363; generallv Stillwell v. M'X'erly, 2 X. J. Eq. 30.5. 16 Blair v. Shelbv Co. A. & J. & S. Assoc. 23 Ind. 175 ; generallv Parish V. Sloan, 3 Ired. Eq. 609. 17 Dias r. Bouchaud, 10 Paige, 454. 18 Reugger v. Lindenberger, 53 Mo. 365 ; Dunn r. Han. & St. Joe Rv. Co. 6S Mo. 279 ; Bouton v. Orr, 51 Iowa. 475 ; McE%von v. Hussev, 23 Ind. ;395 ; Davis v. Bechstein. 6J X*. Y. 443 ; Chaffee v. Morss, 67 Barb. 253; Home Ins. Co. v. Pa. Rv. Co. 11 Hun. 182; Astie »•. L&rming, .5:3 How. Pr. :397; Risley v. Wightnian, 13 Hun, 165; Lillie v. Casts 54 Iowa. 182: Spencer ?-. Van Cott,2 rt:ih,:342 ; Snmm^TS r. Parish, 10 Cal. :3.50 ; Gillam v. Sigman, 29 Cal. 6i[) ; Potter v. Ellice, 48 X'. Y. :323 ; Parchen v. Peck, 2 Mo'it. 570 ; Horstkotte r. Menier, .50 Mo. 15!) ; Baldwin v. Canfield, 26 Minn. .>S ; Danghdrill v. Helms. 5-3 Ahi. 65; Adger r. Pringle, 11 S. C. 543 : Alloy v. Carroll, G Heisk. 2:« ; Wi:ig v. Cooper, 37 Vt. 186. § 101 MISJOINDER AND NON-JOINDEK. 286' 19 Warner v. Wilson, 4 Cal. 313 ; Gillman v. Sigman, 29 Cal. C39 ; Brown v. Kobinson. 6 La. An. 423 ; Foote v. Cincinnati, 9 Ohio, 34 ; Moore v. Wilson, I Utah, 187 : East R. T. Co. v. Xagle,,T8 Ga. 478 ; but see King v. King, 40 Iowa, 120 ; see also Homes v. Hollister, 64 X. Y. 3 ; compare Hill v. Marsh, 46 Ind. 219. 20 Cogswell V. Murphy, 46 Iowa, 45. 21 Donner v. Int. P. & Pub. Co. 70 Mo, 175 ; Nell v. Trustees, 31 Ohio St. 1") ; .see Hill v. Marsh, 46 Ind. 219 ; White v. Curtis, 2 Gray, 4?2 ; Chapman v. Hamilton, 19 Ala. 125. 22 Donner v. Int. P. & Pub. Co. 70 Mo. 175 ; Pavisich v. Bean, 48 Cal. 365 ; Durand v. Hankerson, 39 N. Y. 291. 23 Pavisich v. Bean, 4S Cal. 265. 24 Davis v. Willis, 47 Tex. 163 ; Johnson v. Ransom, 24 Conn. 535 ; Simonds r. Turner, 120 Mass. 329 ; Leonard v. Sheidel, 104 Mass. 359 ; Mershon v. Hobensack, 23 N. J. L. 5S1 ; Exum v. Davis, 10 Rich. 359 ; Schwartz's Estate. 14 Pa. St. 44 ; Collins v. Smith, 78 Pa. St. 425 ; Bos- well V, Morton, 20 Ala. 2i5 ; Miller r. Finn. 1 Neb. 289 ; Hyde v. Howes, 2 Bradw. 141 ; Holyoke v. Loud, 69 Me. 61 ; compare Farwell ?-. Davis, 66 Barb. 77 ; generallv Mitchell v. Chambers, 43 Mich. 152 ; Holcomb V. Tiffany, 3S Conn. 272 ; Sittig v. Birkestack, 38 Md. 163 ; see United States v. Gillespie, 11 The Reporter, 767. 25 Johnson v. Ranson, 24 Conn. 535 ; Davis v. Willis, 47 Tex. 163 ; compare Thomp.son v. Strain, 18 111. 370. 26 Witmer v. Schlatter, 15 Serg. & R. 151. 27 Lov/ V. Mumford, 14 Johns. 42G ; Buddington v. Shearer, 22 Pick. § 101. Who may take advantage of a defect cf parties.— "When there is a ini?jointIer of parties plaintiff all the defend- ants may demur ; ^ but if the misjoinder is of parties defendant those only can demur who are improperly joined.^ One whose duty it is to bring other parties before the court cannot com- plain by reason of their non-joinder.^ An irregularity in suing in the names of the members of the board of commissioners of public buildings Avhen the suit should have been in the name of the attorney-general, on the relation of the plaintiffs, can only be taken advantage of by the defendant himself, and not by the court of its owm motion.* When plaintiff in an action of assumpsit amends his declaration by striking out the names of a part of the defendants, the remaining defendants, to avail themselves of the non-joinder, must plead it in abatement.^ In a suit on an executor's bond, when one of the principals and one of the sureties are dead, the surviving principal cannot object to the non-joinder of the legal rciDresentatives of the deceased executor, or of the deceased surety.'^^ A party defend- 287 AMEXDilEXT. 2 102 ant who denies the plaintiff's right, and insists upon his own right to the fund sought, cannot raise the objection that an intermediate party through whom the fund came should be made a party.' 1 Christian r. Crocker, 2o Ark. .320. 2 Garland ;■. Nunn, 11 Ark. 730 ; Christian v. Crocker, 25 Ark. .329 ; Lewis r. Williams, 3 Minn. li>4 ; Goff v. Mav, 33 Ind. 23.) ; Horton v. Slerlge, 29 Ala. 498 ; Gutri:lge v. Vanatta, 27 Ohio St. 370 ; Patterson i\ Patterson, 1 Hayw. rx. C.) l&S ; McCormac v. Wiggins, 84 X. C. 2S0 ; Ch?rrv r. Munro, 2 Barb. Ch. 627 ; Crosby v. Berger, 4 Edw. Ch. 210 ; Eice v. Hunt, 12 Heisk. -343 ; Territory v. Hildorbrancl, 2 Mont. 423 ; Hopson V. Harrell, 56 iliss. 203 ; Miller v. Jamison, 24 2^. J. Eq. 43 ; Hoose V. Perkins, 9 Neb. 30[) ; Cocke r. Evans. 9 Yerg. 2W. 3 Clough r. Clough, 3 Mon. B. 6.5. f 4 Commrs. of Pub. Bldgs. v. Andrews, 10 Rich. Eq. 10. 5 BlLss V. Bliss, 12 Met. 2<57 ; generally Wilson v. Xavers, 23 Pick. 20 ; Davis v. Willis, 47 Tex. 162. 6 Stephenson r. McFadden. 42 Tox. 323 : and see generallv Walker V. Collins, 22 Tex. 189. 7 Crosby v. Berger, 3 Edw. Ch. .345 ; generally Commonvv. v. rraukfort. 13 Bush, ISA. '■" §102. Generallyof defect of parties plaintiff— Cf amend- ment. — A misjoinder of parties plaintiti in assumpsit is fatal to the action, no judgment can be rendered in their favor if the evidence at the trial fails to establish a joint cause of action. 1 A cause of action in favcr of each or either of two plaintiffs is no cause of action in favor of both; and the defect of joining the two plaintiffs may be met either by demurrer or answer.- The legal and equitable owner of a not? cannot be joined m an action thereon.^ In an action of tort, if the facts stated in the complaint show no cause of action against the defendant, in favor of one of the plaintiflEi, the defect may be taken advantage of by demuri-er, or may be raised at the trial, •♦ and the action would fail ; but by statute judgment may be given for the party plaintiff proving a cause of action, and against the party plaintiff having none ;^ upon appeal a judg- ment in favor of both will be reversed ; ^ upon remaudment of the case the improper party may be dismissed out of the case, and the cause proceed in the name of the party in intertst.^ The general riile in equity is that all the parties complainant must be entitled to relief, or the suit will fail ; if one is barred ^ 132 amexd:«ent. 233 by laches, lapse of time, or the Statute of Limitations, no relief can be granted to the others ; « this rule, however, Las never been applied with any stringency to creditor's bills.'-* When there is no community of interest between co-jDlaintififs, although the rights and relief sought are of the same character, the defect upon exception taken will be fatal. J" As a rule objections to the misjoinder of parties plaintiff must be made upon the pleadings, and will not be regarded when made at the hearing.ii When leave is asked for the first time at the hear- ing to amend the pkadings, it is in the discretion of the chan- cellor whether to allow it or not ; '^ to authorize a dismissal of the bill at this stage of the proceedings the interests of com- plainants must be so diverse that they cannot be included in one decree, or differ so widely as materially to affcct tile pro- priety of such decree. 1-^ When a part of the demandants who join in a Avrit of entry are not entitled to recover, the action must fail unless the writ be amended by striking out the names of such parties before verdict;^' so in any form of action a stranger having no right to sue cannot be joined with others who have ; if so joined, the proper practice would seem to be to move to strko out such party. '^ When parties having separate and distinct interests unite in a bill in equity, if one only is entitled to relief the bill may be amended, leave being granted by striking out the name of the person not entitled to relief; "^ so when a party is made co-plaintiff, without his privity or con- sent, the proper motion is, that his name be stricken out, net that the bill be dismissed, even as to him.^' When the defend- ant has severed a joint contract, the non-joinder of both con- tractors as plaintiffs in an action thereon is not ground for arresting judgment.^** When an answer alleging a elefect of parties })l:iintiff is in the nature of a plea in abatement, an issue to be tried is presented, and the court cannot upon the mere filing of the answer dismiss the cause of action.''* In actions of tort non-joinder of parties plaintiff is matter of abatement only;"-^** at common law neither in actions of con- tract nor for torts could new parties plaintiff be added by way of amendment. 2i In a court of equity the want of proper 2:9 A3IES-I»3rE>-T. ? 1C2 parties may bo taken at any time during the progress of the cause, and even in the appellate court ; -- hut as a rule if the objection is not made by demurrer or answer it cannot be at the hearing; 2^ it is not error to refuse to dismiss a cause on motion for want of parties, though it may be error to decree finally without them ; 21 after demurrer sustained, -leave was properly granted to amend by adding new parties ; -^ the non- joinder of parties, whose absence simply renders the defendant liabb to a revival of litigation, cannot, as a general rule, be taken advantage of at the final hearing ; 2« but if the interest of absent parties be of such a nature that justice cannot be done without their presence, the court may dismiss the bill without prejudice, or may retain it for amendment to bring in the necessary parties. 2^ The chancellor may notice the defect 01 parties even at the hearing, and of his own motion order it to stand over, on leave to amend, cr may dismiss it without prejudice ; ^s the better practice is, when the defect of parties has not been noticed until the hearing, not to dismiss the bill, but to order it to stand over to make the necessary parties, ^^ within a reasonable time ; and if plaintifT fails to do so, the bill should then be dismissed.''" The pvactice of allowing judgment creditors to come in and make themselves parties to a creditor's bill is well settled, and when no objection is made, that cred- itors have come in without having obtained an order of court for that purpose, the proceedings will not be reversed on that ground.^^ An obcction for a d:fect of parties should not be made for the first time in the supreme court.^'^ x bill will not bo dismissed for want of indispensiblo parties unless the objec- tion was taken in the court below, and complanant refused to join them by an amendment of his bill, in that case the suit may be dismissed without prejudic?,^'^ or the decree bo re- versed, and cause remanded with leave to amend.^' 1 Erent v. Tivebaugh, 12 Mou. B. &3 ; Bell v. Allen, .>T Ale,. I2S Masters r. Freei jan, 17 Ohio St. 324 ; Porter r. IJickernuin, 11 Gray, •JS2 ; compare Dodge v. Wilkinson, -i ZMet. 206; see also Murphy v. Crr, .S2I11.492. 2 Masters v. Freeman, 17 Ohio St. 326. 3 Curtis V. Sprague. 51 Cal. 241. Parties— 25 g 102 AMENDMENT. 2D0 4 raiiiiso3' V. Lake, "w How. Pr. S40 ; gonerally C. . Champlin, 4 Edw. Ch. 223 ; Potter v. Holden, 31 Conn. 3;!.5. ;^ Kerr v. Bell, 44 Mo. 124 ; Long v. De Bevoix, 31 Ark. 481 ; Black- burn V. :Morton, IS Ark. :iS.5. '33 Andrews?'. Hobson,23 Ala. 232 ; generally Berrvman v. Graham, 21 X. J. Eq. 378 ; McCuliy i\ Chapman, 58 Ala. 328 ; Watson v. Gates, 53 Ala. 64J. 34 Watson v. Gates, 53 Ala. C43 ; Anderson v. Anderson, 1 Hen. & M. 13. ^ 1C3. Generally oT defect of parties defandant, of amend- ment. — A court of equity will not suffer its jurisdiction to be ousted by the mere joinder or non-joinder of formal parties, but will rather pi-ocecd without them, and decide upon the merits of the case between the parties who have tlie real inter- ests before it, whenever it can be done without prejudice to the rights of others.^ A person who merely proceeds to collect an execution placed in his hands as an officer ought not to be made a party to a bill of injunction ; if he is, the bill will be dismissed as to him with costs. ^ When two persons who are not jointly liable are joined as defendants in one action, merely for the purpose of acquiring jurisdiction over one who is a non- resident, and the misjoinder appears upon the face of the peti- tion, the question of jurisdiction may be raised at any timc,^ it is properly pleaded in abatement.'* Several causes of action can only be united in one complaint, when each cause affects all the parties to the action, and they must be in favor of all the plaint- iffs, and against all the defendants.^ In an action upon con- tract against several, it must appear upon the face of the pleading that the contract is joint, and that fact must be jiroved at the trial ; ^f too many parties are made defendant.-, and the g 103 AMENDMENT. 292 Objection appear on the pleadings, defendant may demur, move in arrest of judgment, or support a writ of error ; if the defect doss not appear upon the face of the pleadings plaintiff may be nonsuited at the trial ; '^ he cannot amend at the trial and take judgment against the defendants who are liable ; ^ but by stat- ute plaintiff may obtain leave to amend by striking out the names of defendants not liable, and proceed as to the others.^ In all actions for tort there can be no objection that all the tort feasors are not joined, or that persons are joined as defendants who are not guilty, but a recovery may be had against the per- sons who are guilty, and an acqiiittal of those improperly sued/** A party may be enjoined against a tortious act, even if other parties interested with him are within the jurisdiction and are not joined ; so if such other parties are out of the jiiris- diction of the court. ^^ The general rule in actions ex contractu is, that plaintiff must join as parties defenelant all who are jointly liable iipon the contract sueel on, and if he does not the non-joinder being pleaded in abatement is fatal to a recovery ; ^^ if the pica is not interposed the objection is waived;^- but these common law rules as to joint and several liability upon contracts are in effect abolished by the provisions of the Code ; ^^ to make too many defendants is generally immaterial, but to leave one out who ought to be joined is generally fatal upon exception taken, iniless the defect is cured by amenelment.^* As a rule no error can be predicated upon the absence of proper parties to an action at law when no motion is made to make such other persons parties.^^ In a suit in equity the fact that a person liable is out of the jurisdiction of the court is usually a sufficient excuse for his non-joinder; so if he be dead, was insolvent, and no personal representative has been appointed, and the facts appear by the pleadings, the cause will proceed.^'' A demurrer for want of parties should show who are proper parties defendant." If the defect appear upon the face of the petition a demurrer thereto should be sustained. i« When amendment is not a matter of right under the rules the grant- ing leave to amend is usually a matter of discretion, br.t it is not usual, nor is it proper, for a court of chancery to dismiss a bill 293 AilEND^TEXT. I 103 for want of parties defendant, without allowing complainant leave to amend, when the bill is not demurred to upon that ground, and the defect is only pointed out on the argument ; ^^ if the bill makes a case warranting' relief the cause may, upon payment of all costs, stand over for the purpose of amendment, or be dismissed without prejudice. 2« If there be an omission of an indispensible party, so that a complete decree cannot be made without him, the court will of its own motion take notice of the fact and direct the cause to stand over, in order that such new party may be added, ^^ or dismiss the bill if the plaintiff is chargeable with laches ; ^^ but the court will not pass upon the merits of the case.2^ A defect of parties cannot be made for the first time in the supreme court, ^^ unless it shall appear that parties are omitted whose rights are so connected with the subject-matter of the suit, that a final decision cannot be made without mater- ially afi^cting their interests.^^ When a decree is reversed for want of parties, if it has merits, leave will be granted to make the necessary parties, otherwise it will be dismissed. ^*> 1 AVormley v. Wormlev, 8 "Whsat. 451 ; g^enerally West v. Ran- dall, 2 Mason, 'l90 ; White v\ Delschneider, 1 Oreg. 257. 2 Lackay v. Curtis, G Ired. Eq. 201. 3 Graham 7-. Kip.go, 67 ilo. 325; generallv Capital City Bank t'. Knox, 47 Mo. 3:3:^. ; Jacobs v. Mellen, 14 Mass. \U. 4 Jacobs V. Mellen, 14 Mass. 134. 5 Earle v. Scott, 50 How. Pr. 508. G Burr & Co. v. Ross, 19 Ark. 2-50 ; compare Walker x\ M. M. Dock & 31. Ins. Co. 31 Ala. 530 ; generally Patterson v. Loughrldge, 42 X. J. L. 2i ; Rosenberg i-. Barrett, 2 Brad\v. 3S0. 7 Burr & Co. v. Ross, 19 Ark. 250 ; Fuller v. Miller, 53 Me. 41 ; Mc- Lean V. GrLswold. 22 111. 219. 8 Cutts V. Havnes, 41 Me. .5S0 ; Fuller c. Miller, 5S Me. 41 ; Burnes V. Ashworth. 72 X. C. 407; Buie v. Mechs. B. ct L. Assn. 74 X. C. 121 ; Flanders r. Wt. ^Itg. Bank, 43 X. H. 333 ; and see Patterson v. Lough- ridge, 42 X. J. L,. 23. 9 McLean r. Griswold. 22 111. 219 ; generallv Murphv v. Orr. :B2 111. 492; Inhabitants of Milford v. Holbrook, 9 Allen. 22; Boutelle ?•. Xourse, 4 Mass. 432 ; Burnham r. Webster, 5 Mass. 270 ; Mandlebauni V. Russell, 4 Xev. 555 ; Wheeles v. Worcester, 10 Allen, 590. 10 Florence Sew. M. Co. v. G. & B. S. M. Co. 110 Mass. 12. 11 Page V. Brant. 13 111. 3S ; generally McDonald v. Backus, 45 CaL 283 ; Urtou v. Hunter, 2 \V. Va. 8f«. 12 Williams v. Rogers, 14 Bush, 782; Reed v. Wilson, 39 Me. 5S6; Tiger v. Lincoln, 1 Colo. 400 ; compare Merrill v. Coggill. 12 X. H. 99. g 104 >'E"V\' PARTIES. 294 13 -Williams v. Rogers, 14 Bush, 782. 1-1 Buie V. Mpchs. B. A L. Assn. 74 X. C. 120; generally Burns r. -Vshworth. 72 X. V. 4r»7 ; McDonald v. Backus, 45 Cal. 263 ; Woodward r. Ware, o7 Me. .tW ; White v. Curtis, 35 Me. 5."^. Li Grim v. Semple, 39 Iowa, 572. 16 Shivevi'. Jenkins. 1 Ired. Eq. 128; and see Palmer v. Stevens, 100 Ma.ss. 46(5 ; compare Russell v. Clark, 7 Cranch, 98. 17 Chapman v. Hamilton, 19 Ala. 124. iS Vandine r. Eherman, 26 La. An. 388 ; generally Milins v. Marsh, 1 Disn. 512. 19 Woodward v. Clark, 15 J^Dch. 110; generally Roddy v. Elam, 12 Rich. Eq. ;^S ; Milins ?". Marsh, 1 Disn. 513 ; Van Epps v. Van Deusen, 4 Paige, 75 ; Campbell ;•. Campbell, 8 X. J. Eq. 740 : Rice v. Doniphan, 4 3Ion. B. 123 ; Dougherty v. Morgan, 6 Mon. 152 ; Potter v. Holden, 31 Conn. 394 ; Sears v. Hotchkiss, 25 Conn. 177 ; Isler t\ Koonce, 83 N. C. 56. 20 Van Epps v. Van Deusen, 4 Paige, 75; generally Woodward r. Clark, 15 Mich. 110; Sherman v. Parish, 53 N. Y. 488; Kirkpatrick v. Buford, 21 Ark. 269 ; Vandine v. Eherman, 26 La. An. :»S. 21 Schwoerer v. Boylston M. Assn. 99 Mass. 294 ; Settembre v. Put- nam. :» Cal. 497 ; Grain v. Aldrich, 38 Cal. 522 ; Shaver i'. Brainard, 29 Barb. 26. 22 Schwoeirer v. Boj-lston M. Assn. 99 Mass. 294 ; and see Harris v. Trustees, 110 Mass. 292. 23 Craig v. McBride, 9 Mon. B. 14 ; generally Harris v. Trustees, 110 Mass. 2ir2; Hopkins v. Roseclare Lead Co. 72 111. .373; Stimson v. Thorne, 85 Gratt. 283 ; Russel v. Clark, 7 Cranch, SS. 24 Reeder ?•. Maranda, 66 Ind. 487 ; Cornwell v. Watkins, 71 111. 490 ; Ferguson v. Fisk, 2S Conn. 511. 25 Cornwell r. Watkins, 71 III. 490. 26 Conlv V. Bovle, 6 Mon. 6.39; generallv Jackson i\ Mnrrav, 5 Mon. ]89;'Muir r. Gibson, 8 Ind. 190; Baker v. Backus, 32 Iil.'S6; Lynch v. Rotan, .39 111. 20. § 104. Generally, of new parties. — On filing a petition by one who conceives liimself interested in the event of a chancery cause, the correct practice is to ask orally of the court that the matter of it be considered, and that the petitioner be made a party ; otherwise it is not the duty of the court to take up the subject of the petition until the hearing of the cause.^ The manner of making new parties when not dh-ected by positive law must be determined by the practice of the courts, and like other matters of practice is subject to be regulated by them.^ A complainant by petition united in a creditor's bill which had been filed against defendants before it was at issue, subpoenas were issued and served on him, and although no order aj^peared to have been made permitting the joinder, all the subsequent 235 NEW PARTIES. § 104 proceedings were carried on as if such order bad been entered ; the court and all parties seem to have acquiesced in the joinder.'' When a new party is sought to be charged by the original bill, he should be made a party in the maoner prescribed by the practice of the court, a mere service of process upon him is not sufificieut.* When a complaint which states no cause of action or ground of relief against a particular person is not amended so as to do so, an order making such person a party defendant and requiring him to ajDpear and answer such complaint is erroneous.^ In certain cases where on payment of money a right of subrogation exists, the defendant when sued for the recovery of such money may by cross-petition bring in as defendants those against whom a cause of action would arise in his favor to enforce a repayment of such debt ; ^ but in a strict legal action defendant cannot by interposing an equitable de- fensj compel plaintiif to amend his complaint and bring in new parties.' When the answer of defendant in a suit in chancery discloses the fact that there are other parties claiming as his assignees, the interest sought to be affected, and that a decree would drive such third persons to an independent suit in order to assert their rights, complainant should obtain leave to amend his bill and make such persons parties defendant ; ^ if he neglect to do so the court of its own motion should order it to be done that the whole controversy may be settled in one action.^ A person who has no interest in a legal sense in the subject-matter of a suit in personam cannot compel the plaintiff to make him a party either plaintiff i" or defendant. ^^ The gen- eral rule under the Code is that the court should not order new parties defendant to be brought in against the will of the plaintiff unless the presence of such new party is necessary to the deter- mination of the action. 12 General creditors in absence of any fraud of their rights by complainants will not be allowed on p3tition to be made parties defendant to a bill to enforce a specific lien created by mortgage prior to their rights. ^^ When a person acquires an interest in mortgaged premises after fore- closure proceedings have been commenced, it is not error to refuse to permit him to be made a party defendant upon his g 104 >'E"^' PAKTIES. 2CG own aijplication ; ^^ but a fraudulc*it vendee j'^cndente lite may be made a party defendant by amendment. ^^ Xe^v- parties are usually made by amendment of the pleadings before decree, but in some instances where their interests are apparent courts of equity will, to prevent further delay and as a matter of indr.l;:;ence, permit them to bring forward their claims by peti- tion in order that their rights may be protected.^*" When a person had been made a defendant in an action of ejectment, but before service of process or appearance the action was dis- missed as to him, and judgment taken against the other defendant, such judgment does not conclude the former party, and he cannot insist on being made a party to the action after the judgment had been fully executed.^' When a cause has been heard and a final judgment rendered, it is too late for third persons to come in and ask to be made parties that they may prosecute an appeal, and especially so where they show no right to the thing in action or to its immediate use or con- trol.^** When the original bill does not state a cause of action against defendants who have been made parties by leave of court and no amended bill has been filed as to them, the bill will l>e dismissed as to them even though they have answered the original bill, there being nothing for them to answer, relief could not be granted against them.^'-' Persons improperly made defendants may be stricken out on motion. -"^ 1 Williams i\ Hall, 7 Mon. B. 295. 2 Kegaiis v. Allcorn, 9 Tex. 34 ; generallj- Britain v. Cowen. 5 Humph. 817. 3 Myers v. Fenii, 5 Wall. 207 ; generally Cliamplin v. Champli.M, 4 Edw. C'h. 229. 4 Odom V. Owen, 2 Jere Baxt. 448 ; Britain v. Cowen, 5 Humph. 317 ; Shields r. Barrow, 17 How. 145. 5 Penfield v. AVheeler, 27 Minn. 358 ; compare McGregor t. Mc- Gregor, 21 Iowa, 454 ; and see Shields v. Barrow, 17 How. 145 ; Har- mison f. Loneberger, 11 W. Va. 185; Birmingham v. Griffin, 42 Tex. 6 Besor v. McKenzie, 2 Disn. 211 ; generally Odam v. Owens, 2 Jere Baxt. 44.S ; but see Shields v. Barrow, 17 How. 145 ; see also McKisson v. Mendenhdll, 64 X. C. 287 ; Webster v. Bond, 9 Hun, 4.39. 7 Webster v. Bond, 9 Hun, 438. 8 Hopkins v. Boseclare Lead Co. 72 111. 377 ; Robinson v. Gleason, 53 Cal. 30. 297 ^-EW PAKTiES. § 104 9 Rohinson v. Gleason, 53 Cal. :•!!) ; generally Vaiibuskirk r. Levy, 'i Met. (Ky.j liifi ; City of Louisville ?'. Henderson, 5 Bush, olb. 10 Drake v. Goodridge, 6 Blatchf. 151. 11 Colman v. Martin, fi Blatchf. 120 ; Drake v. Goodridge, C> Blatchf. 120. 12 Fagan %'. Barnes, 14 Fla. 5S ; Ex parte Proskauer, 59 Ala. 195 ; Hillier r. Stewart, 26 Ohio St. 6.56 ; Burke v. Wilkius, 49 Ga. 261. 1.3 Foley v. Whitaker, 23 Ark, 98. 14 Chickering v. Fullerton, 90 III. .523 ; generally Lawrence r. Lane, 9 111, .^57 ; Steele r, Taylor, 1 Minn. 2S5. 15 Coates V. Elliott, 23 Tex. 610. 16 Birdsong v. Birdsong, 2 Head, .302 ; Saj-Iors v. Saviors. ■] Helsk. 533 ; generally Burke v. Wilkins, 49 Ga, 261. 17 Hathaway v. Fullerton, 11 Wis. 288 ; and .see Ex parte Brown, 58 Ala. .>13. IS Johnson v. Williams, 28 Ark. 479 ; Foley v. Whittaker, 26 Ark. 99 ; see Ex parte Brown, 58 AJa. 543 ; Files v. Watt. 25 Ark, 15L. 19 Andrew v. Solomon, 1 Peters C. C. 362. 20 Steele v. Taylor, 1 Minn. 26b. $ 105 ABATEMENT. 298 CHAPTER XYI. ABATEMENT, KEVIVOE, ETC. 2 105. Generally of abatement. § 10(3. Of the substitution of parties. § 107. Change of interest after suit commenced and before judgment. J 108. Change of interest after judgment and pending appeal. § 105. Generally of abatement. — At common law an action when abated is absoluteh^ dead — it is out of court for all pur- poses.i By statute the death or other disability must be sug- gested of record, and until ifc is, neither party can be com- pelled to advance ; after it is suggested, the other party is entitled to notice of the fact, and to the direction of the court that he proceed, without this he is not in default."'^ In equity a suit when abated is merely in a state of suspended animation and may be revived.^ The death of a defendant in a real action causes an abatement, the theory being that the rights descend to the heir, a new cause of action springs up, thereby changing the condition of the cause ;■* but actions in tha nature of trespass quaj^e clausuin fregit did not at common law abate because of the death of one of several defendants, they were declared against jointly and severally, might plead severally, have separate trials, and diverse judgments ; and even upon a common verdict against all, after joint declaration, plea, and trial, the plaintiff might enter a nolle prosequi as to some and take judgment against the rest.^ In an equitable action against several defendants for an accounting, on the death of one the action survives, and his representatives should be made par- ties."^ Where there are two or more plaintiffs or defendants in a personal action, and one or more of them die within a year after judgment, execution may be had for or against the sur- vivors without scire facias ; but the execution in such cases should be taken out in the joint names of all the plaintiffs or defendants. 7 The words " after issue joined" in the statute of New Jersey, to prevent the abatement of actions, means after 299 ABATE3IEN-T. ^105 the end of the pleadings in the case ; after the death of a party the pleadings cannot be amended to meet the exigencies of the case and bring it within the statute.** The abatement of a suit in equity by the death of a party, and its revival against his personal representatives by a bill of revivor, or by proceedings under the fifth section of the act relating to the abatement of suits, does not make it a new suit, it is the same suit, i;i which both parties are entitled to the benefit of all former proceed- ings ;^ and so, although scire facias to revive a judgment is to some purposes a new action, yet in the main it is to be regarded as a continuation of the former action — it creates nothing new, it only reanimates that which had before existed but whose vital faculties are suspended. ^" If a judgment thereon be entered for the plaintiff, it is not that he recover anything (except his costs on the sci7'e facias), but that he have his exe- cution for the debt, damages, and costs according to the force, form, and efi'ect of the recovery set forth in the scire facias. If the recovery had been against more than one person, the proceeding to enforce it must be against all, unless there be some fact of record which shows that the whole judgment has survived, or which in law warrants the collection of the whole judgment from some of them only.i^ T\lien a dormant judg- ment is revived, its lien against real estate is not so revived as to prejudice the rights of a piarchaser of lands from the judgment debtor while the judgment was dormant.'- "When a plaintiff dies a bill of revivor is not preferable to a scire facias, for whether the one mode or the other is resorted to the executor is simply to stand in the place of the testator; but when a defendant dies a bill is preferable to a sci7'e facias, for a new fact is then to be stated, i. c., assets in the hands of the executor. ^^ Upon the death of a sole defendant an appli- cation to revive the suit will not be granted when the defend- ant had not acquired rights or benefits in the litigation prior to his death, or it is not shown that prejudice would result to the estate by not continuing the action. i' When defendant in an action to condemn lands dies during the pendency of tiie pro- ceedings, the revivor (Code) should be in the name of the heir 2 105 ABATEMENT. 300 or devisee and not in that of the administrator. ^^ The county court has no power to appoint a special administrator for tlio purpose of defending a particular suit, in which the part}- dies jyendente lite; if the person die intestate, and no one will administer upon his estate, the plaintiff (Code) may by scire facias revive against his heirs. i*^ An action cannot be revived against a foreign administrator who has not brought assets within the jurisdicticn.^^ The statute in relation to the abate- ment of actions and their revival is in the nature of a special Statute of Limitations, after the expiration of the time therein limited, no wi-it of scire facias can issue ; ^^ so where the stat- ute prescribed that the action may be revived "by service upon the heir, icitldn two terms after the decease of defendant, a copy of the declaration, etc.," a service after that time is too late; nor is it sitfficient to apply for process within the time.'*' Wliea a plaintiff is under a stay of proceedings at the time of liis death, it does not prevent a motion to revive and continue the action, and unless the motion is made within the year re- quired by the Code, the action is barred.-*^ A defendant having a beneficial interest may exhibit a bill of revivor for the pur- pose of appealing from the decree rendered in the action. ^^ When a sole plaintiff dies his lawful representative, or any person interested by the death of such plaintiff, may cause himself to be made complainant to the suit ; when a sole de- fendant dies, the plaintiff may cattse the legal representative of such defendant or any person who has become interested by his death, to be substituted as defendant, unless he signify his dis- claimer in the matter in controversy. ''^- Before decree a suit cannot be revived at the instance of the defendant ; but after the decree either party may revive it.=^=^ When plaintiff or defendant dies after final argument, but prior to the decree, the court may order the decree to be signed as of a date prior to the death of the party. 2^ 1 Pringle v. Sizer, 2 S. C. 63. 2 Hendrickson v. Herbert, 38 IST. J. L, 297 ; generallv Crane v. French. 3S Miss. 529 ; Witt v. Ellis, 2 Cold. 41 ; Carlill v. Holdship, 13 La, 377 ; Appold v. Prospect Build. Assoc. 37 ild. 460 ; Holthaus v. ^lcholaS; 41 Md. 264 ; see Hiriat v. Hildreth, 8 La. Au. fA. I 3C1 SrBSTITfTION-. \ 106 ^^ Witt V. Eilis, 2 Cold. 41 ; Brewer r. Dodge, 28 Mich. 3fiO ; Pr:::gle v. Sizjr, •_' 8. C 6s ; Morrison v. Deadrick, 10 Hump. a4.:>. 4 People ex rel. ?'. Judge. 40 Mich. 351 ; Walker v. Thomas, T Wheat. O.J0 ; Alley ?;. Hubbard, VJ Pick. 24a Hendrickson r. Herbert, 33 X. J. L, 208 ; Sumuer v. Tileston, 4 Pick. :300, G Halstead v. Cockcrof t, S Jones & .S. 520. 7 Bowen r. Bonner.. 45 Miss. 27. 8 Dickerson ?■. Htoll, 24 X. J. L. 551 ; generallj- Crane v. Ailing, 14 N. J. L. 5J J ; Carlile r. Holdship, 15 La. 377 ; Berrigan v. Flemi:;g, 2 Lea, 273. 9 Marlatt r. War%Yick, 19 N. J. Eq. 445 ; generallv Lewis v. Out- law, 1 Over. 140 ; Rucker v. Lewis, 1 Heisk. 729 ; Carlile v. Holdship. 15 La. 377 ; Berrigan r. Fleming, 2 Lea, 273 ; Cregin v. Brooklvn C. Rv. Co. S3 2^. Y. 596 ; Gillette v. Morrison, 7 Xeb. '2M ; but see Rhodes r. Scholfield, GLa. An. 2.52. 10 Binford v. Alston, 4 Dev. 35.> ; and see Ellis v. Jones, 51 Mo. ISJ. 11 Binford v. Alston, 4 Dev. 3-53; generally Xortoa v. Beaver, 5 Ohio, ISI ; Bowen v. Bonner, 45 Miss. 2/. 12 Hutchinson v. Hutchinson, 15 Ohio, 312 ; Xorton v. Beaver, 6 Ohio, 17J. 13 Carson v. Richard.son, 3 HaA-w. 2:« ; generallv Brandon v. Mason, 1 Lea, 624 ; MUes r. Miles, 32 X'. H. 166 ; Ruc'.fer r. 2Ioor.s I H2isk. 72.S ; Bowen r. Bonner, 45 Miss. 28. 14 Republic of Peru v. Reeves, 8 Jones & S. 320. 15 Valley Ry. Co. v. Bohm. 2j Ohio St. 6:^4 ; generally Edgington v. Jamison. 2 Lea, -570 ; Brown v. Rocco, 9 Heisk. 187. 16 Bandy v. ^Valker, 3 Head, 539 ; generally Edgington r. Jamison, 2 Lea, .570 ; Brown v. Rocco, 9 Heisk. 187. 17 In re Webb, 14 Hun,12o. 18 Rutherford v. "Wliliams, 62 Mo. 254 ; generally Peer v. Cookerow, 13 X. J. Eq. 137 : Wentwortn v. Wenlworth, 12 Vt. 245 ; see Trea.s. cf Vt. i\ Raymond, 16 Vt. 368. 19 Love V. Scott, 4 Ired. 80 ; generally Rutherford r. Williams, 62 Mo. 2.53 ; Gallagher v. Delargy, 57 Mo. ;i5 ; s^e Cobb v. Conway, 1 Over. 2J5 ; Huffman's Heirs v. Stiger, 1 i-iiis. (Pa. i ISG. 20 In re Bainbridge, 67 Barb. 233 : but see Pavey x. Pavev, 30 Ohio St. 603. 21 Peer v. Cookerow, 13 X. J. Eq. 137. 22 Benson v. ^Volverton, 17 X. J. Eq. Ill ; generally Vaii .\llen r. Hewius, 5 Hun, 45 ; Cobb v. Lanier. 4 Havw. 297 ; Whe.'ler c. Wheeler, 7 Mass. 16.1 ; Roe v. Doe, .30 Ga. 776; Mavfield v. Stephenson, 6 Ba.Kt. (Tenn.) 399 ; Gibbs v. Cahoon, 3 Dev. 81 ; Scholev t-. Halsev, 72 X. V. 532. 23 Benson v. Wolverton, IG X. J. Eq. 112 ; generallv Peer r. Coo!:- erow, 13 X. J. Eq. 137 ; HoUiuiUo v. Xicholas,41 Md.2&4. 24 Vroom ?•. Ditmas, 5 Paige, 529 ; Campbell v. Mesier, 4 Joh::s. C\\. 342 ; Benson r. Wolverton, 1(> X. J. Eq. 111. \ 106. Cf the substitution cf parties. — It is regular anJ proper to suggest the death of a party in am* court, and at any P.A.RTIKS- 23 g 106 SUBSTITUTIOX. 302 stage of the proceeding.^ Upon the death of plaintiff his admin- istrator may be substituted as partj' to the proceedings by ex parte motion, satisfactory proof of his appointment and qiialifi- cation being made.^ An alleged assignee cannot be substituted as party until the legal representatives or heirs have had an opportunity to appear and contest the right, particularly if the defendants object to such substitution.^ A court of equity must have the real parties in interest before it, and will not permit a party who has voluntarily divested himself of any claim on his own behalf to continue litigating; as soon as complainant assigns his rights the suit as to him ceases, and becomes as defective for want of a complainant as if it had abated by his death, and can only be restored to activity by bringing the rights of the assignee before the court.^ The Code j^rovides, ■ however, that an action shall not abate by the death or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue.^ In case of death or other disability of a party, the court on motion may allow the action to be continued by or against his representative, or successor in interest ; in case of any other transfer of interest the action may bo continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action.'' Under the provisions of the Arkansas statute (sec. 7, Gantt's Digest), if a woman dies leav- ing a minor child, and an estate of less than three hundred dol- lars, the estate will vest in the child who may be substituted as plaintiff in a suit instituted by the eleceased parent.' If the mo- tion to substitute is made within a year after the death, the oppo- site party is not entitled as of right to notice of the motion for substitution ; ^ after the lapse of the year, a more formal motion is required.'' When a party of record dies x:)ending the action, his representative is not thereby made a partv, nor does he become affected by any proceedings in the suit, until he is brought into court and made a party in due forni.^" A court may permit amendments to be made to the extent of discontinuing the action as to any joint plaintiff or joint defendant, and changing the form of the action, so long as any one or more of the orig- 303 SUBSTTTUTIOX. I lOQ inal plaintiff and defendants remain parties to tlie action ; but no amendment can bo permitted which will make an entirely now case against entirely new parties to the record ; ^^ and so it is not permissible to strike ont the name of a sole i^arty, either plaintiff or defendant, and substitute the name of another per- son ; 1^ but where a suit was brought by A. for the benefit of B., held not to be error to amend by striking out the name of the nominal party, ^^ and allowing the action to proceed iu the name of the real plaintiff ; anel so when an action was com- meuccel by an agent, it was held not to be error to substitute the principal as plaintiff.^* When a suit in ee[uity was brought in the name of a corporation, and the proof failed to estabUsh its corporate existence, the stock being owned by three persons, an amendment was made allowing such stockholders to be made l^arties plaintiff", and to iDrosecute tLesuit in their names ; '^ but when suit was commenced by plaintiff as a voluntary associa- tion, the subsequent incoi-poration was held to be a new party, and that an amendment substituting the name of the incoi-po- ration as party plaintiff would not be allowed.^*" A purchaser at sheriff' 's sale under a mistake of fact may in certain cases have the sale set aside and be released from the purchase ; but the assignee of the sheriff's certificate is not entitled to have the judgment set aside and himself substituted as party plaintiff' in the place anel stead of the original plaintiff.^^ After an admin- istrator has been substituted as plaintiff, and answer filed, it is too late for elefendant to object that the averments of the x>eti- tijn do not correspond with the change of parties. ^^ When an action is brought against a baUee, he may protect the inter- ests of the real principal by bill of interpleader, but the Code provides a simpler remedy ; after action commenced, and before answer, he may deposit the pi'operty in court, and apply to have the principal substitutcel as defendant. ^5* The Code of Civil Procedure of Nebraska (sec; ion 50), pro- vides that "in an action against an 6fficer, for the recovery of property taken under an execution, and replevied by the plaintiff in sucli action, the court may, upon the application of the defendant, and of the party in whose favor execution issued. g 106 srBSTiTrTioN. ZOi IDormit the latter to be substituted a^ defendant, sccurit}^ for costs being given ; held, the order of substitution must be made before final judgment.*-^" The administrator of defendant can- not, without the consent of plaintiflf, procure himself to bo siibstituted as defendant ; his remedy is by motion to compc 1 plaintiff to make the substitution, or dismiss the action. -^ The owner of a note assigned the same to a fictitious person, and sued and recovered judgment in his name; upon bill filed by the defendant to restrain the collection of the judgment, it was held that although the original proceedings were an abuse of the process of the court, yet in absence of fraud the real party in interest should be made a party and jjermitted to defeud,^- "Where one of two joint debtors in an action upon contract dies X>endente lite, his executors cannot be substituted as parties defendant unless they could have been originally joined had the suit been commenced after the death of the testator.^^ An amendment cannot be permitted on appeal, which will make an entire 1/ new case against entirely new parties to the record.^* When the representative of one of several elefendants in an action of tort has procured himself to be substituted as a party, he cannot after appeal anel new trial granted, reobtain an order vacating the order of substitution.^^ Where the record shows who are the members of a partnership, in the name of which an appeal has been taken, an amendment may be made under section 1005, Revised Statutes of the United States, substituting their names. 2" When a party dies pending suit, and one not his representative is made a party in his stead by consent, and upon the express condition that the opponent shall lose no right thereby, the same evidence is admissible, as if the legal repre- sentative had been made a party. ^^ 1 Judson r. Love, 25 Cal. -^69, '2 Taylor r. W. P. Ry. Co. 45 Cal. 3.58 ; compare Howard v. Ulc- Kenr.io, 54 Tex. 18;J ; and see Htocking v. Hanson, 22 Minn. 545. 3 Howard v. 3IcKenzie,'&l Tex. 18.3 ; generally Moore v. Rice, 51 Tex, 290. 4 Bre-wer r. Dodge, 23 Mich. 360 ; and see Ross v. Crockett, 14 La. An. 812; Garr v. Gomez, i) Wend. 65;^; Mason v. Y. & C. Ry. Co. 52 Me. 107 ; Wright v. Meek, 3 G. Greene, 472 ; compare Scott r. ililliken, 60 111. lot). 305 REVivoK. ^107 5 French v. Edwards, 4 Sawy. 128; Elliott v. Teal, S Sa\v\-. 190; iloss 1-. Shear, 30 Cal. 475 ; Camarillo v. Feulou, 49 Cal. 200, G Moss V. Shear, 30 Cal. 47G ; generally Canaarillo v. Fenlon, 49 Cal. 203 ; Elliott v. Teal, 5 Sawy. 190 ; Chickasaw Co. v. Pitcher, Sfi Iowa, oDG ; Firman v. Bateman, 2 Utah, 272; soc Walker v. Felt, '>4 Cal. :«e ; see also Scott v. Milliken, GO lil. 109 ; Cox v. N. Y. C. & H. R. Ry. Co. G3 In . Y. 415 ; French v. Edwards, 4 Sawy. 128. 7 Smith V. Allen, SI Ark. 2ro ; Hampton v. Physick, 24 Ark. cG2. 8 Stocking r. Hanson, 22 Minn. 545 ; generally Smith v. Alle::, "1 Ark. 26) ; Matter of Bainbridge, fi2 Barb. 234 ; Firman ?•, Bateman, 2 Utah, 273 ; Hestres v. Brenneu, 87 Cal. ;58S ; see Jeifries r. Flint, 45 Mo. 81. 9 Stocking x\ Hanson, 22 Minn. 545; see generally Johnson v. E;woo:l, 15 Hun, 15. 10 Ex parte Tinkum, hi Cal. 203 ; Judson v. Love, 35 C.d. 4G9 ; and see Lynch v. Jackson, 31 C4a. G70 ; Virgin v. Brubaker, 4 Nev. :?4. 11 Douglas V. Xewman, 5 Bradw. 520. 12 Davis Park Ry. Co. v. Mallon, 57 Ala. 16S; Dubbers v. Goux. 51 Cal. 154; genercdlv Davis v. Mavor of X. Y. 14 X. Y. 52G ; Price v. Wiley. 13 Tex. 142 ; Winkelmaier v. Weaver, ii Mo. ;«8 ; Sliealy v. Toole, f4 Ga. 523 ; compare 3Iining j ; Todd v. Young, IG La. An. 162 ; Freeborn v. Denman, 8 IST. J. L. 116 ; Davis v. Church, I Watts & S. 242. 7 Luebbsring v. Oberkoetter, 1 Mo. App. 393. 8 People ex rel. Witherbee v. Supervisors, 70 X. Y. 2.'>7. 9 Hammond v. St. John, 4 Yerg. 119; generallj- Scholey v. Hal- sey. 72 N. Y. 583 ; Given v. Albert, 5 Walts & S. '-m. 10 Patterson v. Copeland, 52 How. Pr. 464 ; generally Scholey r. Halsey, 72 X. Y. 58^^ ; Greiner v. Hummel, 2 Watts, ;i46. 11 Livermore r-. Bushnell, 5 Hun, 2S.J ; generally Miller r. Koger. 9 Humph. 2:«; Brazee r. Blake, o Ohio, ;i40; Khenbottom v. Sadler, 19 Ark. 497; 3I'Cube v. United States, 4 Watts, 326 ; Duly v. Hogan. (« Me. ;«1. ^ 107 KEvn^OR. 310 12 Livermore v. Bushnell, 5 Hun, 285; Given v. Albert, 5 Watts 2. 16 Fisher v. Rutherford, 1 Bald. 192 ; generally Gilchrist v. Cannon, 1 Cold. .t86; Dandridge v. Thinge, 4 Rand. 403; compare Archer v. Collv. 4 Hen. & M. 411; Thomas v. hmith, 2 Mass. 480; Mitchell v. Starbuck, 10 Mass, 9. 17 Brewer v. Dodge, 28 Mich. .360 ; Garr v. Gomez, 9 Wend. 653 ; see X. A. Coal Co. V. Dyett, 2 Edvv. Ch.118 ; Change of Interest, Luat v. Stephens. 75 111. 509. 18 Leavv ?'. Gardner, 63 N. Y. 624 : see Hallahan v. Herbert, 57 N. Y. 410 ; but see Barber v. Bnnn, ;;4 X. J. L. 323. 19 Teneick v. Flagg, 29 X. J. L. 23 ; see generally Cregin v. Brook- lyn C. T. Ry. Co. .50 How. Pr. 33. 20 Jefcoat v. Knotts, 11 Rich. 654. 21 Barnard v. Harrington, 3 Mass. 228 ; generally Hench v. Met/er, Scrg. & R. 273 ; C^herry v. Hardin, 4 Heisk. 200. 22 Hagarty v. Morris, 2 Week. Notes, 154 ; Arundel v. Springer, 71 Pa. St. 400. 23 State v. Grand Trunk Ry. 61 ZNIe. 115. 24 Stillman v. Hollenbeck,4 Allen, 391; generally Reed v. Cist, 7 Serg. tfe R. 184 ; Penrod v. Morrison, 2 Pa. 130 ; Valentine v. Xorton, 30 Me. 201. 25 Keite v. Boyd, 16 Serg. . Dudley, 3 Mass. 296 ; Holmes v. Moore, 5 Pick. 253 ; Little v. Conant, 2 Pick. 527 ; Baker v. Dansbee, 7 Heisk. 230. 26 Pitts 7'. Hale. 3 Mass. 322 ; Mellon v. Baldwin, 4 Mass. 481 ; Reist V. Heilbreuner, 11 Serg. & R. 132. 27 Pitts V. Hale, 3 Mass. 322 ; Mellen v. Baldwin, 4 Mass. 481 ; but see Keite v. Boyd, 16 Serg. & R. 301. 28 Stebbins ?•. Palmer, 1 Pick. 79 ; Smith v. Sherman, 4 Cusli. 412 ; Lattimore v. Simmons, 13 Serg. & R. 184 ; but see Flanders v. Bedal, 51 X. H. 74. 29 Grim v. Carr. 31 Pa. St. 533 ; generally Brawner v. Sturdevant, 9 Ga. 69 ; Clarke v. McClelland, 9 Pa. St. 128 ; but see Withee t\ Brooks, 65 Me. 10 ; see Cutting v. Tower, 14 Gray, 183. 'V) Holmes v. Moore. 5 Pick. 258 ; generallv Sumner v. Tileston, 4 Pick. 309 ; but see Ten Eyck v. Runk, 31 X. J. L. 428. 31 B. & O. Ry. Co. v. Ritchie, 31 Md. 199 ; generallv see Schott v. Sage, 4 Phila. 87. 32 Withee v. Brooks, 65 Me. 18 ; Demond v. City of Boston, 7 Gray, 514. ;« Prescott V. Knoles, 62 Me. 278 ; see Little v. Conant, 2 Pick. 527. 34 Bradley v. Andrews, 51 Vt. 528 ; generallv Demond v. City of Boston, 7 Gray, 544 ; Cox v, X. Y. C. & H. R. Ry. Co. 11 Hun, 623. 311 KEVIVOR. ^/ 103 35 Young V. Citizens Bank of Baltimore, 31 Md. 70. m Fells V. Mayor etc. of Memphis, 2 Head, fioT, ; Polk v. Phimmer 2 Humph. 506. 87 Brown v. Kendall. 13 Gray. 272 ; compare Wilson r. Hall, 13 Ired. 43J ; Blount r. Wright, 1 Winst. iX). 3S Drake v. Curtis, 1 Cusii. 403 ; Cutting v. Tower, 14 Gray, IS-I. ;« Wilso!i ?'. Smith, 22 Gratt. 503 ; see Drake v. Curtis, 1 Cush. 400 ; Alley V. Hubbard, 19 Pick. 243 40 Wilson V. Hall, 13 Ired. 48.9 ; generally Milliken r. Marlin, 66 III. 17. 41 Arundel ?-. Springer. 71 Pa. St. 400; Means v. Presbyieriau Church. 3 Pa. St. 95. 42 Alloy r. Hubbard, 19 Pick. 243. 43 Boynton v. Rees, 9 Pick. 531. 44 Richardson v. Pond, l.'> Gray, 380. 45 Ilendrickson r. Herbert, 38 X. J. L. 298 ; and see Sumner ?•. rUeston, 4 Pick. 300 ; Mechaiiics' & T. Ins. Co. v. Shang, 5 Pa. St. 114. 46 Meohar.ics' & T. Ins. Co. v. Shang, 5 Pa. St. 114 ; generallv Treat V. Dwiael, 5 ) Me. 344 ; Gardner v. Walker, 22 How. Pr. 407 ; Bond i\ Smith, 4 Hun, 49. 47 Bank of California v. Collins, 5 Hun, 209 ; Reynolds v. Mason, 54 How. Pr. 213. 43 ChasG V. Lord, 77 X. V. 5 ; S. C. 16 Hun, :?70. • 49 Crcgin v. Brooklyn C. Ry. Co. 83 X. Y. 51)6. 50 Haines ?'. Coriiss, 4 Mass. 6;50 ; 8wa!i v. V\''ilkinson, 14 Mass. 296. 51 Boynton r. Boynton. 21 X. II. 24G ; sec 0'2>real v. State, 2 Sneed, I 108. Change of interest afi:er judgment and pending appeal. — In an action for damages for injury to the person, where judgment is for the plaintiff in the court below but i3 reversed by the district court, and pending appeal in the supreme court plaintiff dies, his death does not abate the suit.i If the appeal be in the nature of a wi-it of eiTor the judgment is merely suspended, not annulled. "■^ In an action of tort that dios "With the parson counsel for defendant stipulated as a con- dition for a continuance that in case of the death of defendant before iimxl judgment the alleged cause of action should survive and any judgment might be regarded as if rendered in plaint- iffs lifetime; also that in case of such death plaintiffs rtprc- sentatives might be substituted as plaintiff; held, the stipula- tion continued in force until final judgment although in the mean time a verdict and judgment in plaiutifl's favor had been set aside. "^ In general a petition in error must be prosecuted g 108 KEAIVOR. 312 by a party to the record, and to the judgment sought to be reversed ; but if such party die before error is prosecuted, his executor or heir, according to the nature of the subject-matter of the judgment, who becomes privy thereto by operation of law may commence and prosecute a proceeding in error without first being made a party to the judgment by review or other- wise.'* "When one of several appellants dies after their appeal is perfected, either party, appellant or appellee, may proceed to have the cause revived.^ The proper time to require proof of the death of plaintiff as well as the qualification of the exe- cutor is when the death is suggested and motion to revive is made.^ In case of the death of a party after judgment, appeal must be taken not in the name of the dead party, but in the name of him in whose favor the action might have been reviv d if death had occurred before judgment.'^ Substitution of p.r- ties can only be made in the manner pointed out in the statute, the same rule prevails in the supreme as in the circuit court.** If a party die pending his suit in the supreme court, and no one administer upon his estate, it may be revived by scire facias against his heirs, and judgment entered for or against them in their representative capacity.^ "When the appellant becomes a bankrupt after his appeal is perfected, his assignee may, upon production of the proper proof, be substituted as appellant in the case.'" "Where there is an appeal from a judgment in r,n action for divorce which simply denies divorce to the party seeking it, and pending appeal either party dies, the acticn abates and cannot be revived ;'i so if plaintifi" die after app;i.l by defendant in an action for assault and battery, an award having been made for plaintiff, no substitution can be made ; the award is at an end.'^ Mandamus also must be classed witli those actions that die with the person ; npon the death of i^eti- tioner, in the supreme court the proceeding abates. '^ After judgment had been obtained in an action by the town of B. against X., the town of B. was abolished and its interest in pending actions was vested in the town of A., held that an appeal from the juelgment should be prosecuted in the name of the town of A.i* 'When a joint judgment is rendered against 313 REvrs-OR. ^ 1Q8 several persons the writ of error to reverse the judgment must be brought in the names of all the parties if living ;!» but il after the judgment one of the parties dies, the -writ may be prosecuted by the survivor. ^"^ Tlie court below having arrested a judgment obtained by a husband and wife for slander of the wife, they brought theu' writ of error, it appearing that the wife had died since the writ was brought, it was abated.^' When a party dies after a cause has been argued and submitted in the supreme court, but befoi'e decision, the judgment will bo rendered as of the day when it was taken under advisement.^^ 1 Lewis V. St. L. & 1. M. Hy. Co. 59 Mo. 495. 2 Kinabrough v. Mitchell, 1 Head, 540 ; Lewis v. St. L. & I. M. Ry. Co. o'J 3Io. 495 ; Douglass r. Monford, 7 Yerg. 81. 3 Cox V. X. Y. C. & H. R. Ry. Co. C.3 X. Y. 41-5. 4 Hanover v. Sperry, 35 Ohio St. 245 ; see Taylor v. Elliott, 5-3 Ind. 442 ; Harwood v. Murphy, 13 X. J. L. 194. 5 Paine v. Bank of Virginia, 4 Gratt. 150 ; Benson v. "VVolverton, 16 X. J. Eq. 112 ; but see Jeflfries v. Flint, 55 Mo. 29. 6 Bond V. Bishop, 18 La. An. 5.50 ; generally Miltenberger t'. Mc- Guire, 15 La. An. 486. 7 Taylor v. Elliott, 53 Ind. 442 ; see Stone r.Ringer, 4 Heisk. 265. 8 Jeffries v. Flint, 55 Mo. 31 ; Eger.v r. Power, .38 Tex. .378 ; see Tar- leton V. Cox, 45 Miss. 431 ; generally Howard r. \Valsh, 28 La. An. 848. 9 Brown v. Rocco, 9 Heisk. 187 ; Boyd v. Titzer, 6 Cold. 569 ; see Tarleton v. Cox, 45 Miss. 431 ; generallv Howard v. Walsh, 28 La. An. 84S ; Reid v. Strider, 7 Gratt. 79 ; Valley Ry. Co. v. Bohm, 29 Ohio St. 634. 10 Herndon v. Howard, 9 Wall. 665 ; generallv Motfitt v. Cruise, 7 Cold. 138 : Esterbrook v. Ahern, 31 X. J. Eq. 4 :" Schell v. Devlin, 82 X^. Y. 335 ; O'Xeil v. Dougherty, 46 Cal. 576. 11 Downer r. Howard, 44 Wis. 87. 12 Miller v. Umbepower, 10 Serg. & R. 31. 13 Booze V. Humbird, 27 Md. 3. 14 Supervisors of La Pointe v. O'Malley, 47 WLs. 333 ; and see But- ternut V. O'Malley, 50 Wis. 3.33. 15 Patterson v. Butterworth, 4 Yerg. 158 ; Huff r. Miller, 2 Swan, 86 ; compare Gates r. Goodloe, 101 U. S. 613. 16 Huff V. Miller, 2 Swan, SO ; generallv Xorris r. Sullivan, 47 Conn. 477 ; compare Gates v. Goodloe, 101 U. S. 613. 17 Stroop 1". Swarts, 12 Serg. & R. 76. 18 Mead v. Mead, 1 Mo. App. 254 ; generallv McLean v. State, 8 Heisk. 288; Benson v. Wolverton, 16 X. J. Eq." Ill ; Brodie v. Wat- kins, 31 Ark. 332 ; Flock v. Wyatt, 49 Iowa, 46>< ; Mitchell ?•. Overman, 103 r. S. 62 ; Holloway ?•. Galliac. 4'» Cal. 14;) : Vroom v. Ditmas. ." Paige, 529 ; Campbell r. Mesier, 4 Johns. Ch. .'^2 ; Perrv v. Wilson, 7 Mass. .395 ; Yaple v. Titus, 41 Pa. St. 195 ; Blaisdcll v. Harris, 52 X. H. 191. Parties — 27 109 IXTERVENTIOX. 314 CRAPTEE XYII. IXTEEVENTION. § 109. Generallj' of intervention. i 110. Of the interest necessary to entitle a person to intervene. ? 111. Of the rights of interveners. 2 109. Generally of intervention. — Intervention is defiued to be the act by which a third person becomes a party to a suit pending between other persons, the intervention is made either to be joined to the plaintiff, and to claim the same thing he does, or some other thing connected with it, or to join the defendant and with him to oppose the claim of the plaintiff which it is his interest to defeat.^ An intervener is a person who volun- tarily interposes in an action or other proceeding with the leave of the coiirt.^ "When plaintiif brought suit as the mother of the real parties in interest, asserting no title in herself, and subsequently the latter by their guardian ad litem filed a com- plaint setting up the same cause of action, the subsequent appearance is not an intervention, but merely a substitution, and a stipulation made by the first plaintiff will bind the second.^ An intervention takes place when the order is made permitting the person to become a party; the complaint in intervention is filed Avhen leave of the court is granted ; ^ but a trial had before its service upon the party against whom the intervenor asserts a claim is premature, still erroneous pro- cedure in that respect does not involve any question of juris- diction. ^ A plea to the vagueness and insufficiency of an intervention amounts to a waiver of its service.*^ When proi> erty seized in a suit has been released to defendant upon a proper bond given, intervention is not the proper remedy for a third person claiming the same; he should pursue it in the hands of the defendant,'^ In general it is immaterial at what stage of the proceeding the intervenor interposes his petition pre- 315 INTEBVENTIOX. § 109 vious to final submission of the cause, provided the main suit be not delayed to the prejudice of other parties litigant.** He could claim and would be allowed time to cite the party against whom it is directed and the delays to answer usually given.** The parties to a suit are not obliged to take notice of a petition of intervention until notice of its filing is served upon them ; when, therefore, prior to such notice being given the original cause is settled, the petition must be dismissed.^'^ So a person may not intervene in an action after a judgment has been rendered there- in, ^^ particularly if the cause stands on appeal to the supreme court. ^- The right of intervention given by statute exists only in actions which are purely civil in their nature ; in the statu- tory proceeding in the nature of quo xccii-ranto the right does not exist ;^^ but it seems the right exists in pi'oceedings for writs of prohibition 1* and mandamus. ^^ A bill of interven- tion by which a stranger seeks to be introduced as a party into a suit in chancery for the purpose of amending a bill which the plaintiff has abandoned, and then to conduct that suit in his own name, cannot be maintained. ^^ When the demand of an intervenor does not grow out of the principal action, or is specially iiermitted by law, it must be dismissed.^' A general creditor will not be permitted to intervene in an equitable action and defend yro interesse suo, he has no standing in a court of equity ; ^^ neither can he be allowed to tender an issue which can be tried only by a change in the form of proceed- ings and a continuance of the cause for testimony.^'* In eject- ment a person who is in no way connected with the right of possession asserted by the plaintiff or the defendant, but on the contrary alleges title in himself paramount to both, cannot intervene.^" "When a defendant has excepted to plaintiff's petition on the gi'ound of non-joinder of certain persons, he is not in a position to except to the intervention of such persons in the suit ; 2' and so it is no ground of complaint that neces- sary parties to a suit ai-e permitted to make themselves parties, at their own instance, by intervention. -- 1 Bouvier Law Diet, title Intervention ; Hyman i\ Cameron, 46 Miss. 723 ; Lewis r. Harwood 28 Minn. 433. g 110 rSTERVENTIOX. 316 2 Ilapalje & Lawrence Law Diet, title Interveiior. 8 Temple v. Alexander, 53 Cal. 8. 4 Ah Goon ?•. Superior Court, fil Cal. 556. 5 Ah Goon v. Superior Court, 61 Cal. .556 ; see Chism et al. t. Ong, 33 La. An. 702. 6 Giraud v. Mazier, 13 La. An. 148. 7 Burbank v. Taylor, 23 La. An. 751 ; see Cass v. Ronark, 25 La. An. 353. S Smalley v. Taylor, 33 Tex. 669 ; Chi.sm et al. v. Ong, :« La. An. 702 ; Van Goidon v. Ormsby, 55 Iowa, 6S4 ; Hocker v. Kellej-, 14 Cal. 165 ; Coburn v. Smart, 53 Cal. 744. 9 Chism et al. v. Ong, 3:J La. An. 702; Moraii v. Le Blanc, 6 La. An. 113. 10 Xat. Bank v. Gill, 50 Iowa, 427 ; Cass v. Ronark, 25 La. An. ;!o4 ; Van Bibber v. Gave, 12 Tex. 15. 11 Carey v. Brown, 58 Cal. 184 ; Woolfolk v. Woolfolk. 30 La. An. 145 ; see Succession of John Clark, 30 La. An. 804 ; Ex parte Branch Sons & Co. 53 Ala. 140. 12 Blatchford ?-. Xewberry, 100 111. 492 ; but see Boutte v. Boutte, 30 La. An. 177; Succession of Clark, 30 La. An. 804; Sage r. Central Ey. Co. 93 U. S. 412. 13 People ex rel. Glidden v. Green, 1 Idaho, 235. 14 Ah Goon r. Superior Court, 61 Cal. 5-55. 15 State ex rel v. Pilsbury, 31 La. An. 8. 16 Hyman v. Cameron, 46 Miss. 726. 17 Bryan v. Atchison, 2 La. An. 463 ; Burditt v. Glasscock, 25 Tex. (Sup.) 45. 18 People r. Erie Ry. Co. 56 How. Pr. 122 ; and see Askew r. Cars- well, 63 Ga. 142 ; Horn v. Volcano W. Co. 13 Cal. 62. 19 Van Gorden v. Ormsby, 55 Iowa, 684. 20 Porter v. Garrissino, 51 Cal. 560. 21 Morrison v. Loftin, 44 Tex. 22. 22 Norvell v. Phillips, 46 Tex. 177- l 110. Of the interest necessary to entitle a person to intervene in a pending suit. — The intervener's interest musi be such that if the ori^iur.l action Lad never been commenced, and he had brought it as the sole plaintiff he would have been entitled to recover in his own name to the extent at least of a part of the relief sought ; or if the action had been brought against him as a defendant, he would have been able to defeat the recovery in part at least ; his interest may be either legal or equitable.' To entitle a person to intervene he must by averment show that his rights are involved in the cause which is being litigated, that he is entitled to the relief which he 317 IN-TEK\-EXTION. ^110 asks, and his application must be presented in time to enable the parties in the cause to meet and contest the issues which he may present. ^ An intervention cannot be maintained when the demand is not incidental to the main action, and where the intervenor neither joins the plain tiflF in claiming the same thing, or anything connected with it, nor unites with the defendant in resisting the claim of the plaintiff, nor claims a privilege on the proceeds of anything which has been sold, or pretends to be the owner of the thing which has been seized.^ If a person has an interest in the matter in litigation, or in the success of either of the parties he has a right to intervene, the Cod3 does not attempt to specify what or how great that inter- est shall be, therefore any interest is sufficient, and so it is immaterial that the intervenor may protect that interest iu some other manner.* The equitable owner of api'omissory note may assert his rights, and obtain a recovery by intervening in an action at law by the legal owner against the maker.^ The fact that the property or fund to which the intervenor sets up a claim has been placed by an order of court in the suit between the original parties in the hands of a receiver, would, if it had any effect, rather strengthen than detract from his right to intervene and assert his interest in the fund.** An assignee for the benefit of creditors may intervene in an attachment suit brought against his assignor prior to the assignment, and set up a claim against the plaintiff therein for damages sustained by his assignor by reason of the wrongful suing out of the attachment, and this although the assignor has himself pleaded the same as a counter-claim ; ' and so one who claims the owner- ship of p:n-sonal property attached in a suit to which he is not a party, who has recovered actual possession of the property under sections 2996 and 2997 of the Code of Iowa, may inter- vene in the attachment suit by virtue of section 3016, and have his rights adjudicated.** Subsequent attaching creditors may intervene in the action by the prior credicors when the first attachment was fraudulently obtained, and there is not suffi- cient property to pay both claims.'* And so if the first suit was prematurelv brought. i" In such case the allegations in the g 110 INTEKVENTION. 318 pleading on the part of the intervenor traversing the allega- tions of the complaint have the same effect as denials in the answer, and require affirmative proof by the plaintiff of Lis cause of action. ^^ When the homestead is attached in a suit agp.inst the husband, the wife may assert her rights by an inter- vention ; ^2 and so when suit is brought to foreclose a mortgage upon premises claimed as a homestead,^ ^ When suit had been brought upon a note by the payee, and subsequently he assigned the same to a third person, the latter was permitted to intervene and protect his rights in the original action. ^^ In a suit by the assignee of a bill of lading against the forwarding merchants for unlawful detention of the goods, the consignors were permitted to intervene and defend upon the ground that the goods were detained by virtue of the ir right of stoppage in transitu . ^^ When the title to real property is directly involved in a pending suit, any one interested in the subject-matter of litigation at the time of the commencement of the action which may be affected by the decree has the right to intervene, if demanded in a proper man- ner and at a proper time ; but if the title is only indirectly in issue, i. e., levied upon as the property of the original defend- ant, in such case a third person in possession, in order to entitle himself to the right to intervene, should allege siich facts as would authorize a court of equity to grant him a writ of inj unc- tion. i** A purchaser of a tract of land by metes and bounds from one party to a partition suit pending the proceeding should not be allowed to intervene therein ; but a purchaser by metes and bounds from a tenant in common may intervene in a partition suit, by showing that he is a bona fide purchaser, or by setting up other equities that could only be adjusted by such intervention. 1' One who was sole legatee of her husband, and has conveyed all his interest in lands which had been previously sold under a trust deed, cannot intervene in an action by the purchaser to quiet his title, and ask that the sale be set aside. ^^^ In this State (Texas) the law confers the absolute right upon landlords to make themselves parties to suits against their tenants. No particular rule being prescribed by law, it seems that to be most consistent with general practice an oral motion 319 LN-TEEVENTION. ? 110 should he made to the court for leave to intervene in the action.^'* In ciu action brought under section two thousand three hundred and twenty-six, United States Picvised Statutes, to determine the right of possession to a mining claim, thoso persons cnh* who have filed claims to the had iu the United States land ofSce are entitled to intei-vene.^" Tsliether in any case under the Code of Civil Procedure of California (§ 387), an intervention is proper iu an action of ejectment is not decided, but a thiixl p3rson cannot intervene in such action for the purpose of quieting his title as against plaintiff to a tract of land not in controversy between plaintiff and defend- ant.-i A simple contract creditor has no such intei'est in a pending suit of foreclosure as will warrant an intcrvention.^- In an action against a county to enforce a claim agi-eed to by its supervisors, a tax payer has no right to intervene, unless it be shown that the supervisors exceeded their powers,-^ or acted in bad faith ; -' but in a suit to enjoin the collection of a tax voted to aid the construction of a railroad, the company constructing the road and to be benefitted by the tax may intervene for the purpose of intei-posiug a defense."-^^ When application is made to a court for the appointment of a trustee, any parson w^ho claims the property as his own has the right to appear and be made a party, and to resist the appointment on the gi'ound that there is no trust. -'^ In a suit to enjoin the enforcement of a deed of trust mado to secure the payment of promissory notes, to which suit the maker and payee and trustee ai-e made defendants, it is proper to allow the assignees of the notes to intervene."'^' In a suit by an administrator upon a note due the estate, it is error to allow the attorneys for plaintiff to intervene upon a contract with the lattsr for a certain stipulated sum out of the recovery. ^s 1 Pomerov. Remedies and Remedial Risrhts, ? 4.'» ; Pool v. Sand- ford, 52 Tox. 6;« ; Dutil r. Pacheco, 21 Cal. 441 ; Horn v. Vuk-aiio W. Co. 13 Cal. 6;j ; Brown v. Saul et al.. 4 Mart. N. 8. 4o6 ; Harlan r. P2ureka M. Co. 10 Xev. <.H ; Lewis r. Harwood, 28 Minn. 4X5. 2 Smith V. Allen, 28 Tex. 501. 3 Moreau v. Moreaii, 25 La. An. 215. 4 Coffey v. Greenfield. 55 Cal. -iS^i ; Lewis v. Harwood. 2^ Minn. 433 ; Marsh v. Green, 79 111. 387 ; Taylor v. Adair, 22 Iowa, 282. §111 INTERVENTION. 320 5 Taylor v. Adair, 22 Iowa, 281; Stitch v. Goklner. as Cnl. GIO ; Gribble v. Haynes, 22 La. An. 141. 6 Graves v. Hall, 27 Tex. 154. ■7 Dunham v. Greenbaum. 56 Iowa, 303; generally Meyberg v. Steagall, 51 Tex. 354 ; Gayoso Sav. Inst. v. Burrow, 37 Tex. SO. 8 Tuttle r. Wheaton,57 Iowa, 305; and see Field v. Harrison, 20 La. An. 411 ; King v. Harper, 33 La. An. 496. 9 Coghill V. Marks, 29 Cal. 676 ; Sheyer v. Ihmels, 21 Cal. 286. 10 Davis V. Eppinger, 18 Cal. 381 ; Sheyer v. Ihmels, 21 Ciil. 286. 11 Sheyer v. Ihmels, 21 Cal. 286. 12 Stoddart v. McMahan, 35 Tex. 299; generally Irion v. Mills, 41 Tex. 313. 13 Moss V. Warner, 10 Cal. 297 ; Mabury v. Ruiz, 58 Cal. 12. 14 Converse v. Sorley, 39 Tex. 524. 15 Chandler v. Fulton, 10 Tex. 13.] 16 Whitman r. Willis, 51 Tex. 426. 17 Griffin v. Wilson, 39 Tex. 219. 18 Ingle V. Jones, 43 Iowa, 293. 19 Caldwell v. Graim, 32 Tex. 325. 20 M. B. Con. G. M. Co. v. Debonr, 61 Cal. 265. 21 Bosecrans v. Ellsworth, 52 Cal, 511. 22 Horn ?>. Volcano W. Co. 13 Cal. 69 ; generally Askew v. Carswell, 63 Ga. 162 ; People v. Erie By. Co. 56 How. Pr. 122. 23 Cornell College v. Iowa Co. 32 Iowa, .521. 24 Cornell College v. Iowa Co. 32 Iowa, 521 ; Greeley v. Co. of Lyon, 40 Iowa, 74. 25 Brown v. Bryan, 31 Iowa, 557. 26 Bass V. Fonteleroy, 11 Tex. 702; and see CofiFey ?,'. Greentield, 55 Cal. 382. 27 Smith?). Allen, 28 Tex. 499. 28 Kobb V. Smith, 40 Tex. 94. § 1 1 1. Of the rights of interveners. — A ruling of the court refusing an intervention, if correct at the time it is made, does not afterward become incorrect, by reason of the claimant chang- ing his character from an individual to a representative.^ An intervenor stands in the character of plaintiff before the court as to the nature of his title, and the object of his demand, and is governed in his pleadings by the rules of practice which apply to plaintiffs in principal demand ; ^ and therefore he must establish the correctness of his own claim before he can inter- pose the defense of prescription to plaintiff's demand.^ An intervenor cannot contest the right of plaintiff to bring the action, nor to stand in judgment; he must take the action as 321 I>'TEKYEXTIOX. ? Ill be finds it;^ neither can lie object to the form of the action,^ nor urge irregularities therein;*^ neither can he plead excep- tions having for their object the dismissal of the suit ;' and so a person cannot by means of intervention compel parties to liti- gate for his benefit or gratification.** If a person intervening has rights that need protecting, but which cannot be deter- mined ill the main action without delaying the suit, he ought not to intervene, but should commence an original action;^ although he may not delay the trial, still he is entitled to time necessary to have his intervention served, and put at issue be- fore the cause is tried.^^ When suit was brought by a bank to recover the price of property sold, and during the pendency of the action a thii'd person is subrogated to the rights of plaint- iff, such third person is competent to stand in judgment as intervenor ; ^^ but an intervenor may not without the consent of plaintiff substitute himself in the place and stead of defend- ant.^- A third person may by intervention have an attachment dismissed, and be decreed to be the owner of the property attached. 1-^ "\Tlaen one intervenes and bonds property attached, he stands in the relation of surety, and cannot be heard to constnie his obligation so as to defeat the law ; i* but if he claims an interest in the subject-matter of the suit, and by leave of court interposes his claim as defendant, and there is fraud and collusion between the original parties, whereby his interests are prejudiced, he may plead and prove that fact.^^ It is settled in this State (Texas) that a person may intervene in a suit to protect his own rights, and in doing so may assert an interest adverse to both plaintiff' and defendant.^'' An iuter- s-enor against whom no relief is prayed may dismiss his inter- vention, although one of the parties in the action has died, and his successor in interest has not been brought in as a party ; ^' and so when no default is taken, and no issue joined on the petition of intervention, the plaintiff may make his judgment by default against the defendant final, without the cause being fixed for trial; and the intervention will fall upon the decision of the main suit;i^ but issue being properly joined the inter- venor has a standing in court until his rights are adjudicated, §111 INTEKTENTIOX. even though all the parties are dismissed from the suit, save the one from whom he claims relief.i'* When the defendant has not appeared in the original suit, and has not been served with process to answer the petition of the intervener, it is error to render judgment against him, and in favor of the lat- ter ; but if he has appeared he is obliged to take notice of the Intervention.^'' A suit must be commenced in the name of the party legally or equitably entitled, and the fact that an inter- vener who is the real party in interest unites with plaintiff in his prayer for relief does not change the rule, so as to permit a recovery by plaintifif.^^ When a creditor has intervened, and made himself party to a suit brought by a wife against her husband, he cannot in another form of action attack the judg- ment rendered, he is bound by the decree, 2'-^ "When the right to intervene has been denied in the court below, a proper case being shown, it may be secured and enforced in the appellate court ; '^'^ the right of appeal is immediate upon the sustaining of an objection, by demurrer to the right of intervention.^^ He cannot appeal from the final judgment entered between the original parties: he is not a party aggrieved by that judg- mcnt.'^^ After a petition of intervention has been filed, an appeal will lie from an order striking it from the files ; ^^ so also from an order refusing to do so. 2' When proceedings in error are prosecuted by the intervener, the defendant in the original suit should be made a party thereto.^^ After a cause is regularly before the appellate court, it can only be dismissed by consent of all. parties to the appeal, ■'^*' When separate appeals are taken by an intervener, and by defendant, in an action of ejectment, from a judgment entered in favor of plaint- ifi", and from an order denying the motion of the intervener for a new trial, an affirmance of the judgment in the former appeal will not oust the jurisdiction of the supi'eme court to reverse the judgment upon the appeal taken by the intervenor, from the order denying the motion for a new trial ; the pro- ceedings are independent of each other.^" 1 ClevplaiKl ?•. Cumstock, 22 La. An. 598. 2 Clapp V. Phelps, 19 La. An. 462 : see Speyer v. Ilimels. 21 Cal. 2SG. 323 IN"TERVEXTIOX. ^111 3 Walker v. Simon, 21 La. An. 671 ; but see Speyer v. Ihrnels, 21 Cal. 2S6. 4 Cordill ?•. .Succ. of McCullough. 20 Lu. An. 175 : Kenner v. Ilolli- dav, li) La. 1.5-5 ; V) La. (X. 8., 104 ; West v. His Creditors. >» Kob. (La.) 128 ; Yeattnaii v. Estill, -i La. An. 222 ; Fleming v. Shields, 21 La. An. 119. 5 Heirs of Bedel r. Hayes, 21 La. An. 643 ; Van Gorden v. Ormsby, w Iowa, 664. 6 West V. His Creditors. S Rob. fLa.) 123 ; Carroll r. Bridewell, 27 La. An. 241 ; Smith v. Allen, 23 Tex. 501. 7 West V. His Creditors, 8 Rob. (La.) 12S ; Fleming v. Shields, 21 La. An. 118. 8 Cleveland t\ Comstock, 22 La. An. 508. 9 Van Gorden v. Ormsby, 55 lo^^a, CtVl. 10 Sllbernagle v. Silbernagle, 32 La. An. 766 ; and see Dnbroca v. Her Husband. 3 La. An. 332; Smith v. Strickland, 19 La. An. 118; Perkins r. Perkins, 20 La. An. 25S ; Gaines r. Page, 15 La. An. 103. 11 L'nion Bank r. Bowman, 15 La. An. 272. 12 Clapp V. Phelps, 19 La. An. 462. 13 Field v. Harrison, 20 La. An. 411, 14 Ledda v. Mammas, 17 La. An. 315 ; see generally Duperier v. Flanders, 20 La. An. 29. 15 Mussina v. Goldthwaite, 34 Tex. 131 ; and see Parker i-. Xolan, 37 Tex. 86. 18 Smalley r. Taylor, 33 Tex. 669 ; McDonough i-. Cross, 40 Tex. 238. 17 Sheldon v. Gunn, 56 Cal. 583. IS Yale V. Hoopes. 12 La. An. 460 ; and see First Nat. Bank of Leon V. Gill, 50 Iowa, 427 ; Bryan v. Lund, 25 Tex. 99. 19 The Joliet I. & S. Co. v. The C. C. A W. Rv. Co. 51 Iowa, 304 ; Wright V. Neatherbv, 14 Tex. 212 ; Elliott r. I vers, 6 Nev. 23.7 ; Poehl- mann v. Kennedy, 43 Cal. 207. 20 Bryan v. Lund, 25 Tex. 99 ; see Bradley v. TrousJals, 15 La. An. 206. 21 Browning v. Atkinson, 46 Tex. G03. 22 Markham r.-Q'Connor, 23 La. An. 638. 23 Perkins v. Perkins. 20 La. An. 253 : Smith v. Allen, 2S Tex. 501 ; Eccles V. Hill, 13 Tex. 65 ; Stich v. Goldner, 33 Cal. OiO ; Cohurn v. Smart, 5-3 Cal. 744 ; but see Bennett v. Whitcomb, 25 Minn. 149. 24 Stich I'. Goldner, 38 Cal. 610 ; and see People v. Pf oilier, 59 Col. 90. 25 People V. Pfeiflfer, 59 Cal. 90. 26 People v. Pfeiflfer, 59 Cal. 90. 27 First Nat. Bank of Leon v. Gill, 50 Iowa, 423. 2S Werms v. Sheriff etc. 48 Te.x. 432 ; and see Moodie r. Canibot, 14 La. An. 153. 29 Perkins v. Perknis, 20 La. An. 258 ; and see Mycr v. Bupree. 25 La. An. 216. 30 Douner v. PiUmer, 45 Cal. 133. 9 113 INTEKPLEADEE. 324 CHAPTER XYIII. INTEKPLEADEE. ? 112. Definition and nature of interpleader. ? 113. When a bill of interpleader may be maintained. ? 114. Who may file a bill of interpleader. §115. Eefect of interpleader. ? 112. Definition and nature of interpleader. — When a person is in possession of property in which he claims no inter- est, br;t to which two or more other persons lay claim, and he, not knowing to whom he may safely give it up, is sued by either or both, he may compel them to interplead. ^ Inter- pleader is a proceeding in the action of detinue by which the defendant states the fact that the thing sued for is in his hands and that it is claimed by a third person, and that whether such person or plaintiff is entitled to it is unknown to the defendant, and therefore he prays that a process of garnishment may be issued to compel such third person to become a defendant in his stead.2 The nature of the allegations, therefore, in every bill of interpleader are : first, that two or more persons have preferred claims against the complainant; second, that they claim the same thing ; third, that complainant has no beneficial interest in the thing claimed ; and fourth, that he cannot de- termine without hazard to himself to which of the claimants the thing of right belongs.^ A bill of interpleader, strictly so- called, is where the complainant claims no relief against either of the defendants, but only asks that he may be at liberty to pay the money or deliver the property to the one to whom it of right belongs, and may thereafter be protectee! from the claims of both.-* A bill in the nature of a bill of interpleader differs from a bill of interpleader in this ; in the former the complain- ant seeks not only to have the conflicting claims of the defend- ants against himself, which he desires to discharge to the proper parties adjudicated, but also some affirmative relief: in 325 IN-TEBPLEADER. ^113 the latter he simply asks that he may be allowed to pay money or deliver property to the party to whom it of right belongs, and that thereafter he may be j)rotected against the claims of both.3 The provision of the Code (New York) for interpleader by order is a substitute for the old action of interpleader, and is governed by the same principles.'' The remedy given by section forty-three of the Civil Code (Kansas) does not snp:-r- sede the action of interpleader ; but in cases where such remedy might be substituted for the action of interpleader, the reme- dies are concurrent." The object of a bill of interpleader is to protect the complainant where he stands in the situation of a stakeholder, not knowing to whom to pay the money or deliver the property in his hands ; and where a recovery against him at the suit of one party might not be a protection against the claim made by the other.^ The only excuse for filing it is to guard against known and not against unknown cLiinis.'-' The complainant should state his own rights and thereby negative any interest in the thing in controversy ; and he should set forth the several claims of the opposing parties. ^*^ 1 Rapalje & Lawrence Law Diet, title luterpleader. 2 Bouvier Law Diet, title Interpleader. 3 Atkinson v. Mauks, 1 Cowen, 703. 4 Bedell v. Hoflfman, 2 Paige, 200 ; Heath v. Hurless, 73 111. 327. 5 Heath v. Hurless, 73 111. 327. 6 Pustet V. Flannelly, 60 How. Pr. 60. 7 Board of Education r. Scdville, 13 Kan. 29. S Badeau v. Rogers, 2 Paige, 210. 9 M. &. O. Plaster Co. v. White, 44 :Mich, 29. 10 INIcEwen v. Troost, 1 Sneed, 193. j/ 113. When a bill of intsrpleadsr may bs maintained. — A bill of interpleader lies only when two or more per^ons claim the same debt or duty from complainant by different or separate interests,^ and he has no beneficial interest in the thing claimed. 2 The complainant must occupy the position oi a mere naked trustee of property, which he is willing to deliver to the rightful owner; but since there are severixl claimants thereto, and he is not willing to decide who has the better right, he proposes to devolve that responsibility upon the Paktiks — 23 g 113 INTERPLEADEE. 326 court.-^ To maintain the bill complainant must sliow thai there are several claimants to the fund or property; that he has no interest therein save as a naked trustee or stakeholder ; that he cannot determine the rights between the conflicting claimants without hazard to himself.* The bill will lie when- ever it is a matter of doubt to which of the defendants the fund in complainant's hands belong.^ If he entertain any fear that he would pay the fund to the wrong party he should file the bill.^ So, also, it is proper, although the party be not actually sued, or is sued by one only of the conflicting claim- ants, or though the claim of one be legal and another be equit- able in its nature.^ There should be attached to the bill an affidavit on the part of complainant, denying that collusion exists between the parties thereto,^ and usually the property or fund should be brought into court.'* When a legatee is not described with exact accuracy, and the description may in some respects be applicable to different persons, each of whom claims the legacy, a bill of interpleader may be maintained by the executor. I'' The bill can only be maintained by one in posses- sion, and therefore when an administrator had not reduced the property of the estate to his possession, it was held that he could not compel distributees who claimed adversely to him to interplead and litigate their rights ; ^^ so when from the bill itself it appears that one of the defendants is clearly entitled to the debt or duty claimed, to the exclusion of the other, interpleader is improper ;^2 and so, also, the bill cannot be maintained if complainant claims an interest in the fund in dispute. 1"* When a bill is filed praying for instructions as to the administration of a trust created by will, the fact that a part of the will is not set forth will not render the bill liable to demurrer, provided the portion omitted does not of neces- sity affect the question to be determined.^* When a bill shows affirmatively that neither of the defendants is entitled to the property or fund claimed, a demurrer by one that will virtually decide the cause as to both will be sustained. ^^ The plaintiff should show that each of the defendants claims such a right as they may interplead for, otherwise demurrer is proper. ^'^ When 327 I>-TERPLEADER. ? 114 interpleader is the proper remedy, it should be brought before one of the claimants has recovered judgment therefor. '^ A judgment debtor who has been garnirfheed under attachment issued against property' of the judgment creditor may, in a proper case, maintain a bill of inteapleader.^^ 1 Hayes r. Johnson, 4 Ala. 269. 2 Cadey v. Potter, 55 Barb. 4(« ; Lincoln v. R. & B. Rv. Co. 24 Vt 640. 3 Snodgrass v. Butler, 54 Miss. 49 ; and see Cullen r. Dawson, 24 Minn. 72 ; Leddel's Execr. v. Starr, 20 X. J. Eq. 280. 4 Farley r. Blood, 30 X. H. 360 ; Strange v. Bell, 11 Ga. lOfi ; O. W. V. Co. V. Larcombe, 14 Xev. 53 ; Cogswell v. Armstrong, 77 III. 141. 5 Bell r. Hunt, 3 Barb. Ch. 394 ; Parker v. Barker, 42 X. H. 93. 6 StUlwell V. Commercial Ins. Co. 2 Mo. App. 31. 7 Strange v. Bell, 11 Ga. 106 ; and see Dreyer v. Ranch, 42 How. Pr. 27; Stewart r. Smith, 1 Phila. 42; Richards r. Salter, 6 Johns. Ch. 447 ; Gibson v. Goldthwaite, 7 Ala. 288 ; Burton v. Black, 32 Ga. 59 ; Oil Run Pet. Co. v. Gale, 6 W. Va. 537. 8 Shaw V. Chester, 2 Edw. Ch. 405 ; and see Beck v. Stephani, 9 How. Pr. ir,6 ; Burton v. Black, 32 Ga. 50 ; Wehle v. Bowery Sav. Bk. 8 Jones & S. 98 ; Starling v. Brown, 7 Bush, 165. 9 Shaw T. 'Chester, 2 Edw. Ch. 405; Vosburgh v. Huntington, IS Abb. Pr. 256 ; and seeM. & H. Ry. Co. v. Clute, 4 Paige, 391. 10 Morse v. Stearns, 131 Mass. 3S9 ; generally First Presby. Ch First Presbj'. Soc. 25 Ohio St. 132 ; Chandler r. Dodsou, 52 Mo." 129 11 3rartin v. Mayberry, 1 Dev. Eq. 171. 12 M. & H. Ry. Co. v. Clute, 4 Paige, 392 ; and see Conner v .Weber, 12 Hun, 5^0. 13 Wakeman r. Dickey, 19 Abb. Pr. 27 ; and see Brennan r. L. \V. & L. & G. Ins. Co. 12 Hun, 63 ; Long v. Barker, 8o 111. 434. 14 Putnam i\ Collamore, 109 Mass. 512. 15 Barker v. Swain, 4 Jones Eq. 222 ; and see Starling r. Brown, 7 Bush, 166. 16 Starling v. Brown, 7 Bush, 166. 17 Brown v. "Wilson, 56 Ga. 536 ; Moore v. Hill. 59 Ga. 762 ; and see Prov. Inst, for Savings i'. White, 115 Mass. 112; Perkins v. Guy, 2 Mont. 17 ; Pennypacker's Appeal, 57 Pa. St. 118. IS Webster v. McDaniel, 2 Del. Ch. 297 ; see Pennypacker's Appeal, 57 Pa. St. lis ; Perkins v. Guy, 2 Mont. 17. I 114. "Who may file a bill of interpleader. — When two or more persons claim the same thing by separate and different interests, and another person not knowing to which of the claimants he ought of right to render a debt or duty, or to dehver property in his custody, fears he may be hurt by some of them, he may file a bill of intei-pleader against them.^ He ^114 INTERPLEADER. 328 may file the bill although lie be not actually sued, and although cue of the claims is legal and the other of au equitable nature.^ A mere volunteer who by his own wrong has interfered, against one claimant for the benefit of another, is not entitled to main- tain the bill.=* When the interest of a person is liable to be affected by a suit in chancery it is his right to make himself a party by petition in the nature of a bill of interpleader.* To maintain interpleader it must appear that plaintiff is ignorant of the rights of the respective claimants ; it is only allowed to those who.are in danger of suffering loss by reason of inability to de- termine to whom the money or property belongs, ^ When a bank or other agent holds money or other funds upon deposit, and a honafide doubt is created as to which of several claimants it right- fully belongs, a bill of interpleader may be maintained by the depository, as where the elcpositor, a public officer, upon re- moval from office, claims the fund as his private fund and prop- erty.'' When a stockholder of an insolvent corporation allowed judgments to be taken against himself, in excess of his liability, he is not entitled to a bill of interpleaeler to compel the judgment creditors to litigate their rights thereto.' When the mtTlcer of a note stanels ready to pay it but is ignorant of the rights of the payee and an alleged assignee in bankruptcy of the latter, who claims the amount, he may maintain a bill of interpleader to determine to whom the fund properly belongs.^ The right to maintain the bill must be exercised before the claimants have recovered judgments upon their several claims.^ A bill cannot be maintained by a tax payer to determine in wdiich of two towns he is liable to be taxed. i" So a bill cannot be maintained by a trustee under a will for instructions in the nature of a bill of interpleader, upon questions relating to past administration of the trust.^^ But whenever a trustee doubts as to his safety in complying with any demand of a cestui que trust, or doubts as to any other matter arising in the execution of the trust, his only safe and prudent course is to wait for the direction of a court of equity. ^^ i^ ^ bill of inter- pleader the plaintiff must always admit a title as against him- self in all the defendants ; therefore he cannot maintain a bill 329 IXTEKPLEADER. ? 115 in which he is obliged to state that as to some of the defendants he is a wrong-doer.^-* When a lessee is sued for rent hy a per- son other than his lessor, and fears liability to double payment, he should file his bill of interpleader.^* 1 Stranere r. Bell, 11 Ga. 106 : Oppenheim v. Wolf, 3 Sand. Ch. 571 ; Dows V. Kidder, 84 N. Y. VU ; Presbyterian Hoc. ?•. Staples. 23 Conn. 5.54 ; s?e Russell »-. Church, 65 Pa. St. 14 ; Fowler v. Williams, 20 Ark. 647 ; Winfield v. Bacon, 24 Barb. 162. 2 Strange v. Bell, 11 Ga. 106 ; see Coates v. Koberts, 4 Rawle, 109. 3 U. S. V. Victor, 10 Abb. Pr. 158. 4 :Morriss v. Barclay, 2 Marsh. J. J. 378 ; and see Divers v. Mark, 3 Mo. 81. 5 Trigg V. Hitz, 17 Abb. Pr. 439 ; see Johnson i'. Lewis, 4 Abb. Pr. ^s". S. 151 ; Cheever v. Hodgson, 9 Mo. App. 568. 6 German Exchange Bank ?•. Commrs. 57 How. Pr. 187 ; compare I'. S. Trust Co.?'. Wiley, 41 Barb. 477 ; M"Gaw r. Adams, 14 How. Pr. 462; Cadey r. Potter. 55 Barb. 463 ; Vosburgh r. Huntington, 15 Abb. Pr. 256. 7 Cheever v. Hodgson, 9 Mo. App. 538 ; generally Holmes r. Clark, 46 Vt. 25. 8 Howe Sow. Machine Co. v. Gilford, 66 Barb. o\)S. 9 McKinney v. Kahn, 59 Miss. 187 ; and .see Holmes v. Clark, 46 Vt. 25. 10 Macv V. Xantucket, 121 Mass. '.icl ; and see Dorn r. Fox, 6 Lans. 162. 11 Sohier v. Burr, 127 Mass. 222; and see Proctor v. Heyer, 122 Mass. 528. 12 Dimmock r. Bixby, 20 Pick. 374. 13 Quinn r. Green, 1 Ired. Eq. 22D. 14 McCoy V. Bateman, 8 Xev. 128 ; Vernam r.Smith, 15 :>*. Y. .328. § 115. Ili9 effect of interpleader. — On a bill of inter- pleader there should regularly be a decree that the defendants interplead, and the case then becomes a case between the defendants as between a plaintiff and defendant.^ TThen this decree has been entered the complainant is ousted from tho suit, which proceeds without his aid or interference.- When the claimants to the fund consent to intcrpleal, and a decree is properly entered, the court having the fund under its con- trol may, at the final hearing, shape its decree and distribute the fund so as to do complete equity between the parties." When a bill for an interpleader is filed no relief can be granted until the time for answering has expired ; until then the defend- ants mav come in and answer or demur, and the issues thus ^115 IXTERPLEADEK. 330 raised are disposed of as are other issues.* A court of chancery will not actively interfere to dispose of a fund, except in favor of one who appears either from proof taken or from a pro con- fesso judgment suffei'ed, to be best entitled.^ The parties defendant to a bill for interpleader stand before the court to litigate the questions of right pending between them, to the same extent as if one had brought a bill against the other, predicated upon the same matter and for the same purpose; they may, therefore, settle the matter of controversy between themscdves without regard to the complainant ; ^ and so when one defendant is defaulted the complainant has no right to dis- pute the claim of the other defendant to the fund, nor to object to a decree ia his favor J When one defendant claimed that a larger sum was due from the complainant than the amount paid into court, he was properly allowed to allege that fact by way of a cross-bill.^ "When the bill has been properly filed, and the plaintiff has acted in good faith, as a rule he is entitled to his costs, which ultimately must be paid by the unsuccessful party.** "When the individual rights of a complainant aro affected by the decree he may appeal.^" 1 Rowe V. Adms. of Hoagland, 7 X. J. Eq. 139 ; St. L. L. Ins. Co. v. A. M. L. Ins. Co. 23 Minn. 9. 2 St. L. L. Ins. Co. v. A. M. L. Ins. Co. 23 Minn. 9 ; Perkins v. Lit- tlefield. 40 Ga. 227 ; and see Cogswell v. Armstrong, 77 111. 141 ; First Nat. Bank v. W. R. Ry. Co. 46 Vt. 641 ; George v. Pilcher, 28 Gratt. 300. 3 Whitnev v. Cowan, 55 Miss. 640 ; and see Richards v. Salter, 6 Johns. Ch. 445. 4 Wash'n Life Ins. Co. v. Lawrence, 28 How\ Pr. 435. 5 Pillow V. Aldridge, 4 Humph. 287 ; and see Richards v. Salter, 6 Johns. Ch. 445 ; Cogswell v. Armstrong, 77 111. 141. 6 Horton Exr. v. Baptist Ch. 34 Vt. 312 ; and see First Nut. Bank v. W. R. Ry. Co. 46 Vt. 641. 7 Cogswell V. Armstrong, 77 111. 141. 8 Owen v. Apel, 68 111. 393. 9 Sjirings 7-. S. C. Ins. Co. 8 Wheat. 282 ; generallv Richards v. Sal- ter, 6 Johns. Ch. 445 ; St. Louis L. Ins. Co. v. Ins. Co. 23 Minn. 9 ; Beers V. Spooner, 9 Leigh, 156 ; Tupper v. Cassell, 45 Miss. 353 ; Farley v. Blood, 30 N. H. 3(>0. 10 Cooper v. Jones, 24 Ga. 475. IXDEX. IXDEX. {Tue figures refer to sections and fmhdivisions thereof.) Abandoned and captured property act, right of alien to sue uiuler. 2J. ^. Abatement. See SuE^^VAL of Actions. etil-et of, at common law, 105, ^ effect of. in equity, 105, ^. revival of suit in equity after, effect, 105, ^. meaning of words "after issue joined" in act to prevent, 105, ». filing j)lea of, amounts to appearance. 14. <>. answer in nature of, plea in, effect. 102, '^. plea in, person civilly dead, disability, 29, '^*^. plea in, person alien'enemy, disability. 29, ^". jDlea in, person Indian, disability, 29,'-^. dissolution of cnr2:)Oi'ation, matter of, 91, ^-. action brought in name of firm, 88, ^ non-joinder of partners as defendants, matter of, 89, ', et seq. coverture, disability of, matter of, 63, ^. Action hij husband and icife, when death of latter caused, G3, i«. for tort, when death of latter caused, 65, i^. for tort, when death of latter does not cause. 107. -^ death of latter pending writ of error, effect. 108, ^'. death of former pending appeal, effect in, to't, 09, '^^ death of plaintiff' pending action, effect. 71, ^^. death of solo defendant (statute), 107, '^^. death of defendant in trover, caused, 107, -'-. death of defendant, breach of promise of mari-iage, effect. 107, •^«. death of nominal plaintiff, effect, 107. '^. death of co-plaiutiff' or co-defendant in equitv. effect, 107. '" death of trustee (plaintlft"), effect, 32. -=*. death of petitioner in mandamus causes, 108. '•*. marriage of feme sole plaintiff, causes, 107. ^', et seq. name of guardian, insane, omitted, eft'eet, Gl, i^'. name of party spelled wrong, effect, 3, ^- INDEX. 334 Abatament — Continued. plaintiff transfers interest (Code), effect, g 106, 5. plaintiff transfers interest in equity causes, 106, S 107, ^^. public officer, action by, term of ex^Dires, effect, 47, •', 50, ^. public officer, action by, death or removal of, effect, 107, '^''. relator, death of, action on official bond, causes, 39, ^^. suit for lands by tenant for life, death of, effect, 107. ^*^. death of lessor of plaintiff' in ejectment, effect, 107, ^^. death of sole tenant in writ of right, effect, 107, ^^. trespass quare clausimi fregit, death of co-pkintiff or co- defendant, effuct, 107, '-^K replevin, death of party, effect, 107, ^', ei si^q. plaintiffs non-joinder.' actions on contract, objection, how raised, 100, i*, 102, ^". defendant's non-joinder, actions on contracts, objection, how raised, 100. "^^ 101, ^. non-joinder, when objection by fatal, 103, ^i, et seq. plaintiffs non-joinder of co-executors, effect, 71, ^^. plaintift"'s non-joinder of, in tort, objection how raised, 100, 11, et seq. divorce, death of party after appeal, effect, 108, ii. plaintiff", death of after appeal, action for tort, effect, 108, ^2. of actions, construction of statute to prevent (Md.) 107, '■^'^. statute in relation to, nature of, 105, i**, et seq. second plea not allowed, 100, ~^. Absentee. See Xon-eesident. who is, rule in Louisiana, 29, ''^^. Acceptor of bill of exchange jpayable to drawer, holder may sue, 35, '^'^. Account, bill for, wdio necessary parties, to 24, i. w^ho necessary parties in suit to reach funds in hands of third person, 24, ''. when court of equity will not pass upon merits, 9, •^-. death of joint defendant in effect, 105. ^. against common agent, necessary parties, 24, ^. assignors of equitable chose not 'necessary parties to, 24, ^. by stockholders of corporation, when dire'ctoi-s must, 91, ^^. against guardian by ward, necessary parties, 21, ^, et seq., 24, ', et seq. against guardian, infant, how sues, 57, ^^, et seq. person to receive share of profits for services may maintain, 31, 1'. against partnership, necessary parties, 24, ^, et seq. by i:»artner necessary parties, 25, ^. by partner, member of two firms, 88, ^'^. of partnership affairs, when heir of deceased partner not necessary, 25, ^^. trustee liable to trustor, 33. ^^. Account, bill for — Contiwied. trustee liable to ce:itui, ^ 33, ^'. trustee for benefit of creditors liable to final. 33, ^'^ et seq, against trustee, ci'editors payable in classes, nect8.>arv par- ties, 23, "^u. by creditors, of trust funds, necessary parties, 23, -^. against administrator of deceased trustee, necessai-%- parties, 23, •''». against executor of deceased trustee, appointment of new, necessaiy parties, 23, ^. debtor not liable to separate suits upon at same time, 34, ". given as collateral security, who not necessary party to action upon, 24, ^'^. suit on administrator's bond for failure to file, defense, 75. until settlement, partner may not sue co-partner, 88, ^*. Action, to recover assets, estate 'of decedent, who may prose- cute, 22, ^, et seq. none in favor of administrator against the estate, 77. administrator against none until claim presented, 15. administrator against, prematurely brought, how taken ad- vantage of, 75. administrator against, joint against, death of one, effect, 75. administrator against, when not necessary, 74. administrator against, pendente lite for services. 75. administrator against, in individual capacity, 74. administrator against, pleadings, amendment of, extent, 74. administrator a-rainst, what claims joined, 75. administrator against, when commenced, 75. administrator against, former, when administrator de bonis non may bring, 77. administrator against, when against in official capacity-, 74. on administrator's bond, what is breach of, 75. on administrator's bond, who may sue for devastavit, 75. administrator for devastavit, who' not parties to, 75. administrator foreign, when lies against, 74. alien, when may maintain, 29, ^, et seq. alien against, in State court removed to federal court, 29, ^^. ambassador foreign, may maintain. 29, 2. appearance general to, what is, 14, ^ et seq. bailor and bailee, generally by and against. 87. capacities, may be against person in several difterent, 4, '". on the case, Code, what are, 9, ■*. two causes of, united in same complaint, 9, ^. two causes of, united in same complaint, when, 103, ^. cause in favor of each or either of two persons, joint, improp'.-r, 102, -. common law. abatement, eftect. 105, ^ court, improperly removed, appearance, effect of, IG, '-. INDEX. 33G Action— Coniimied. upon contract, brought in wkose name, § 31, ^ et seq. upon contract, who may maintain, 'A2, '^, et seq. upon contract, for benefit of third person, who mav main- tain, 37, J, 94, •*, et seq. upon contract, non-joinder of defendant, objection how raised at common law, 100, -^. for breach of parol contract for sale of land passes to exe- cutor, 107, ^. by a corporation, generally, 90. by a corporation, name changed pending, waived. 3, '^^. ill favor of insurance company, negligence of third person, when right accrues, 38, ^^. when foreign corporation may maintain, 80, ^. against a corporation, genei'ally, 91. against a corporation, form of, 91, ^i. against a county, how brought, 42, i, et seq. again 'it acounty, no manner pointed out by statute, remedy, 42, 2. against a new county when lies in favor of old, 42, '. for damages for causing death of person in another State, 72, «. upon split demand, who may sue, 31, ^^, et seq. as rule not dismissed upon opening statement of criunstl, 8, 1^ when must not be dismissed without trial, 102, '^. mav be dismissed against resident and proceed against non- resident, 10, ^». ejectment plaintiff must have title to support, 9. •^-. to recover possession of leased premises, death of plaintiff, effect, 79, i". for foreclosure, when purchaser pending made party to, 5, ^, et seq. for forclosure by junior lien holder, when elder may be made party to,' 5, ^. by or against heirs, devisees, or legatees, 78. for destruction of title eleeds, heir party to, 78, '^^. for preservation of legacy, when legatee may maintain before payable. 78, ^'^. separate by legatees to recover his share of one collecteel uneler joint power of attorney. 78, ^^. as rule will not lie against heir'in first instance, 75. when heir may defend, 75. when husband and wife join, G3, K when husband sues alone, 63, '■^. by husband and wife upon contract, when proper, 63, S et seq. by husband and wife, debt due latter, effect of her death, 63, 18, et seq. 337 i^'^EX. Action — Continued. husband has for enticing away wife, § 65, ^. by husband for enticing away wife when no recovery, G5, 2*5, et seq. two at common law for injury to wife, 65, '', et seq. two for slander to husband and wife, 65, ^". wiie has none for enticing away husband, 65, 22. wife has none as nile at law against husband, 67, ^. none at common law by infant against guardian, 57, ^^, d seq. to enforce right of infant should be in his name, 56, ^ et spq. by infant in own name alone, irregularity cured by verdict, '57, ^ et seq. none in forma pauperis for infant by next friend, 56, "^, ct seq. who may maintain for service rendered by minor, 83, ^ upon instrument, when interest must be shown, 31, ^-. a person must have an interest in the matter in controversy to maintain, 30, •*, et seq. what interest sufldcient, 31, ^^, ct seq. bare possibility not sufficient, 31, ^i. of detinue, what title plaintiff must have to maintain, 81, -'. general rule must be in name of real partv in interest, 31, K "prosecuted" in name of real party in interest meaning of term, 31, ^ at law, bill to enjoin, necessary parties, 28, *^. when iatervenor may not come in and prosecute, 109, ^^. intervenor must take as he finds it, 111, ■*. must not delay, 111, ^. may not object to form of, 111, ^. when intervention proper, 110, ^. at what stage, 107, «. when takes place in, 108, *. only takes place in civil, 109, 1^. when dismissed, 109, i'. relating to land of decedent, 73. to set aside tax sale of lands cf intestate, 78, '^. who may maintain for injury to leased premises, 79, ^\ ". injurv resulting from act made misdemeanor by statute is the" subject of, 38, 21. who may maintain for breach of covenant to pay mortgage after death of covenantee, 78, -^. upon mortgage to several persons to secure several debts, how brought, 82, ^", et seq. name of party to civil, set out in record, 3, ^ by non-resident, no security for costs, effect, 8, ^^. by one partner for injury to firm property, recovery, 88, '*•'. Part IKS — "2 J INDEX. 338 Action — Continued. partner may confess judgment in, pending, ^ £9, '^K against partners generally, 89. by partnership, in Avbose^iame broiiglit, 88, ^, et seq. •who are parties to an, 1, i, et .-ieq. Code, does not abate by reason of death or other disability of a party, 106, «. personal representatives not bound until brought into court, 106, 1". when new party not bound by, 104, ^. pending, extent of substitution of parties to, 106, ^^ et seq, personal as a rule do not survive, 107, ^j, et seq. for personal injury resulting from negligence does not sur- vive, 107, 23. personal, where enforced, 9, ^^ death of plaintiff before commencement of, how taken advantage of, 107, ^ nominal plaintiff has what control over, 2, ', ct seq. when may control and dismiss, etc., 2, 2. prosecuted by public officer, death or removal from office. effect, 107, ^'. by receiver for corporation, when authority of must appear, 90, 21. against executor, judgment, 77. brought in whose name, 52, ^, et seq. %Yhen receiver is a trespasser how may be sued, 52 ^-. extent of rule made against receiver, 52, ^^, et seq when foreign receiver may not maintain, 52, ^*'. death of relator upon official bond, effect, 39, i-. for rent, when may bo maintained, 79, ^^. for restitution of premises, when joint, 79, ^'K revival of, effect, 107, s^^. death of sole defendant when action will not be revived, 105, 11. for specific performance of contract to convey lands, when plaintiff dies who revives, 78, '■^^. one of several appellants dies after appeal perfected, v/ho may revive, 108, s. possessory, who revived against, 76. against sheriff for default of deputy, Avhen survives, 7G. no joiut, against sheriff and predecessor, 51, "". by State, form, etc., 39, '■^. against State, none without consent, 40, '', et seq. none lies for lawful act done upon land by the owner, SO, 1. for maliciously burning building of plaintiff, amount of recovery, 38, 1^. real, death of defendant in, effect, 105, *. how tenants in common should sue, 82, ^^ ci seq. 339 EfDEX. Action — Contimcea. t J remove cloud from title, when remainder man mav sue as next friend, ^J 79, ^\ i-^. joint, none for slander, 95, ^^. for trespass upon crop, when tenant may maintain against landlord, 79, ^■°. joint, when proper for trespasses of cattle, 98, ^ et sen. when widow may be sued as tutrix, 74. effect of release of one joint wrong-doer, 98, >". against wrong-doer, joinder of plaintiffs, 9"'. ". Actors, all parties to suits of partition are, 28, i^, 82, ^K Acts, of agent, principal liable for what, 85, i, et seq. of servant, master liable for, 83, ^^. of servant, when master not liable for, 83, ^'. Administration, when closed no action lies in favor of creditor, 75. Administrator, action for conversion, survival of against, 76. wasting assets, who may apply for receiver, 75. subsequent discovery of will, effect, 71, ''. deceased, devastavit,*^ suit against suretv, who made partv, 22, 1^. - L . representatives and sureties of cannot be joined in action for devastavit of the former administrator, 75. devastavit, extent of recovery against by administrator de bonis non, 77. after payment of debts, trustee for next of kin, 77, 78, '•'. duty of,' with relation to lauds of decedent, 78, ^-. no claim against heirs for commissions. 72, '^'^. action against to tiT title to lands, heirs necessarv parties, 22, 11. ' . i ' when need not be joined with heir in suit against, 22, -', C't seq. infant cannot appoint, 5G, i. when may not compel interpleader, 113, n. when attorney may not intervene in suit by, 110, "**. when not liable to pay judgment against the estate, 72, -'. when not personally liable for money collected, 75 of mortgagee, party to foreclose suit, 27, *^. necessary party to suit for account of personal assets, 22, ^1, et seq. vrhen necessary party to suit to reach assets devised, 22, --^ et seq. necessary party to suit to recover property in hands of donee of decedent, 22, ^% et seq. of grantor, when not necessary party to suit to set aside conveyance, 26, ^^ when necessary party to judgment debtor, bill to reach property in liands of heir, 24, -'*. INDEX. 340 Administrator — Continued. of co-tenant not.necessaryparty to suit for partition, § 28, ^'\ of deceased trustee necessary partie?, suit for account, 23, ^^. of vendee dying pending suit to set aside conveyance need not be made party, 26, ^s. of vendor, necessary parties to suit to enforce contract for sale of lands, 26, i", et seq. of vendor, suit by to enforce lien for purchase j)rice of land, heirs of vendor made parties, 27, ^ ■plea of fully administered found in favor of, effect, 77. none, death of j)arty after apj^eal, review against heirs, 108, ». death of pfaintiff when co-defendant entitled to revive suit in own name as, 71, 2". ■when mav revive and enforce suit alone for injury to wife, 65, ^K ' when mav revive suit abated by death of wife pending action, 63, i«. possessory action revived against, 76. settlement of necessarv parties to bill to set aside on ground of fraud, 78, i". substitution of party on death of j)laintiff bv ex i>arte motion, 106, 2. substitution as plaintiff when too late for defendant to object, 106, i«. of defendant cannot apply to be substituted as part^% remedv, 106, ^1. when not substituted to rights of judgment creditor. 72, '^, action against sheriff for default of deputy whtii si;rvivcs against, 76. time when may be sued begins when, 75. widow sued as tutrix should be made ^^artj' as administra- trix when, 74. may sue co-administrator for debt due estate when, 77. when mav recover excess paid creditor of insolvent estate, 72, 23. ' suit bv to recover over advances to distributee, necessarv party, 22, 2?. when defendant admits right to sue. 71, ^. when right to sue not admitted, 71, *^. when may maintain ejectment, 73, 78, -'^ cannot sue the estate at law, 77. Avhen should sue for injui-y to estate, 72, *^. when his individual creditors levy on goods of estate may enjoin sale, 72, 1^. on death of plaintiff after judgment may sue out writ of eiTor, 71, 21. 341 INDEX. Administrator — Continued. when may maiutaiu i)etition for forcible entrv and detainer, I 73. ■when may sue heir for trespass on land, 73. land taken for public use, may sue for damages, 73. may foreclose mortgage due e'state, 73. when may file bill to redeem mortgaged premises, 73. when may bring suits for rent, 73. of insolvent estate, when may enjoia tenant from sul>let- ting lands, 73. when may join with surviving tenant in common to recover for land sold, 73. must sue for tort generally, or conversion of property of decedent in his lifetime, 78, *. when may sue for tresspass on land, 73. when maV sue to enforce trust created by decedent, 73, may enforce vendor's lien, 73. of wife may sue alone for injury causing her death, G5, '^. and heirs sued for on account, when, 77. assault and battery by decedent, action lies when, 7G. need not be sued alone for breach of bond, 75. after payment of debts liable directly, or on bond, 77. when suit against in individual capacity, pleading may be amended how, 74. when suit against in official capacity. 74. may be sued for debts of decedent, '75. is proper defendant in suit to enforce claim against estate, 22, 12. action against, none until claim presented, 75. actions against, what claims joined, 75. who joined as defendants with in equitable suit, 22, '^*, et spq. duty of as defendant, 75. whe'n heir may maintain ejectment against, 76. when heir may sue for rents of lands collected, 73, ^", -i. bill against by next of km for settlement of estate, neces- sary parties, 22, •**>. propt-rly made defendant with heirs in suits to enforce contract to convey lands, 78, 2». action against prematurely brought, how taken advantage of, 75, Administrator or executor, is full representative of creditors, 71, K holding note due third person from the estate and refusing to deliver or pay, effect, 76. generally actions by, 71 and 72. must bring action for the estate, 72. ^ must sue for damages for deatli caused by negligence, 72. '"'. may maintain suit for breach of contract to convey lands, 73. INDEX. 3i2 Administrator or Executor — Continued. when should bring action on contract in representative capacity, when may elect, g 72. ^-, H seq. may sue upon judgment in individual capacity, 72, '^. suits against, generally, li. actions against for torts, 75. Avhen decedent dies after verdict should be substituted as party, 74. Administrator de bonis non, when may sue former adminis- trator, 77. extent of recovery against former administrator, for devastavit, 77. when mav recover property mis-appropriated bv executor, 72, ^^ " when may recover from creditor amount overpaid, 72. '^* suit by to subject lands sold by predecessor to payment of the purchase money, proper parties, 2G, ^". Administrator joint, death of one, who may sue on bond, 77. one refusing to be made plaintiff maybe made defendant, G, *, et seq. non-resident not joined as plaintiff, 71, ^^ when may be sued for debt due estate, 77. death of, when suggested, suit for devastavit may proceed against survivor, 75. when representative of, mav be sued alone for distributive share, 77. Administatcr or executor joint, suit brought by one, how defect taken advantage of, 71, i". Administrator foreign, cannot transfer note and mortgage and enable assignee to sue, 35, -^^ when action cannot be revived against, 105, ^'. common law, no action lies cither by or against, 71, ^S 74. statute, may sue and be sued, 71, J^. rule as to suits by in Georgia, 71, i". wlien may sue on judgment, 71, ^^ Administrator pendente lite, action against, 75. Administrator special, no power to appoint to defend particu- lar suit, 105. i«. Administrator's bond. See Bond. Admissions, of guardian adlltem of infant defendant, no effect, 58, --'i, (0, a, Advers3 claimant, not proper party to foreclosure suit, 27, ■■^". Adverse claim, of title when one tenant in common may main- tain suit against co-tenant to determine, 82, ^. After issue joined, meaning of words in al)atement act, 105, ^. Agency, as a rule agents cannot sue respecting subject-matter of, 84, ^1. see principal and action by generally, 84. I 343 i>-DEX. Agency — Continued. common, who parties to an action for an account, § 2i, K when lepresentative of, necessary party to suit for account, 22, -^^ el stq. as a rule cannot sue in own name, 84, ^^ action in name of when amendment proper, 8. 'i. suing as plaintiff should di^^close name f)f principal, 84, ^. action commenced bv, principal may be substituted for, lOU. K for collection, when bank i.s, 85, '-^'^ for collection, when may recover from principal monty paid liim on forged uot'e, 85, '^'-. for cijUection, when may be charged as trustee, So, "^ defense in action for funds cfdlected, 84, ^■'. who may sue upon contract by, 84, ^, et seq. when may sue in own name upon contracts, 84, ^, ^', et seq. principal undisclosed, either may sue upon contract, 3, '". when need not be party to suit to enforce contract to con- vey lands, 26, ''. when contract of. binds both self and principal, 85, ''. when personally liable on contract, 85, ^^, et seq. public, effect of contract of. 85, '^ et seq. contract made to, for benefit of town, latter may sue, 45, '". of corporation, latter must act ly, 91, ^■-. of corporation, when may bind bV contract. 91, ^^, et seq. of corporation, when latter liable for tortious acts of, 91, ^^, et seq. note made to "A. B., agent," who sue on, 84, ^. places notes in hands of collector, may sue for proceeds, 84, la. action upon note by, defenses by maker, 84. i", et seq. when officers engaged in jocrformance of duty for city are to be regarded as its. 44. ■^. insolvent partner made party defendant in suit by partner when, 55, ^'^. generally mere, not proper party to suit unless, 24, ^^. mere, when need not be party to suit to enforce mechanic's lien, 27, i«. need not be party to action to enforce vendor's lien 27, ^-. when money ovei-paid to, effect of payment to principal. So, 11 J5_ who accepts part of price of goods sold, before due receives as loan, 85, ^'''. when principal may recover purchase price of goods sold by, 84, 2u. as rule principal cannot sue for money collected by, until demand, 85, -^. when principal may treat as trustee of securities held, 85, -'. Agency — Coniimied. principal liable for acts of, § 85, i, et seq. when acts of, in excess of authority bind principal, 85, ". husband acting as, when wife willnot be treated as princi- pal, 68, ^«. employed by two principals, when latter liable jointly or severally, '85, **. when may bind principal by written instrument made in own name, 85, *^. State cannot be brought into court by means of actions against its, 40, ^^. iliens, both parties to contract are, mav enforce in State court, 29, ^\ presumption as to citizenship, 29, *. resident of State entitled to benefit of insolvent laws, 55, ^ rights as to immovable property, 29, ^. when may sue, 29, ■*, et seq. right to sue under the abandoned and captured property act, 29, «. sued in State court not entitled to have suit dismissed on that ground, 29, '^^. sued in State court may remove suit to federal court, 29, ^. Alien enemy, plaintiff is, effect, 29, '^. plaintiff is, common-law rule, 29, i", et seq. plaintiff becomes, after suit brought, effect common law, 29, ". may be sued in our courts, 29, '^, et seq. rights of, when sued, 29, i^. Alienage, plea of, requisites, 29, ^ et seq. Allegations in bill of interpleader, 112, ». Ambassador, foreign. See Foreign A^rBAssADOR. wlien may sue in our courts, 29, 2. Amendment, action in name of agent, when proper, 8, ^i. on appeal may not make new case against new parties, 106, -^K after cause remanded from supreme court in action for tort, 102, '. when matter of discretion, 103, i^ et seq., 102, 1^. misjoinder of defendants in action upon contract, effect, 103, ', et seq. defendant's non-joinder of, cured by, 108, ". ct seq. of bill for want of parties, practice, 102, ^^, ^^ et seq. instanter upon misnomer proved, 3, ^'^. failure to set out name of party to action cannot be cured by, 3, 1. of writ by striking out name, 3, i"*. name of nominal partv stricken out bv. 100, ^2. new parties usually made bv, 104, ^e. " ' 315 i>'DEX, Amendment — Continued. new parties could not be made by, at common law, I 102, ^i. after decree reversed, new parties, 103, ^, 102, '*'^, ei seq. service of process not sufficient to make person party, 104, K upon death of nominal plaintiff, foi'mal only, 107, 2, et ^eq. death of co-plaintift" or defendant in equitv, cause open for, 107, 1'. pleadings against administrator in individual capacitv may be, 7i. extent of, in substituting parties to pending action, 108, ", et seq. Answer, failure to raise objection for misjoinder of plaintiff.^. effect, 100, ^ defect of parties plaintiff shown by, effect. 102, ^^. misjoinder of defendants, raised by, 100, ^^ et seq. non-joinder of parties, when proper method of raising, objection, 100, i". non-joinder of defendants, objection when raised by, 100, ^'-. showing non-joinder, new parties made, 104, **, et seq. wife unites with husband in, when jointly sued, equitv, 69, ^ of wife made jointly with husband, when she is not bound by, 69, «. when wife may, separately in equity, 69, ^. Appeal, amendment not allowed to make new case against new parties, 106. -\ action against administrator, time during which suit may be brought, 75. taken in name of assignee, interest transferred after judg- ment, 108, 1^ r)laintift' becomes bankrupt after judgment and before, eftl'Ct, 53, i«. appelant becomes bankrupt, assignee substituted, 108, ^". discharge of bankrupt pending. eflVct, 5i, ^^. plaintiff becomes bankrupt after submission of cause, effect, 53, ^'J perfected, one of several appellants dies after, who may revive, 108, =. who may prosecute party dving after judgment, 108, ", 71. ". death of plaintiff in action for injury to person jjending, effect, 108, 1. party to action for divorce dies pending, effect, 108. !•. death of party after, no administrator, revivor. 108, ^. defendant having beneficial interest mav file bill of revivor, 105, -1. when in interpleader, 115, ^". INDEX. 3ij kp'pe&l— Contimied. right of interveiior to, § 111, ^s. intervt'Utioii must take place before, 109, ^'^. lies from what orders made in intervention. 111, 2*'. when two are taken jurisdiction of coi;rt to decide, 111, ^". only dismissed by consent of all parties. 111, '^^. death of party after submission of cause and before d-cision, 108, i«. when governor may prosecute, 48, ^. court may appoint new guardian ad litem for infant, 58, ^^, ejectment against husband and wife for lands of latter, death of former pending, effect. G9, ^^ husband joins wife in, effect, 1, ^^. in name of partnership, when names of partners substi- tuted, 106, 26. misjoinder of plaintiffs in action for tort, cause remanded with leave to amend, 102, '. when too late for stranger to insist en being made party that he may, 104, i^. wife, sufficient authorization, 69, ^. who may on motion to correct a judgment, 7, ^'^. Appearance, ciuse irregularly transmitted from iirferior to superior court, when cured l)y, 16, ^'^. of corporation how made, 16, K of defendant to action, effect. 16, ^, et seq. by attorney ""for defendants" part not served, effect, 15, ^^. of defendant after default, effect of. IG, i**. et seq. several defendants one for all, effect. 15, ^*, et seq. defendant may make voluntary, 11, ^, 15, ^ et seq. by infant how made. 15, ^^, et seq. of infant guardian cannot enter, 15, ^2. of insane infant, how made, 15, ", et seq. by insane person or idiot, how made, 15, ". w^hen not an intervention. 109, ^. may be personal or by counsel, but not both, 15, *, et seq. by non-resident, effect. 16, ^^ not sufficient to make person party to an action, 1, ^ et seq. of United States, how enforceet, IL 1. general to action, what is, 14, 1, et seq. general, filing plea in abatement is, H,,*". general, prosecuting appeal or writ of error, amounts to, 14, ', et seq. general, when motion to quash attachment is not, 14, ^". general, indorsement by counsel on original bill, when amounts to, 14. °. general, filing general demurrer amounts to, 14. *, et seq. general, presumed unless contrary appears, 14, ^5. general, waiver of objections, 16, X d seq. 347 rNT>EX. Appearance — Continued. general, -wliat does not waive, § 16, ', ei seq. special, what is, 14, ^, et seq. special, when not abaudoued, IG, *'. special, form sufficient, li, ^'. special, motion to dismiss action for want of service of process, 14, ^■*. special, objection that no summons issued within proper time, 14, ^\ special, objections to manner of service is, 14, ^-. et i^eq. special, should be confined to particular object, 14. ^*'. 16. ■•. special, bv attorney, for part of defendants, effect of signing name, '-for defendants." 15. i'. withdrawal of. effect. 17, *, et seq. withdrawn when default proper, 17, ^. withdrawal, manner of, 17, ^, et .^eq. withdrawal, matter of discretion of court, 17, ^. et seq. withdrawal in appellate court, 17, '^. Appellant, becomes bankrupt after appeal perfected, assignee substituted, 108, i». one of several dies after appeal perfected, who may have cause revived, lOS, ^. Application, to other decree eni'olled, court will not entertain except, 9, ^i. to 1)6 made party to pending suit, when denied, 5, ^^. Appointment of guardian ad litem for infant, when made, 58, **. of guardian ad litem for insane defendant, when, 62, *. and defence bv guardian ad Litem of infant, what equivalent to, 5S. 12. of guardian ad litem for infant, motion for, when made bv plaintiff, 58, ^^ of guardian ad litem for infant defendant, effect of omis- sion, 60, *>, et sq. of euardian ad litem for infant should appear of record, 58, 1", etseq.. 60, «. of receiver pending suit, how continued, name. 52, ' , et seq. of trustee who may intervene to prevent, liO, -*'. Arbitration, rights of'infant cannot be bound by, 53, '^, et seq. A:sault and battery, action for against administrator of wrong-doer lit s when, 76. death of plaintiff" after appeal, effect, 108. ^''. Assessment, citv, monev overpaid, action will lie to recover back. 44. 23, et seq' city, bill to restrain collection of, necessary party. 28. -'^. by corporation, suit by assignor of shai-es 'against assignee for relief, necessary party, 25, ^'^. Assets, unpaid subscriptions to corporation, assignee of bank- rupt should sue for, 54, '^, et seq. INDEX. 3i8 Assetts — Continued. devised, who trade parties to suit to reach, ^ 22, ^'^, et ssq. of estate of decedent, who proper person to recover, 22, K administration of bill for account of, 77, 22, ^i. after payment of debts administrator is trustee for next of kin, 77. administrator wasting, who may spply for appointment of receiver, 75. necessary party to suit by assignee to recover, distributive share, '22, ■*«, et seq. when co-executor liable for, 77. bill to reach, when representatives of deceased co-executor not necessary party, 22, ^^. foreign administrator has assets, no revivor, 105, i'. action relating to, when heirs should be parties, 22, ^^, et .se^. when rents are, 73. Assignment, after bankrupt cannot be party to action, 53, ^. certified copy of evidence of title of assignment of bank- rupt, etc., 53, *. of portion of claim, suit by assignor, 24, ^•'. verbal, of contract to convey land may be enforced, 3G, ^'. of lease, siifQcif ncy of, 36, -^. of note, carriers' security, but assignment of mortgage, 36, 2^. verbal, holder of note by, may sue as real party in interest, 35, 5, et seq. of non-negotiable chose in action common law, who sue, 34:, ^ et seq. of right of action for malicious prosecution, none, 38, ^^. what rights of action for torts are capable of, 38, ^^, et seq. pleading in trover, when cannot be amended, 38, ♦>. Assignee, of account, debtor not liable to suits by both assignor and, 34, n. of foreign administrator cannot sue upon note and mort- gage, 35, ^^ of interest in pending action transferred after judgment applied, 108, i*. right to sue upon bond, 36, i^, et seq. when suit of, for part interest in bond no bar to suit for whole interest, 36, i«. of contract for sale of lands, necessary parties to suit to enforce, 26, «. by parol of contract to convey lands, specific performance, 86, 1', et seq. of corporation, bill to enforce liabilitv of stockholder, when _ necessary party, 25, ^". rights of, in relation to suits upr)n covenants relating to real property, 36, 2=*, et seq. of defendant pending suit, made party how, 11, '. 319 INDEX. Assignee — Continued. wiieu may recover money advanced for assignment of de- mand, fraud, etc., § 84, i'. of demand, when is real party in interest under Code, 34, ^'-. when may sue upon split demand, 31, '^'■^, etseq., 34, ^■^, et ^(^q. when may sue in equity, 31, '^. of part of claim not necessary party to suit thereon. 24. »'- of chose in action may sue in name of assignor, 8,'-',(t .- . 7. right to intervene, 110, '. of note, when may intervene in suit upon, 110, ^*. of notes, when may intervene in suit on trust deed. 110. -•. of judgment suit upon, in whose name, 36. ■*', et seq. of mechanic's lien may sue in own name, 34, ^". of mortgagee, bill by, 'to redeem, necessary parties, 28, *'. when as-ignor sues for, upon chose, 34, '^, et i. of decedent cannot be substituted as party without notice, 106, =*. Parti K.S- so INDEX. 330 Assignee — Continued. of purchaser at sheriffs sale may not be substituted as party, ^ lOG, ^'. of right of action for tort, when may sue in own name, 38, ^^. may sue for conversion of trees in anotlier State, 38. ^'. Assignee of bankrupt, must sue upon claims and demands of, 34, -\ (4 .seg. mav sue to recover property conveyed to defraud creditors, 53, '. may sue to set aside fraudulent conveyance, 53, ^. unpaid subscriptions to corporation, part of assets, he may sue for, 54, 2, et seq. may sue in any court, 53, ^. when may not proceed in federal court against sheriff, 53, ^^. represents both latter and creditors, 53, i^. failure to sue for assets for two years, effect, 54, ^. refusal to prosecute suit, remedy of creditors, 53, ^, rt seq, purchaser of demand from, may sue in name of, 34, '^''^. when purchaser of property may sue for in own name, 54, ^, et seq. when may not avail himself of Statute of Limitations, 53, 1*. may sue to recover money fraudulently paid bv bankrupt, 53, «. may sue in own name, 53, &. when may sue in own name upon note transferred, 53. ^. necessary party to suil on note to several payees, 24, ^^. and solvent partners should by joined in action upon bond, 54, ^. when necessary party to suit to recover firm assets, 25, ". when plea of payment to latter, no defense in action by former, 53, i^. evidence of right to sue, 53, ^. fiduciary character has ceased, effect, 34, 25. bankruptcy suggested, substitution proper, 53, i', et seq. substitution proper in suit against co-partner for dissolu- tion, 54, ^, appellant becomes bankrupt after appeal perfected, substi- tution, 108, 1". Assignee of foreign bankrupt, when cannot sue for propertv of estate. 31, '^K Assignee for benefit of creditors, when separate creditor may sue for covcnent broken, 34, -". suit against by cestids for account, necessary party, 23, ^^. Assignee of insolvent, necessary partv to suit relating to estate of, 24, ••^«, et seq. debtor, suit to recover property of the estate, proper par- ties, 24, ^^, et seq. 351 ^^^^^• Assignee of Insolvent— Coyitinued. eurp(jrati(ui, wlieii creditor may join with corporation to set aside proceedings in insolvency, ^ 55, **. should be defendant in suit to set aside" lease, 55, ^•'. Assignor, of account given as collateral security, not necessary party to suit, 24, *^ of acc()unt, debtor not liable to suits by both assignee and, 34, 1'. of bond for title not necessary party to suit for convey- ance, 26, •*, et seq. how sues upon chose not assignable at common law, 3-1, -. may demand indemnity from costs, 8, ^, 34, *. of chose in action, when necessary party to suit on, 24, -"^ of contract, when need not be made i)ai-tv to suit thereon, 2U, ^. of shares of corporation, suit for iudemnity from future assessments, latter not necessary party, 25, ^^. when liable to assignee for money uuvanced for assignment of demand, 34, ^'. when necessary party to suit, 24, ^". when made party to suit to enjoin collection of note assigned to ficticious person, 35, ^'. of note, when made party to suit by debtor to redeem prop- ert>^ pledged, 28, >*. in achon on non-negotiable note assignee only may sue, 35, 1, et scq. of unnegotiable note, holds title as trustee, 23, ^^. offset to claim of assignee no reason for making i^artv to suit of, 24, »2, for benefit of creditors, necessary partv to suit bv cestuis for account, 23. i». Associations voluntary, part members refusing to join as piaintifis in suit, efitct, G, ''. Assumpsit, two corporations may unitein action of, 90, ^■^. misjoinder of plaintiffs, effect, 202, ^. when action of will not lie by partner against co-partner, 88, 1*. when tort may be waived and suit brought in, 81, ^, et i^eq. when mav he maintained against executor of deceased tort feasor, 81, 6. Attachment, right of assignee to intervene in suit, 110, '. rights of intervenor in suit. 111. ^'^. rights of intervenor, when bonds i:)roperty, 111, >*. necessarv to acquire jurisdiction over foreign corporation, 91, », etsiq. when morion to quas}\ not general appearance, 14. i", et seq. goods taken from possession of sheriff, effect, 51, •>. sheriff', liability for failure to levy, 51, ^*^, et seq. INDEX. 352 Attachment— Co7i/mwed. wrongful, when joint action for damages against principal and sureties, § 86, i«, ^". Attorney, corporation can only appear by, 15, ^. county not liable to, for defense of pauper prisoner, 42, i'. defendant may ajDpear by, 15, ^. defendant may not apj^ear personally and by, 15, ^. defendant appearing must by, be heard through, 15, '. signature of for defendants, part not served, effect, 15, ^ j, i'. infant defendant may not appoint to defend action, 58, 2. insane infant may not appear in action by, 15, ^*^. when infant liable to, for defending bastardy proceedings, 59, K may not bring infant into court by stipulation, 15, ^"*. defense of insane person made by, G2, ^ when may not intervene in suit by administrator, 110, ^^. mav not recover of guardian of insane person for services, .02, 12. guardian ad litem for infant may employ, 56, ■-'^, to sell lands substitutes another, who sues for price, 84, 21. Avhen no fraud need not be party to suit to restrain enforce- ment of judgment, 28, ^^. when not necessary party to action, 24, °'^, etseq. next friend of infant may employ, 56. ^^. treasurer may not restrain special to prosecute tax collector, 50, * who liable to, for services in prosecuting action for divorce by wife, G8, ^', et seq. Attorney-general, proper person to institute suit upon bond of ck-rk of State prison, 48, •>. proper person to bring action to impeach validity of corpo- ration, 91, ^", et seq. must institute suit to set aside patent for lands issued bv United States, 48, ^ and county attorney may use name of State to pursue anv remedy, 48, •*. cannot use name of State to pursue funds of county, 48, ••. Attorney in fact, is not a trustee, not necessary party to repi-e- sent rights of principal, 24, ^i, of executor, cannot sue for estate, 84, 1^, Authority, of agent, when principal bound by acts in excess of, 85, ^. Authorities, city, injunction against contract, lowest bidder, proper parties, 28, ^^. Authorization, of wife to appeal, sufficient, 69, ^. of wife to sue when presumed, 63, ^'^. of wife to sue, what is sufficient, 63, ^". of wife to be sued, 69, 1, et seq. 353 INDEX. Bailed property, jaiut owners to unite in action for its recov- ery, ^ U5, 1^. ■ulieu act of infant amounts to conversion of, 59, ^*. Bailee, when may sue common carrier for delivery of goods to consignee, '87, ■*. when may sue for injury to property in his possession, 87, i. of monev received to use of certain pei-son, liable to latter for, 87", la. of sheep, may sue for possession of or injury to, 87, ^^ Avhen guilty of conversion, 87, -i. of goods, defense for failure to deliver, 87, '^'^. of property, when should he demanded, before right of action accrues against, 87, -". naked, need not be joined defendant with administrator, 22, 1^. action against, substitution of principal as defendant (Cod;'), 106, la. Bailor and bailee, suits by and against, 87. Bank, liability upon certificate of deposit, 91, '", et seq. eX-et of depositing draft with, 85. -^. liability for refusal to pay check, 91, i', et seq. liability for payment of forged check, 91, ^^j et seq. Bankrupt. " See Insgla-ent ; Assignee of. assignee of, represents both former and creditors, 53, ^-. assignee of, must sue upon claims and demands of estate, 31, '^1, et seq. appellant becomes, after submission of cause to supremo court, effect, 53. -^. corporation, who may direct filing petition for, 54, ^ when pavraent of debt to, no defense to action bv assignee of, 53." 1=^. defendant in judgment is, effect on motion to amend, 5i. '^. partner, application for discharge, accountable for what acts of co-partner, 54. '. discharge of, effect, 5-i, ^^ et seq. discharge of, pending appeal, effect, 54, ^^. discharge of. when creditor may attack in State court for fraud. 51. ''. plea of discharge personal to, 54. '^, et stq. mav lilc plea of discharge at anv time before judgment, 54, '-. monev fvaudul.mtlv paid by assignee of, may sue to recover. 53. «*. when may sue upon note in own name, 53. •*. when purchaser of property of, may sue in ovsai name. 54, ^. et seq. when one of several payees is, not necessary party to suit on note, 24, "*". Bankrupt — Continued. partner, when assignee of, necessary party to suit to recover firm assets, § 25, ^. property devised in trust, for suit to subject to payment of debt, necessary parties, 23, 2^. when may be nominal party to an action, 53, ^, et scq. when cannot be real party to an action, 53, ^ et seq. plaintiff' in pcmding suit becomes, effect, 53, ^^, et seq. plaint-iff becomes after judgment, and before appeal, effect, 53, ^^. fact of suggested, effect, substitution, 53, i' et seq. appellant becomes after app3ai perlecied. assignee substi- tuted, 108, 1". partner suing co-partner for dissolution becomes, substi- tution of assignee proper, 54, <^. Bastard, bond fur support of given to town, latter divided, set- tlement in new town, suit on bond, 45. '. Bidder, lowest, contract city authorities, injunction against to prevent giving to one not, who not proper party, 28, ^j. Bill for an acsouut of administration of assets, Avho may maiii- tain, 77. of pei'sonal assets of estate of decedent, who necessary parties, 22, ^1. et seq. may be maintained between joint executors, 77. guardian and sureties sued jointly in, 86. ^^. wlien will lie against one surety of guardian alone, 86, •^''. will not lie for single item, must be a general, 77. when co-partner need not be party to, 89, ^^, et seq. when it will lie against administrator and heirs, 77. Bill for appointment of trustee, when trustor is necessarv party to, 23, ^«. Bill creditors, after it is filed against executor creditor may net sue at law, 77. when may not be maintained, 30, ". Bill of discovery, tiled either by or against partner, 2, ^S ct :^cq. Bill in equity, proper parties to who are, 18, 1, et seq. Bill of inter pleaderr See Intekpleadee. v.hea 1 gatee cannot maintain, 77. Bill of lading, when consignor mav intervene in suit UToon, 110. J^ " . -^ Bill to redeem, administrator may file when, 73. who necv-ssary parties, 28, ^ et seq. when heirs are necessary parties to, 28, ^, el seq. when personal representative necessary part}', 28, ', et seq. Bill of revivor not preferable to scire facias upon death of party, 105, i=^. Bill for final settlement and distribution, who are necessarv parties to, 22, '■^^, et seq. 355 INDEX. Bill of eschange p^.yable to drawer, when indorsed, holder may sul; acceptor in own name, ^ 35, ^-^ Board, and lodging, as between near relatives law will not imply promise to pay for, 8, 3. '^. and clothes of ward, guardian when may be sued for alone, 21, 1^. of ward, sureties of guardian not liable for, 86, ■^-. Board of supervisors of county, action against must be against ljody,*and not members of, 42, °, et seq. of county, statutory provisions relating to suits against must he strictly followed, 42, ^, et seq. Bond, olMcial. Se3 Official Bond. of administrator, what breaches of may be united in same action, 75. after payment of debts administrator liable upon for assets in his' hands, 77. of administrator, suit on, for not accounting within proper time, defense, 75. of joint administrators, extent of recovery upon by admin- ist:rator de boiiis non, 77. of administrator, surety on, not liable for claim barred by the statute, 8G, '•^«. of administrator, when sureties proper parties to suit to set aside settlement, 86, ■'^'. attachment, when each obligor has a distinct and separate remedy upon, 86, -". court may require next friend of infant to give, 56. --. of executor, sureties on not liable irntil after default of pi'incipal, 86, '^^. of executor, in action upon, surviving principal cannot effect to non-joinder of executor of deceased principal, 101. «. injunction, when sureties are parties to suit, 86. "■'^ injunction, dsath of principal on, suit proceeds against surety, 86, '^'^. for price of land, payment by surety, necessary parties to bill to subject land to payment of, '26, ="-. for title to land, suit upon for convevance necessarv parties, 26, •*, et seq. joint, necessary parties to suit upon, 24, ^^, et seq. to retiring partner for protection against firm debts, suit upon proper parties, 25, ^'^. given to partners in suit upon assignees of bankrupt should l)e joined, 54, ^. of receiver, breach of failure to pav borrowed monev, 52, 3". of receiver to the trust property dates from time of giving, 52, ''. INDEX. 356 Bond — Continued. of school district injunction to prevent collection of tax to pay interest on, necessary parlies, ^ 28, ^^. several when all the sureties may be joined in suit upon, 86, ^«. official, sureties liable for what acts of principal, 86, ^^. official, Avhen sureties not liable jointly on, 86, ^*. injunction to restrain collection of tax to pay necessary parties, 28, ^^ of town, authorized by law, constitute valid demand a^jainst, 46, *. unauthorized issuance of, by town, money received upon may be recovereel back, 46, ^. who may sue upon at common law, 36, ^''. who may sue upon statute, 36, ^'^. who may sue on in California, 36, ^. who may sue on in Kentucky, 36, ^. when real party in interest may sue on, 36, '', et seq. given for security of particular person, who may sue (Iowa) , 36, «. administrators, who may sue on for devastavit, 75. of administrator, when creditor may sue on, 75. attachmert, when one partner may sue on, 88 ^'^, by clerk of State prison who may sue upon, 48, ^. given to chancellor in official capacity, sues in official name, 49, ^ of guardian, action by infant upon, how prosecuted, 57, '^'^. of former guardian, action by infant, how brought, 57, '^^. "to justices of county court for use of county," who may sue upon, 49, ^. and mortgage, promise to third person latter cannot en- force, 36, 11. no one but a party thereto may sue upon, 36, i, el seq. suit by assignee of one of two obligees no bar to xiit by same person after purchase of whole interest, 36, •'•'. replevin, one of two obligees insolvent, suit in name of solvent obligee alone, 55, *. of executor, Avhen suit on, properly brought in name of probate judge, 49, *^. in name of probate judge, action in name of, although office abolished, 32, '^^. action by probate judge, when successor may prosecute, 49, ^, et fieq. to public officer and successors of, who may sue, 47, ^. sheriff may sue upon lull, 51, ^. taken by sheriff iu official capacity, suit upon in name of, 51, 1, et seq. in name of State, action usually in its name, but, 39, ^'^. 357 INDEX. Bond— Continued. to State for use of town, latter cannot sue in own name, 45, ^. given town, new town equitable owner of action upon, name, 45, ''. given to A. B,, treasurer and successor, latter may sue upon, 50, ^ insolvent surety may sue co-surety on bond for exonera- tion, 55, ^ " " of former administrator, when may be sued on for distrib- utive share without the appointment of an administrator de bonis non, 78, ^. of cashier, d^ath of insolvent, suit proceeds against sureties, 55, ^^. joint, what judgment may be entered against defendants in action upon, 97, ^', et seq. of liusband and wife made during coverture, husband sued alone, 68, i". joint obligors may be sued separately (Louisiana), 97, '**. forthcoming, when no action lies against sheriff for failure to take in trover, 51, ^^. when plaintiff may sue sureties jointly upon two separate, 8(3, r«. joint, when action will lie against the surviving sureties upon, 8ij, ^^. Bondholders, numerous, injunction to restrain collection of tax, necessary parties, 28, ^'. Books of corporation, right of stockholder to inspection of, how enforcL-d, 93, ''. Bound, who are, by legal proceedings, 7, ^. lien holders not, unless parties to action, 7, -■'. no one is, who is not before the court, 7, ', by judgment, although not party to action by name, 7, '^ \t seq. living person not, by adjudication that he is dead, 7, ^. when United States party to an action same rules apply as to others, 8, ^ Bridge, county not liable for erection or repair of, over naviga- ble stream, 42, ^", el seq. town independent of statute not liable for non-repair of, 46, », H s- q. when ind.ctmeut wiil not lie against officers of town for non-repair of, 46, i". mandamus will not lie against officers of town to compel to rebuild when, 40, i'. Bi'otlisrs, as Ixtweeu, law will not implv contract to pav for lK.;u-d.83,a. Bundling, custom of, defenso to action for seeluction of child, INDEX. 353 Capacity, of party to sue should appear, 4, ^, et seq., 1, 3. person might sue in either of two or more, must show in which suit is brought, 4, *, et seq. to sue, sufficient description of, 4, '■^. action will lie against person in several, 4, ^^ et seq, in which person sued for movables, 87, ^^. in whicli personal representative liable for claims, 75. defendant admits right of administrator tobue bv pleading in bar, 71, &. when suit against administrator in individual pleadings may be amended, how, ''■^. of administrator not admitted, when action revived in name of, after plea filed, 71, ''. no action at common law by or against foreign adminis- trator, 71, 1*. person appearing upon record as "agent, guardian," etc., extent of liability as party, 1, ^''. in what county sued, statutory provisions must be followed, 42, *. when executor liable in official, 74. defendant may be sued as executor and devisee, 74. in what executor should be sued for his personal tort, 76. wJien insolvent debtor has none, to appear in court, 55, ^. firm insolvent, in joint and several, rights of holder of note against, 55. i". action by assignee upon negotiable note should sue in what, 35, ^ official, when suit against administrator in, 74. w'hen personal representative should bring action on con- tract in, 72, ^'^. official, public officer must pay over to successor, money received in, 47, ^ et seq. official, when receiver may sue to annul sales of property by judgment debtor, 52,"^^^ et seq. of public officers to sue, 47, i. person in possession of property has several, law will attach to proper, 4, i". in what town may sue, 45, i, et seq. widow sued as tutrix may be made party as administratrix when qualified, 74. bill to enjoin conveyance of dower, interest of wddow in lands, widow^ sued in what, 28, ■^^. Cattle, Avhen joint action for trespasses of proper, 98, ^, et seq. Caveat of will, executor miist conduct the litigation of, 71, ^. Certificate, of deposit, liability of bank upon. 91, ^'. void, tax sale, holder may recover amount paid, of county. 359 rsDEX. Cestuis que trust, suit for account against assignee for benefit of creditors, ueceisary parties, 23, ^^. trustee must account to for trust funds, 33, •'. when too lata to object to want of, in suit for accounting against trustee for benefit of creditors, 33, ^ j, or trustee of express trust may sue on contract. 52, -, ft spq. when should be party to suit to enforce contract to convey lands, 26, i«. need not be joined in suit by trustee to foreclose trust mortgage, 32, i^. when both must be parties to suit to foreclose mortgage, 27, ^^, et seq. suit by to foreclose mortgage, trustee made party, 27, '•^*. suit to quiet title, when need not be party to, 26, '^-. when should be party to bill to redeem, 28, ^'. may enforce performance of trust to purchase land, 33. --*. necessary party to suit to diyest minor of interest iu lands, 23, a^; suit agiinst trustee for share in trust funds, when joint action, when serveral, 33, -^ when may sue alone for possession of trust funds, 32, ^^. when may be joined with trustee in suit relating to trust funds, 32, ^ et seq. when must be parties to suit relating to the trust funds, 21, i«, 23, 1, et seq. when heir of deceased is necessary party to suit to recover trust funds, 23, ^'^. general rule necessary party to suit either by or against trustee, 23, ^ et seq.', 33, '^,'et seq. in possession of land may sue for trespasses upon, 32, ^*. numerous, when need not be parties to suit by trustee, 23. *. Gliancellor, bond given to in official capacity, suit iu official name, 49, i. See Equity. Chancery, when devisee may prove will in, 13, •*". S, f Capacity. Character, iu which party sues and status as basis of rccovei-v, 9. 1. ' ruling in intervention. 111, i. Charity, proceeding to enforce should be a responsible relator, 48. '. public proceedings to inquire into, relator when not party to. 1, ^1. Chattsls, detinue, co-tenant of cannot maintain against co- tenant, 81, i». forthcoming bond, when no action lies for failure of officer to take in trover, 51, ^^ INDEX. 3G0 Chattels — Continued. sale of whole interest in by tenant of particular estate reversioner may recover lor, 38, ^. mortgaged, equitable assignee of note mav sue for conver- sion of, 38, ^. specific, note payable in, transferred by indorsement, holder may sue, 85, ^''. liability of officer, who attaches, belonging to co-tenants, 81. '^ ■■^'^. joint owners sue for injury to, 95, '. fraudulent representations in sale of when all part owners liable, 81, ^«. when co-owner of mav bring trover against co-owner of, 9>l, ^\ et iitm of positive law, 0. '-. Claim against estate of decedent, administrator may sue co- administrator for, Avlien, 77. administrator may be sned for, 75, 12, "-. creditor cannot enforce after administration closed, 75. when creditor may proceed directly agaiLst devisee to col- lect his claim, 7d, ^. executor not liable to legatee for debts paid by, 75. Avhat may be joined, 75. mortgage, 75. failure to discharge mortgage c f v rf- (i, < f;,( t. 75. administrator holds, and rcfns..-; .o ^ .. ,- .u -^ roper person, effect, 76. ■when non-payment of, may bo assigned a;; a breach of official bond, 75. after payment of, administrator trustee for ne::t of kin, 78, «. ' administrator cannot enforce personal at law, 77. •when personal representative liable individually, when in oflicial capacity, 75. personal representative only necessary defendant, 75. must be presented before suit brough't, 75. wliLii barred by statute cannot be recovered against sureties of administrator, 86, ^*. Claim due estate of decedent, generally, actions for, must be brought by personal representative, 72, ^ (t seq. when action ui^on, brought in official caracity by pcrscnLl representative, V2, ^^. when administrator may sue rpon, in personal or repre- sentative capacity, 72, '^'^, ^-. heir cannot sue for, except in case of collusion, etc., by tkc rejn-escntative, 78, ^, et seq. note made to administrator, who mav sue en event of \.U death, 72, le. Claimant, of attached property does not become party to action by Lxecutin-? bond required cf si:ch person, 1. '' '. adwrse, of title to mortgaged premises should i:ot be pariy to foreclosure suit, 5, **. Clerk, of board of supervisors necessary partv to bill to restrain execution of tax deed, 28, ^^. of county court not proper party to bill to restrain taking lands for public use, 28, *". Code, what rights of action may be assigned under, £8, ". 363 i:;dex. Code — Continued. contract made for benefit of third pirsou, citlicr trustee or Ijeneficiary may sue, 37, *. pi'ovision.s in nature of i iterpleader, 112, ^, '. meaning of term '-defendant" cs affecting quostiou cf jurisdiction, 10, ^. when plaintiff is the real partv in interest within meaning of, 3i, ^-, et seq. Collateral sacurity, assignor of account given as, is not neces- sary party to suit on, 21, •*^. suit against coi-poratien for account of, and for surplr.3, necessary party, 25, ^-. given to landlord to sccni"e payment of rent, he may suo for disturbance of his right to. 10, '^. when creditor is necessary party to suit by debtor to recover, 2i, -'. note transferred as, holder may sue, 35, ^^ C2, =. rights of pledgee iu, 87, ^'^, et scq. Collection agent. See Agent for Collectiox. who may sue for funds received by, 84, i^. defense 'to action against, for funds collected, ri. ''-. Collection, note transferred for, holder may sue, 35, '", 32, <>. Collusion, when bar to action crim. con.. (.5, ^-. aiti lavit to bill of interpleader, 113, ^. Committea. See Guakdian. insane person appears by, G2, '^. of lunatic, when cannot bring action for lands of, CI, i^. insane person must be party to suit of partition by his, 53, ^*. Commissions, administrator has no claim against heir for, 72. '■^^. Common, liability of city for leaving op^n excavation on, 44. ''. Common, carrier, who may sue for injury to goods delivered to, 87, 2. liable to either consignor or consignee for loss cf goods, 37, °, et seq. excessive charges by, may be recovered back, 87, ^^. when liability for carriage of goods commences, 87, **. when liability for carriage of goo'ls ends, 87, ^. when liable for delivery of goods without i^aymeut for, 87. K liability of receiver as, 52, 2". Common law, when action abated it is dead, 105, ^ pv.rs.)n sue or be sued in reputed name, 3, ^. non-joinder of defendants in action ex contractu only taken advantage of by plea in abatement, 100, -'. tenants in common could not join as parties to real action, 82, ^ et seq. trover abated on death of defendant, 107, -. joint obligation, effect of, death of co-surety, SO, ^'. INDEX. 364 Co'-nmon property, when co-tenant may recover contribution from cu-teiiant for removing encumbrance from, 82, "*". wife not necessary party to suit relating to, 21, ^■*. Common right, persoiis having, when may be dispensed with as parties to suit in equity, 19, ^", et seq. Commonwealth, official bond in name of, v,-ho may sue, 3G, *. Complainant, deceased executor of, when not necessary party to bill of revivor, 22, ^K heir of mortgagee not necessary in foreclosure suit, 27, ^. right to maintain interpleader,' 113, *. wiien interpleader improper, 113, ^^, i^. in interpleader, how should plead, 112, ^". in interpleader, position, 113, ^. admits what rights in interpleader, 114, ^^, may not dispute rights of defendant in interpleader, 115, ^. effect of decree in interi^leader upon, 115, 2. Complaint, filed in intervention, effect, 109, *. in intervention, at what stage filed, 109, ^. amended in order to bind new party, 104, &. effect if not amended, 104, ^^. uniting several causes of action in one, 103, 5. » two causes of action, Code, must be separately stated, 9, °. state cause of action, action not dismissed on opening state- ment of counsel, 8, ^'■^. suit to determine conflicting claims to knd, plaintiff must recover if at all upon allegations of, 9, ^^. misjoinder appearing upon face of objection taken by de- murrer, 100, 1, et seq. when non-joinder of defendants appears ■ upcn faco of, demurrer proper, 100, ~^. Compromise, with co-defendant, effect of in joint action for trover, 9, ■^^. of rights of infant, when may bo confirmed, CO, •*. Comptroller, of currency, cannot submit rights of government to litigation withoiit statutory enactment, 40, ^ et seq. Connivance, when defense of action for seduction of child, 83, ^. Consideration, for contract for benefit of third person, effect en suit by latter, 37, ». from B/to X., note made to A., A. may sue, 37, ^^ Consignee, right of action against common carrier for loss of _ goods, 87, a, et seq. Consignor, may recover back excessive charges, 87, i". remedy against common carrier for loss of goods not in, alone, 87. ^, et seq. of goods delivered to common cari'ier, mar sue for injurv to, 87. 2, et seq. when may intervene, 110, ^'^. Consolidated actions, parties bound by decision in, 7, ^. 365 i^'i>EX. Conspiracy to defraud, when defendants properly joined, in acdun to annul acts, 98, ^^ et seq. Constitution, providing manner and courts in which State shall be sued, effect. 40, **, et seq. State law. determining rights of parties under, course of federal courts. 8. '^. Construction, building, when employer liable for defects in, 83, -^i. of statutes providing for survival of actions for torts, strict, 107. 3«. of will, suit to obtain, all interested parsons should be parties 22, i. Contract, both parties to ahens, mav be enforced in State court, 29, ^-K when assignor of need not be party to suit thereon, 10, ^. action fur breach of, when joint, 94, ^^. of agent, who may sue on, 84, ^, et seq., 84, ^^. of public agent, effect of, 85, i**, et seq. of ag.-ut, when he may be treated as the contracting party, 85, J«. of agent in his own name for undisclosed principal binds both. 83, ^\ to construct vessel, who may sue for breach, 81, -^ building, made by trustee under \Nill personally hable, 33, ^^. of city, mode and manner of making, 44, ^^, et seq. injunction, city authorities, lowest bidder, who not proper parties to suit against, 28, ^^. to A. B. as treasurer of city, suit in name of city, 43, '. of citizens of beligereut States, rule as to enforcement of, 29, 1^ et seq. when agents of corporation may bind by, 91, ^^ et seq. of corporation in foreign state,*liability of, for. 91, ^ joinder of det'eadants in suit upon, generally, 97. when defendants improperly joined in action ui)on, 97. •'. one who has repudiated for fraud may sue wrong-doer, 38, ^. by guardian for board and clothes of ward, former may be sued alone, 21, ^''. of guarantors, when all may be joined as defendants, 97, ». to pav to husband or ^vife during life of longest liver, sur- vives to wife, 64, ^". in relation to personal securit^- of wife, husband and wifo sue, 65, ^^. when husband and wife joined in action upon, 63, ••, 68, ^. of husband and wife to execute mortgage, will be enforced, 69, 1^ of infant as rule voidable, 59, -. of employment, infant may sue for breach of, 56, ^. liability of insane person for, 62, **, et seq. INDEX. 336 Contract — Continued. legal interest in whom, 31, '^. person beneficially interested may sue in equity, 31, ^. made to two lor benefit of one will sustain joint action, 9i, *. to two, when severance of cause of action upon, 9i. *>. joint, upon death of one party may proceed against sur- vivor, 74. joint, suit on infancy pleaded by one, practice, 59, i^. joint, who made defendants in action upon, 97, ', et seq. joint, in equity, all persons liable upon may be sued, 74. on death of joint defendant action procekls against sur- vivor, on his death against his executor, 107, ^i. et seq. joint, survivor and representative of decedent never jomed in action upon at law, 74. joint, effect of judgment on, 97, ^c, joint and several, who sued upon, 97, i^, et ?eq. joint and several, generally, personal repi-esentatives can- not be joined with the survivor in actions upon, 74. for labor when joint, 94, ^, et seq. for labor, when owner of premises need not be party to action to enforce lien, 27, ^^. to convey lands, who joined as defendants in suit against estate to enforce, 78, ^s, 22, '. of sale of interest in realty infant may sue to set aside, after majority, 57, ^*. of sale of landl when co-makers of note for purchase price may sue for recision of, 9(5, ^'-. to convey lands, when purchase price treated as land in equity,' 78, '", to convey land, necessary party to suit to compel specific performance of, 26, *>, et t^eq." for sale of real estate, when obligors may unite in suit to set aside tax deeds, 96, i'. person entering upon lands by permission must pay for their use in absence of express, 80, ^^. right of action for breach of parol, for sale of land, who descends to, 107, ». for conveyance of land, assignee by verbal assignment may enforce performance, 36, i', et seq. to convey lands to wife, she may sue alone to cnfoi'ce, 60, 37. to couvev lands of wife, when will not be enforced against her, 69, i-^. misjoinder of defendants in action upon effect, 103, <>, et seq. misjoinder of defendant in action upon (Code) immaterial, 103, 11. common law, person liable on, made in reputed name, Q 3 - 367 INDEX. Contract — Continned. action iTpoii, brouglit iu name of person with whom it was made, 31, 'K '=with whom or in whose name made for benefit of an- other " either may sue, 37, *. corporation changing name mav sue in new upon former, 90, '. defendant non-joinder of. in action upon, 103. ^i, c4 stq. as.>ignment of note given in pursuance of, rights of assignee, 85, ^t. necessary parties to action for breaoh of, 2i. ^^. et seq. made bToue partner for undisclosed firm, latter may sue on, 8 1 ^ when p irtner mav sue co-partner upon an express promise, 88, i«. of partners, when by statute mad3 joint and several, any partner may be sued, 89, ', et seq. for benefit of'third person, who may sue, 37, ^, ct seq. personal, how jurisdiction over defendant obtained iu action to enforce, 11, *. wrong founded upon breach of, when plaintiff cannot recover, 91, '^^. who must join as parties plaintift'in action upon. 9i. i. who made plaintiff to obtain relief upon in equity, 93, ". at law same person cannot be both plaintiff and defendant in action upon, G, ^-. equity, plaintiff' may be both promisor and promisee in action upon, 31, ^^. for undisclosed principal who may sue, 81, -*. when joint action will lie against principal and guarantor for breach of, 86, ^». prohibited in time of war, cannot be enforced. 29, i'. suit to reform on grounel of mistake, necessary parties, 26, ^-, et seq. suit to rescind, no general rule as to necessary or proper l)arties, 2G, '^■^. breach of execution sale, officer must enforce, 36, -^, et seq. r.uel r seal, wlio may sue thereon, 36, ^ et seq. -cud r seal, not negotiable instrument unless, 3o. -' . r.neler seal, promise by X. to B. for benefit of A., when lat- ter may sue rule in Wisconsin, 37, ', et seq. who may siic upon. 31. i, et seq. specific execution of, when will not be enforced, 9, ^'^. ri'i^ht of surety to contribution not based upon, 86, ^, ef seq. of district board, when tax payers may unite in suit to set asiele, 96, i^. town may sue upon, made to an agent for its benefit, 45. ^". either trustee of express trust, or cestui may sue upon, 32, '^. INDEX. 368 Contract — Continued. of trustee for midisclosed cestuis is alone liable, 85, ^''. usurious, when separate action to recover statutory penalty for, 95, «. to wife when sole, she must join in suit, 64. ^, et seq. to wife, pending coverture, husband sues alone or jointly with wife, 64, &, et seq. of wife, coverture good defense, 68, ^^. of wife, finding property may be enforced when. 68, ^'J. Contractor, when not liable'for acts of employees, 83. ^^. when liable for negligent acts of employees, 83. ^^. after work completed, emplover liable^ for injuries from defects, 83, 21. when is liable jointly with employer for tortious acts of employees, 83, ^". lien on lot, for improvement of street in S. F., who may enfoi'ce, 34, ^^. employing laborers to cut logs, owner not party to suit to enforce laborer's lien, 27, ^^. or sub-contractor, proper parties to suit to enforce mechan- ic's lien, 27, ^^, et seq. suit by to use of city, on special tax bill for street improve- ments latter is not the real party, 2, 1^. Contribution, executor of deceased joint promissor paying note, may sue for, 72, *-'. joint action by, when sureties may bring, 86, ". statutory reinedy of sux*ety for contribution, cumiTlative, 86, «. bill by surety to enforce, necessary parties, 24, ^^, et seq. right of surety to, from co-surety, 86, ^, et seq. when surety inay sue representative of deceased co-surety for, 75. when tenant may recover from co-tenant for removing encumbrance, 82, '^^. Conversion, when bailee guilty of, 87, -". of chattels mortgaged, equitable assignee of note mav sue for, 38, '. survival of action for, 76. of title deed, who may maintain action for. 72. ^i. of trees in another State, action of trover lies, 38, ^, et seq. of whale taken by two vessels, under contract of mateship, no joint action, 95, *. Conveyance, suit for, upon bond for title, when assignor neces- sary party, 26, *, et seq. by judgment debtor, when receiver may sue to annul, 52, 11. of lands, when judgment debtor is indispensible partv to suit to annul, 26, **. 369 LSDEX. Conveyance — Continued. of lauds, when judgment debtor not necessary party to suit to amend, 26, '^K of property by decedent, by gift, suit to recover, parties, 22, ^K ft seq. fraudulent, executor may sue to set aside, when. 73. when creditor may not have set aside for fraud, 8, ^e. in fraud of creditors, relief in equity, when granted, 86, *K suit to set aside, fraudulent as to creditors, necessary party, 26, 25. of land, fraudulent, when receiver may not sue tu set aside, 52, 17. of lands, when grantor not necessary party to suit to cor- rect mistake in, 26, ^2. from husband to wife, suit to set aside, latter should be party, 69, i«. name of A. erased and B. inserted, latter cannot sue for breach of covenant of seizin, 36, '^. several of same premises, suit to set aside, necessary par- ties, 26, =*i. of property of one partner, action to set aside and subject to payment of judgment against firm, ueces^^ary parties, 25, 12". suit for, lands held in trust by deceased partner for firm, plaintiff claiming title under firm, proper parties, 26, -. of partnership property to trustee, suit to set aside, neces- sary parties, 25, i^. suit to reform deed of trust, when wife need not be party, 69, 18. Corporate name, equity will enjoin wrongful appropriation of, 90. 11. Corporation, necessary party to suit against for account of col- lateral securitie's, 25, ''^*. how must act, and how bound, 91, 22. when agents of, may bind by contract, 91, 1^, et seq. appears in suit by attorney. 15, ^. not necessary party to suit by assignor of shares of, against assignee for indemnity against assessments. 25, i^. two niay unite in action for assumpsit, 90, 1^. who may direct filing of peti:ion to be declared bankrupt, 51. 1. insolvent when creditor may join with in suit to set aside proceedings in insolvency, 55, ^. may sue for conspiracy to destroy its business, 90, i^ business of, when coi;rt will not interfere with. 91. -''. equity will not assume management of general business of, 52,'^. et sea. INDEX. 370 Corporation — Continued. injunction to prevent doing business in excess of powers, ])arty, 28, ^'. doing business in foreign state submits to its jurisdiction, 91, 1. equity will wind up business of, 52, =. . citizenship of, 90, ^. " citizenship of members of, 10, •*. unincorporated company cannot sue as, ^2, \ et seq. associates become, pending action, name changed, former cannot be substituted, lOG, i«, 92. 6. consoUdated, debt of old assumed by new, officers of latter not necessary parties to srat to enforce, L5, -'^. creditor's bill against to enforce debts of, vd:o should be Ijarties, 93, ^", et seq. how corporate existence put in issue, CO, '*. must bo defendant in proceedings to impugn validity of, 91, ^^, et seq. should be defendant to suit against director for wasting property of, 93, ^ et seq. dissolved, eft'ect on pending action, 91, "-. ceased to exist, cannot be party to a suit, 25, ^'. necessary party to suit to wind up its affairs, 24, ^^, 25, -'. foreign, may sue if its corporators could, 90, ^. foreign, may sue in federal courts although prohibited by law of State, 8, ^. foreign, when federal court will not enjoin cancelation of license to do business within State, 4, ''•^. foreign, jurisdiction over, how acquired, 91, ^, et seq. insurance, stockholders liable for debts contracted prior to payment of capital stock, 107, ^'•'. insurance company may recover of wrong-doer, amount of loss, 90, la. "^ -^ when may maintain interpleader against claimants to a ^ dividend, 90, *«. right to sue for its real estate, same as private person, CO, ^. time extended to commence suits, new lease of life, CO, "^. liable for price of materials furnished to build church, 91, •■^". what necessarv before suit to recover money advanced for stock, 93, 5. must sue in own name, 3, ^'^, GO, '■^. only known by corporate name, 91, g. when may exist under either of two statutes, presumption as to name, 90, ^. pending action by, name changed, 3, ■^", 91, «. changing name may sue in new on former contracts, 90, ^ public officers are, statute, sue in name of, 47, ^. 371 ^-""^-^• Corporation — CordinuecK "suit against, effect of misnomer, 91. ". ct r-rq. •when may sue npou note made to its agent, witliO"t in- doi'sement. 90. i^. utien not liable for acts of its oflScers, 91. ^'. officeix changed after suit brought against, who (Icfend, 91, 1". action by dc facto officers of, 90, '". must be' i)arty to bill against its officers to restrain mis- apprDpi'iation of trust fund, 91, ^^. " the neople of a county " are not, cannot sue or be sued, 41, K powers of to sue and be sued, 90, ^ mav be sued in anv form of action appropriate to the fiicts, 91, 2». railroad, when liable for misleading announcements, 91. -^. judgment against through collusion of officers of, when recf-iver may sue to set aside. 52, ^^. appoint^ment of receiver for, when does not dissolve, 91, ^o. authority of receiver of, to sue for. when must appear. 90, -^ suit In- receivers of to enforce payment of stock, elefense to, 93. i3. after receiver appointed for, neither liable upon trustee process, 91, ^i. when remedv against must be enforced bv the public au- thority. 91", 1-'. suit relating to rights of, necessaiy parties, 25, ^^. when ]-oad district may not sue as* 20, ', et ?eq. sole, must allege in what capacity siait is brought, 4, ^. sole, pi-iest may sue as, 90, *. ass'4s, suit of' stockholder relating to, necessary partv, 25, ^2. right of stockholder to inspection of books, 93. ". delDts of, bill to enforce liability of stockholders for, neces- sary ]-)artie3. 25, ^tJ, et seq. stockholders cannot make defense for. 91, =. defunct, when stockholder may elefencl foreclosure suit against, 93, ^. et seq. when stockholder mav sue director for wasting property of, 93. ^ et seq. should be party to suit by stockholder against director for waste, etc., 2o, ^-'. in liquidation, when directors of, must account to stock- holder. 91, 33. when stockholder must sue to recover his share of divi- elends, 91. i^. when should be party to suit against its officers and stock- holders, 90, •-'". INDEX. 372 Corporation — Continued, stockholder may enforce publication of "statement ar.cl report " of, 93, «. when acts of, are restrained by single stockholder, 93, '^, stockholders of, suit against'to enforce payment of sub- scription to capital stock, 93, ^*, et seq. when stockholders allowed to be substituted as party in suit by, 106, ^^ 90, ^^. when single stockholder may sue to wind up affairs of, 55, «. sister State sues as a, ?9, ^^ State University is not, cannot be sued, 40, J^. when may sue on subscription, 90, ^'°. unpaid subscriptions to, part of assets of, assignee of bank- rupt must sue for, 54, ^, et seq. superintendents of poor are, how may sue, 90, ^. liability for torts of, agents, etc., 91, '^^, et seq. liable for malicious prosecution, 91, ^^. when may sue for trespass upon lands, 90, '', 93, ^. trustee of. action for penalty failing to file report did not siu-vive, 107, ^^ Corporators, if they could sue, foreign corporation composed of, will be allowed to, 90, ^. Costs, right of assignor of unnegotiable chose to indemnity from, in action, 34, *, 8, ^, et seq. security for, none given by non-resident defendant action dismissed, 8, ^^. guardian ad litem for infant defendant is not liable for, 58, ^1. next friend of infant responsible for, 56, '6. when allowed in interpleader, 115, ^. person beneficially interested prosecutes action in name of another, former liable, 2, ^. plea of fully administered, found in favor of the adminis- trator he is entitled to, 77. suit to enforce charity relator responsible for, 48, '. Co-tenant, when may recover contribution from, for removing encumbrance from common property, 82, *". wlien tenant in, cannot bring action for treble damages for injury to common property against, 82, '^^. Counsel. See Attokney. alien enemy when sned may employ, 29, ^^, opening statement of, as a rule action will not be dismisst;(2 upon, 8, J-^ County, not liable to attorney for defense of pauper prisoner, 42, '-. bond of justices of county court for use of, suit in name of justices, 49, ». County — Continued. niav sue on bond of co-treasurer for money receivable and withheld, 50, ". not liable for bridge over navigable stream, either erection or repair of, 42, ^", et soq. capacitv in which sued, statutorv manner must be followed, 42, ^.■' not liable upon claim audited and allowed without i-educ- tion, 42, 11. who may intervene in suit to enforce claim, 110, ^•^. funds, county treasurer liable for, 50, ^^ mandamus against its officers to compel to hold office at county seat, who party. 5, '. seat, mandamus to determine who party to proceeding, 5, '. when may recover back money paid to its officer, 41. '. when action on official bond properlv brought in its name, 41, «. (Georgia) can only sue in name, 41, ^. in Georgia can only be sued in corporate name. 42, •^. new, action lies by oil for pro rat-.L share of debt. 42, ". when liable to physician for post mortem examination, 42, i«. funds of treasurer cannot retain special counsel to prose- cute tax collector, to recover, 50, ^. funds of, attornev-gereral cannot use name of State to pur- sue, 48, i. hospital, inmate may not recover of county for bad food furnished, etc., 42,* i-. not liable to witness for injury received from defect in court-house, 42, '**. liable if it does not furnish jail. 42, ^^. not liable for the erection of jail near residence of private person. 42. i^. is liable for board, etc., of jury kept together by order of court, 42, 1^. all ordinary suits for school money are bronght in its name, 41, ■*, et seq. proper party to suit by owner of scliocl lands to rcsti-ai:i collection of tax upon, 2'^, -^. no inherent power to sue, 41, ^ no manner p jiuteid out by law for suit against, what p;ir- sued, 42, -. must be sued in manner pointed out by statute, 42, ^ it stg. action must be against board of supervisors of, and not against members of, 42, ^, et seq. liable to liolder of certificate for amount paid at void tax sale, 42, ^. Partiks- 32 INDEX. 37.J. County — Coiitinued. wnoii not liable for money paid for redemption of lands sold for taxes, 42. ^. County attorney, and attorney-general may use name of State to pursue any remedy, 48, •*. et seq. CJounty judg3, bill of to enjoin owner of plank road from im- propc r interference with, 28, ^^. County recorder. See riEcoEDEii County. County treasurer. See Treasurer County. Courts, of adniirnlty, ^vllen permit infants to sue alone for wages, 57, ^. " assignee of bankrupt may sue in any and in own name, 53, s. of chancery will not assume management of general busi- ness of corporation, 52, ^, et seq. citizen may sue alien tnemy, where, 29, ^*. action against city, where brought, 44, '■^^. of claims of U. S., right of alien to sue in under abandoned and captured property act, 29, ^. of claims, when United States liable to suit in, 40, *, et seq. when Avill not interfere with business of a corporation, 91, -^\ county, when should be party to bill to restrain road over- seer from imjiroperly taking lands for public use, 28, ^^. executive department not responsible to for performance of duties, 48, ^ power to appoint guardian for insane defendant, 62, ■*. when may appoint guardian ad litein for insane defendant, G2, ■*, et seq. authority as to appointment of guardian ad litem for infant defendant, 58, ^^, et seq. need not grant permission to infant to sue bv next friend, 5G, 1^. authority to change next friend of infant, 56, '^'^ leave granted person to intervene, effect, 109, *. l)Ower over friend in interpleader, 115, ^, ^. of general jurisdiction, judge of not liable for judicial act, 49, **. having jurisdiction, right of party may be pursued in any, 8, '. when Avill order sale of property in partition suit, 82, ^^. may notice defect of parties to bill, and of own motion order amendment, 102, ^s. duty of, in application to make new party, 104, 1. practice in making new party regulated by, 104, \ cannot object to manner in which plaintiff sues, 101, K power to appoint receiver generally, 52, ^ et seq. without leave of receiver of, cannot be sued; 52, ^"j ei seq. 375 IXDEX. Courts — Continued. order of, granting right to sue receiver may be revoked, 52, -^, et seq. foreign republic when may sue, 39, 3. State may sue in its own, 39, ^, et aeq. in which'State to be sued, no provision, effect, 40. ^ et r,eq. State, when creditor may attack, discharge of bankrupt in, 5i, ^'. when permission of wife to sue alone presumed, G3, ^s. Court-house, defects in, county not liable to witness for injuries received through, 42, ^**. Covenant, when an action upon may be brought by partner against co-partner, 88, ^^. when joint action lies upon, 94, ^^, et seq. when several action lies upon, 94, i*, et aeq. against encumbrancers, do not nin with land, cannot be assigned, 36, ^^ to pay mortgage, who may sue when breach occurs after death of covenantee, 78, ''^'^. real assignee may sue for breach, 36, "'-*. running with laud, when heir chargeable as assign, 78, ^K that runs with land, when tenant in common should stie separately for breach of, 82, ■*. of seizin, deed made and delivered, name of A. erased and B. inserted, latter cannot maintain action for breach of, 36, -^^ Coverture, assault by husband ujDon wife during, she may not recover, 67, ■*. " contract bv husband and wife during, no joint action against both, 68, ^^ contract to wife pending, husband sues upon jointly or with wife, 64, ^, et seq. contract by husband and wife during, for conveyance of her lands, will not be enforced, GO, ^'^. good defense to contract of wife, 68, 33. not matter of defense, but of abatement, waived, 63. **. husband and wife join in actions arising before, 63. ^ husband sues alone upon caxises of action arising after, 63. -'. liability- of husband for debts of wife contracted before, 68, \ et seq. tort to wife during, cannot sue husband for, after divorce, 65, -i^. rule modilied as to liability of husband for torts of wife during, 70, ^, et seq. wife, when can claim no indulgence in action from. 69, ''. Credit, partnership action hv, against one who fraudulently induces it to give, 88, '*. INDEX. 37G CreditDr, administrator protects rights of, iu suit against estate, 75. assignee of bankrupt represents both for new and later, 53, J^. propsrty conveyed to defraud, assignee of bankrupt may sue to recover, 53, '' . assignee of bankrupt refuses to sue for debt, remedy of, 53, ^ et seq. ■when may sue assignee for benefit of, for covenant broken, iu separate action. 31, -'. when appears and files claim iu creditor's suit presumed to be a party, 1, '^. bill, see Bill Ckeditoes. suits generally, see S6, '^'^, et peg. bill, against corporation, who should be made parties, 93, Ji. bill, misjoinder of plaintiffs, effect, 102, ^. bill, who necessary parties to, 24, ^^, it seq. bill, may be made party' to creditor's suit, 5, *. bill, discretion of court'^as to new parties, 5, 6. bill, new party to made without order of court, 104, ^, 102, ^'. bill, after appointment of receiver in, he is proper person to enforce judgment, 8, '^'^. what breaches of administrator's bond may be united in suit by, 75. proper parties to suit upon bond given to retiring jDartner, 25, J^. when may sue on official bond, 75. when may proceed directly against devisee to enforce claim against'esta^e of decedent, 78, ^. cannot recover of surety of administrator amount of claim barred by statute, SG,''^**. cannot enforce claim against estate after administration closed, 75. of firm, remedy upon claim, upon death of co-partner, 89, -1, et seq. composition, fraud on, when monev paid mav not be recov- ered back, 34, 2, e, debtor's conveyance in fraud of, when equity will grant relief, 36, ^^, et seq. when not entitled to have conveyancs set aside for fraud, 8, 26. of bankrupt corporation, may not sue for assets of, 54, 3. may sue upon claim against corporation although receiver has been appointed for it. 91. ^j. when may join with insolvent corporation in suit to set aside proceedings in insolvency, 55, ^. 377 INDEX. Creditor — Continued. wlieu should make corporation a party to suit against its ofticerrf aud stockholders. 90, '^. attaching crop of tenant, when landlord may claim, 79, ''. general, when may not intervene. 10 », ^^ when may intervene in attachment suit. 110. ^. may not intervene in foreclosure suit, 110, -^. wlien enjoined from collecting debt from surety, 86, **. suit against debtor, when judgment creditor of former should be party to, 2i, ■*. no right to be made party to action at law of another cred- itor against common debtor, 5. ^, is necessary party to suit by his debtor to recover collateral securities, 2i, '^. may not sue in own name upon demand due estate of bankrupt, 34, "-^^ et seq. when may attack in State court, discharge of bankrupt for fraud, 51, ^'. right of recovei'v against former administrator for devas- tavit, 77. when must refund excess of dividend received from insolv- ent estate, 72, '^'^, '^^. when made parties to application for dower, 73, ^''j ^^. execution, money overpaid to sheriff may recov. r back, 51, **. suit by to reach fund of debtcr in hands of third p.rooii, necessary party, 24, ^. when will not be allowed to be mado parties defendant to foreclosure suit, 104, '^'^. when not liable jointly with ofLicer in action to recover goods attached. 98, ^^ etstq. judgment, see Jvdct3iext Ckeditoes. justice, judgment entitled to aid of equity, when, 36, "". judgment, theory upon which equity acts in assisting to reach debtor's property, 36, ^■^, ot seq. juclgment, when should be party to suit by creditor against debtor. 24, ^. when judgment creditors may unite as plaintiff in suit to enforce ^liens, 96, <>. generally cannot bring action to recover property of deced- ent for the estate, 72, -, et seq. proper parties to suit by assignee of insolvent to recover property, 24, '^^, et seq'. personal representative of estate of decedent is full repre- sentative of, 71, *. and adverse claimant of attached property, sheriff" may not compel to interplead, 51. >*. sheriff' sells property under several executors, may file bill of interpleader against, 51, '. IXDEX. 378 Creditor — Continued. riglits of, receiver of stock of goods, disposes of same vvitli- out authority, 52, '^, tt st-q. vi-hen foreign receiver may not maintain suit, 52, ^^. judgment against corporation, fraud of rights of, when receiver may sue to set aside, 52. ^^. attaching of husband, when wife cannot maintain replevin against, 65, ^. liability of stockholders of a corporation to, 93, ^K e( seq. ■o hen made party to suit by surety to enforce right of sub- stitution to securities, 24, ^^. secured by trust deed, necessary parties to suit for account of trust fund, 23, ^. when may enforce resulting trust in favor of judgment debt(U-, '52, i-*, el seq. suit by to reach property devised in trust to use of bank- rupt, necessary parties' to, 23, '^^. seeking to set aside trust deed made by his debtor, when he may sue trustee withoiat joining certui, 33, ^. when not necessary parties to suit against trustee for an account, 23, 2", et seq. trustees fi)r benefit of, liable for one final account, parties, 33, 13, (4 seq. necessary parties to bill to restrain sale bv trustee of prop- erty for benefit of, 28, ^^. trustee of suit by, to subject lands of debtor to payment of debts, necessary parties, 26, ■*", et seq. Criminal convsrsation, adultery of plaintiff no bar to action, 63.31. when cause of action complete. 65, '^». when collusion bar to action, 65, ^^. to support action must have been valid marriage, 65, ••■'•. nature of action, 65, -". Crop, al)andoned by tenant, when landlord may claim from attaching creditors of tenant, 79, '. purcliastr of, when liable to assignee of note given for rent of land, 35, 32, 79, 17. when tenant may maintain trespass against landlord for trespass upon, 79, ^-^ Cro33-pleading, to enable defendants to litigate their rights, 11, e. when uiay be filed in interpleader, li5, *'. CulTsrt, over natural streams, iiability of city for ill-construed, 41, 12. Curator, ad hoc, when may represent absentee, 29, 21, et seq. ad litem. See Guakdian ; Guardian Ad Litem; Next FltlEND. ad litem, when infant appears bv, 56, '^'^. Custody, of lost property, who enti'jed to, 87, ^^, et seq. 379 i^'DEX. Dam, lands flowed by reason of, -who unite for damages, 95, i". Damages, in actions crim. con. what mitigation of, 65. •^'. loi- maliciously burning building, amount not affected bv what. 38, 1*." for d^atb of person at common law u j action, 72, ''. no, by statute, 72, ^. death (jf person caused by negligence of railroad company, recovered by indictment, 107, ^^. action for injuries to Avife, husband and, join, Go, ^, et -.eq. for wrongful seizure of property exempt, either husband and wife may sue for. or husband alone. 63, ''. creditors of husband lew on property of wife, action bv both, 66. «. eviction of co-partners from lands, -when sue jointly for, 94. 1^. for flowage of lands, who unite in action for. So, i". land taken for public use, administrator may sue for, 73. private, arising from public nuisance, private person may sue, 30, 11. apportionment of, in case of non-joinder of plaintiffs in action for tort, 100, i^. 85, i, et seq. when joint action lies against i^rincipal and sureties for wrongful issuance of artachment, 8i3. i^, et seq. treble, destruction of chattel, death of co-defendant, suit proceeds against survivor or executor, 98, ', assessment of in joint action for trover and conversion, 98, 11. when tenants in common may join in action to recover, 73. liability of village for change of gi-ade of street, abutting owm-r. 46, i^. Day in court, before person bound by legal proceedings lie mu:5t have, 7, '. Dead, liying person not bound by adjudication of court that he is, 7, «. ' Death, of joint administrator suggested, suit proceeds against survivor, 75. of sole defendant in action, in whose name revived, 105, --'. of sole defendant, when action will not bo revived, 105. n. of defendant, when action may be revived against heiis, 105, i«, of co-defendant, in action for damages for destraction of chattel, suit proceeds against S'.irvivor or executor, 9S, '. of one of several defendants in trespass, qaare daitsum fregit, effect. 105, ^. of defendant in real action, abated. 105. *. of defendant, bill of revivor preferablo to scire facias, 105. la. of party, when suggested, lOG, '. Death — Continued. of party, effect upon pending action, 105, 2, et seq. of sole party, plaintiff or defendant, effect, 107, •^''. of party, personal representative not bound until brought into court, 100, i". of either party in action by husband and wife for injury to lands of latter survives to other, 66, ^^ H seq. of party after final argument, but before decree, what order made, 103, '^^. of plaintiff befure commencement of suit, how taken advantage of, 107, 1. of plaintiff', propar time for proof of, 1C8, ♦>. of plaintiff in action, who may revive, 105, ^'^. bill of revivor not preferable "^to scire facias, 105. 1^. of one of two or more plaintiffs or defendants within a year after judgment, execution how issued. 105, ^. of one of two joint plaintiff^*, survivor p-osecrtcs, 107, ••. of person caused by negligence, at common law no action for damaijes, 72, ^, **. statute, 72," «. of co-surety on joint obligation, effect, 86, ^^ ft seq. of female plaintiff leaving minor child, substitution of as party, 100, '. Debts, after payment of. by administrator he is trustee for next of Icin alone, 78, ^. of corporation, who parties to creditor's bill to enforce pay- ment, 93, 11, et seq. of insurance corporation, before capital stock paid in, stockholders liable for, 107, ^«. action lies by old county against new county to recover its 2VO rata sliare of, 42,'^. of lunatic, may be enforced, 62, i". individual, of partner, when he sells interest in firm to pay, co-pai-tner may sue, 88, '^'^. of husband, suit to 'subject distributive share of to paj-- ment of, party, 22. 28. of ward, no joint action against guardian and, 59, c. of wife anti-nuptial, husband and wife jointlv sued for, 68, *, 21, 22. J . > ' of wife contracted before coverture, liabilitv of wife for. 68, 1, et seq., 68, '. anti-nuptial, of wife, she liable alone for (Code). 6S, «. of Avife, when husband not liable for, 6S. =*'-. contracted with wife while living with her husband, when she is not liable for. 68, ^o. et seq. Debtor, may sever joint elemand, 31, i«. by consent of, assignee may sue upon part of elcinand, 3-1, ^^. 381 INDEX. Debtor — Continued. non-negotiable chose, when may become directly liable to ' the assignee, 34, &, et seq. execution, suit to set aside sheriif' s sale of lands, may be made party how, 5, ^'^. when no action lies for imprisoning with felons, 51, ^^. suit to subject lands of, to payment of his debts, nectssarv parties to, 26, *". suit against assignee of note, for relief, when assignor made party, 28, '■^, et seq. property of, fraudulently conveyed, bill to reach, necessary parties, 24, ^^ et seq. fraudulent disposition of jn'operty, when will not be stayed by injunction, 36, •*2. how propertS' of, mav be reached in equitv hv judgment creditors, 36, ^3, et seq., 38, ^«. judgment, when receiver may sue to annul sales of prop- erty by, 52, ". judgment, resulting trust in favor of, when creditor may enforce, 52, ^'^, et seq. judgment, resulting trust in favor of, r>3ceiver may not enforce, 52, '^'^, et seq. Decedent, contracts of, in what capacity executor liable for, 74. executor carrying on business of, is liable psrsonally, 75. land contract 'executed by, who necessary parties in'suit to enforce, 22, ^ et seq. action for trespass quare clausum f regit against executor of dead wrong-doer, lies when, 16. when administrator may enforce trust created by, 73. D3C3it action for, when abated by death of defendant, 107, ^u. when all part owners liable for in sale of chattel, 81, -'*. action for, will lie against personal representative of de- ceased wrong-doer, when. 70. principal may sue for in sale to agent, 84, ^^. Dacision, in consolidated actions, parties bound by, 7, ^. Dicrea, date of, death of p irty after argument and before, 105, -K equity, may be made between co-defendants, 9, •*'. befoi-e, defendant cannot revive action, after cither party may, 105, '^^. will not be rendered settling rights in absence of indisj)en- sible party, 7, ^ et seq. all persons whose interests would be affected by should be parties to bill to redeem, 28, ^ enrolled court Avill not entertain application to vary it except, 9, ^*. by default, none against an infant, 60, 2, et seq. none against infant except iipon full proof, 60, ^. binding force upon infant, 57. ^, et seq. DJDES. 382 Decree — Continued. against infant, person legally competent appearing and defending, binding, 60, ^. infants aggrieved by, how may proceed to obtain redress, 7, 1^. in interpleader, 115, i. binds intervener. 111, 22. reversed, when new parties allowed, 103, '^^. when wife cannot prosecute writ of error to reverse, fore- closure, 69, 1'. See Conveyance. Deed, of lands, destroyed before recorded, effect as to parties to suit upon contract of venue therein to convey, 2u, 1^. misdescription in suit to correct, necessary parties, several deeds, 26, i«. suit to set aside, made to trustee, by husband since deceased for benefit of wife, necessary party, 33, *'. tax, who may restrain issuance to intestates land, 78, -^. unrecorded, holder of, need not be party to suit to quiet title to lands, 26, 6". Default, appearance of defendant after, effect, 16. ^'^., et seq. after appearance Avithdra-R n, when propt r, 17, ^. of executor, sureties of not liable until after, 86, ^s. no decree by, against an infant, 60, '^, et seq. judgment should not be entered against insane person by, 62, ^'^, et seq. Defendant, death of one of several in action for an accounting, effect, 105, 6. after serv.ice of process, must appear or quit the field, may appear personally or by attorney, 15, 1, et .^eq. general appearance by, how' made, 14, ^ et seq. attorney appears for part of several, effect of signing name after, generally for, 15, ^°, et seq. voluntary appearance of, equivalent to personal service of process, 16, ^, et seq, appearance by, waives objection that complaint is not signed, 16, ^. several, one may appear and defend for all, 15, 1*, et seq. appearance of after default, effect of, 16, ^■', et seq. action to recover claim against estate, administrator is proper, 22. 12. duty of administrator as, 75. co-administrator or c6-executor who refuses to join as plaintiff properly made, 71, i^. rights of alien enemy as, 29, '^ when assignee of mortgage, only necessarv partv to bill to redeem, 27, *. 383 i>T)EX, Defendant — Continued. in suit to set aside lease for non-payment of rent, assignee of insolvent lessee should be, 55. i*. receiver of bank properly made, in suit to recover special deposits, 52, ^•*. ■when joint action cannot be maintained against bank for deposits, 91, ^^, et seq. in action upon joint bond, what judgment may be properly entered against, 97, 2', et seq. uniting several causes of action against in one complaint, 103, ^ ■when subordinate department of city should not be joined as, 44, ^1. both corporation and receiver for, should be, in suit by creditor to establish rejected claim, 91, ^5. in action upon contracts, who joined as, 97, ^ et seq. when improperly joined in action on contract, 97, '^. who joined as in action upon joint contract, 97, ^, et seq. corporation should be, to suit of stockholder, 93. ^, et seq. when creditors will not be allowed to become, in foreclosure suit, lOi, 1=5. death of, in real action, effect of, 105, ^. death of, abated action for breach of promise of marriage, 107, 2a. death of. in proceeding to foreclose mechanic's lien, 107, ^^. actions for misfeasance or non-feasance of, abate bv death of. 107, 25. death of, in trover caused abatement, 107, 2'-'. death of one of several in trespass quare clausian frenit. 105, ^ 107, *6. action on joint contract, death of one, suit i^rocccd-* against survivor, or his death against his executor, 107, ^^, et seq. when properly joined, suit to declare deed to be mortgage, 99, *. may plead as many defenses as he may have, 9, -^. may make any defense he may have against real or nomi- nal plaintili', 2, i, et seq. who proper in ejectment, 80, ^^, et seq. all persons in possession of real premises may be made, in ejectment, 82, i'. effect of death of, in ejectment, 77, 3*. in ejectment, plaintili' must show title before he can dis- turb. 9, ^S ^', <^^ seq. in ejectment, must have been in possession of some part of premises or no recovery for plaintiff. 9, ^^. who properly joined in equity, 99. when equityVill not retain jurisdiction of suit against, 9, ^". equity, decree between, 9, ^^ Defendant — Con t inu ed. when properly joined in snit to rnnnl fraudnlc nt acts, 98, ^^. husband, Avhen made, bill by vcue. t3, ^'^, 21. ^^. when wife forced to suit through acts of husband he is properly made, 66, ''. when third peison may be joined in suit by wife for divorce, 67, i". husband properly made, in action for tort of his wife, 70. '. when no recovery against, in action for enticing away wife of plaintiff, 65," '^^, et seq. husband and wife properlv joined as, in action i-.pon anti- nuptial debt. 21, '^'^. when wife should be made, in suit by husband, 63, '. wife should be, in statutory proceedings for sale of her lands, 69, ^K wife made, to bill by husband to impeach marriage agree- ment, 64, ^. fact that wife executes mortgage with husband sufficient reason for making. 69, ^^. infants properly made, if pos ible, 6, ^. infant, how brought into court, 11, ^, et seg. how infant appears in action as. 58, i, et seq. infant, may not waive service of process, 58, 5, et seq. infant heirs made, in suit by widow for dower, 66, ^". lunatic appears by guardian or committee, (2. ^, et seq. becomes insane pending suit, guardian should be made party, 62, •^. position of, in interpleader, 115, ^. when intervener may be substituted as, 111. ^'^. should be party to proceedings in error by iutervenor. 111, -^. land suits, persons made to, by general averment, 9, -'. who joined as, in suit against estate to enforce contract to convey lands, 78. ^^. foreclosiii-e of land contract, requisites for injunction, insolvency, 9, •^". when properlv joined in suit to set aside certificates of title to land, 99." y. when not entitled to legal delays for answering, 71, ''•'. bankrupt proceedings pending in federal court, effect on motion to amend a judgment, 54, '6. when properly joined ni action upon, foreign judgment, 97, ■*. threeways of bringing into court, 11, ^. how jurisdiction obtained over, in action to enforce per- sonal contract, 11. *. non-resident, how jurisdiction obtained over, in suit to enforce equitable lien, 11, ^. brought within jurisdiction bv force or fraud, service of process bad, 11, o. 385 INDEX. Defendant — Continued. lion-resident cannot be compelled to submit to jurisdiction unless, 12, ^. person made, for purpose of reaching non-resident, objec- tion, how taken advantage of, 103, ^. mechanic's lieu, foreclosure of, owner of premises only necessary, 27, ^'^. when objection to misnomer of, made, 16, ^^. surname only set forth in complaint, demurrer will not reach objection. 3, ^'^. non-resident, became insane pending litigation, practice, 11, «. "when plaintiff in action cannot take nonsuit without con- sent of, 8, 1'. in action upon note, who made, 97, ^^, et seq. in Mis.^issippi all persons liable upon note must be parties to suit on, 97, i«. proper partv to object to irregularity in manner, suit brought, 101, ^. equitable protection asked by, when plaintiff cannot take advantage of defect of parties, 19, i^. want of proper parties, Avhen amendment proper, 103, ^^. answer of, shows non-joinder, new parties should be made, 104, 8. when may cause new parties to be made, lOtt, ^ et seq. new parties, Code rule for making. 104, i-. imrts with interest in suit, as rule new parties not neces- sary, 8, i3. new party, equitable defense to action at law cannot be made when, 9. -'-'. new parties, complaint not amended as to them, dismissed, 104, i«. what proceedings insufficient to make person party, 1. ^. when person cannot insist on being made party, lOi, i'. misjoinder of, who may object, 101, -. misjoinder of, objection for, how raised, 100. ^^. misjoinder of iu action upon contract, effect. 103, ♦•, et seq. improperly made, stricken out on motion, 10-4, '^^. when cannot object to non-joinder, 101, '. non-joinder of, how tal^en advantage of, 100, -^ et seq. non-joinder of, in action tipon contract, effect, 103, ^^ non-joinder of. in action e.x contractu, met bv plea in abate- ment, 101, ^. in tort, non or misjoinder of, no objection, 103, **, 100. -^. bill to restrain tortious act, non-joinder no objection, 103, 1^. when partner entitled to be made, in action against co-part- ner, 89, s. P.^KTIK.-S — 33 INDEX. 386 Defendant — Continued. upon death of a co-partner, who made, in action upon claim against firm, 89, '^'^. in, against partnersliip, all partners should be. 89, i, et seg. when suit against partnership may be in firm name, or in that of partners, 86, ^. when partners jointly sued, how judgment rendered, 89, ^. person from whom nothing demanded should not be made, 20, e. personal representatives only necessary to action on claim against estate, 75. person refusing to join as plaintiff mav be made, 30, *, 6,*. when several persons cannot unite in action against one, 94, 11, et seq. when cannot file plea in abatement for non-joinder of defendants, 100, ^«. plea of infancy by one joint, practice, 59, i^. admits right of administrator to sue by pleading in bar, 71, 5. judgment bv, against co-defendant must be cross pleading, 11, ^. assignee of pending suit, made party by supplemental bill, 11, '. in chancery suit, before person is, process must be prayed against, 1, i^. "owner of boat" must be named and be served with pro- cess before liable as, 1, ii, et seq. not obliged to plead until served with process, or has appeared, 1, ''. to foreclosure suit, pendente lite purchaser may be made party when, 5, ^, et seq. not error to refuse to allow pendente lite purchaser to be made, 104, i*, et seq. service of by mail, what necessary, 13, ^, et seq. served by publication, in court for what purposes, j3, i. infant may be served by publication, 13, ^. death of before expiration of time for publication of sum- mons, 12, ■'. pending suit receiver appointed for, effect, 52, ^j, et seq. residents of separate places, action in either place, 10. ^. when creditor and officer properly made in, replevin for goods attached, 98, ^^. death of in action for replevin, caused abatement, 107. ^'^. in replevin, acting in bad faith, when sureties may inter- vene, 86, ^^ death of, bill of revivor preferable to scire facias, 105, ^^ entitled to notice of revival of action, 71, ^^. 3S7 Dn)EX. Defendant — Con^uiuecZ. joint, upon death of plaintiff, when allowed to revive suit in own name as administratoi', 71, ^o, death of in action to condemn lands, revived in name of heir or devisee, 105. ^^. on death of sole, in whose name action revived, 105. —. upon death of sole, when suit will not be revived, 105, ^^. before decree cannot revive action, 105, ^•^. having a beneficial interest may exhibit bill of revivor, foi purpose of appealing, 105. ^^ rights of will not be determined after there has ceased to be a plaintiff, 9, ^5*. when ultimate rights of, will not be settled in suit, 9, ^^. becomes insolvent, etc.. how affects sheriff for failure to levy attachment, 51, ^^, et seg. when' stockholder will be permitted to become, in suit against directors of corporation, 93, ^". administrator of, cannot applv to be substituted as party, remedy, 106, '^K ■ ' when too late to object to substitution of administrator as plaintiff, 106, i«. action against bailee, substitution of principal as, 106, ^^. when executor of joint debtor cannot be substituted as, 106, 23. executor of deceased surety when may not be substituted as defendant, 107, ^^. " after appeal and new trial granted, cannot vacate order of substitution as party, 106, -^. substitution of parties, in replevin against officer, 106, '^. has standing in court how long, 8, ^K may be sued in several capacities, 4, ^", et seq. death of joint in action for destruction of chattel, action proceeds against stirvivor or executor, 98, ^. generally in actions for torts, 98. when properly joined in action for tort. 98, ^. when joint action against for tort not proper, 98, i, et seq. who joined as in action for selling liquor to husband, 98, ^. town must be. to bill to restrain treasurer from paying out money voted, 46, ^^. when separate owners of cattle in common herd, liable jointly for trespasses, 9S, ^, et srq. compromise with co-defendant in action for trover, effect, 9, **5. proper judgment in joint action, for trover and conversion, 98, li. who properly joined in suit to declare trust in lands, 99, ^. when truste'e may sue alone to enforce lien making co- trustees, 32, ^^, et seg. INDEX. 383 Defendant — Continued, change of venue of action at law, all must consent to, 9, ^5. cliange of venue of suit in equity, rule, 9, ^6. wlieu verdict for, contrary to law, 89, ^a. Defense, suit on administrator's bond, for not accounting at l)roper time, 75. to action for funds received as agent for collection, 84. i-^. money overpaid to agents, when pavmeut to principal is not, 85, 1*. W'hen good, 85, ^'^. bankruptcy or insolvency of principal on forthcoming bond, effect as, 86, ■^^ etseq. to suit by assignee of bankrupt when payment to bankrupt will not avail, 53, ^3. what not in action against city for materials furnished, 44, 22. to action by de facto officers of corporation, 90, i". suit against corporation, officers changed pending, who may, 91, i». suit against corporation, stockholders cannot make, 91, &. coverture as disability to sue not matter of abatement, 63, **. defendant may plead as many as he may have, 9, '^^. discharge of bankrupt, must be plefKled as, 54. ^^ et seq. discharge in bankruptcy, good, anti-nuptial debt of wife, 68.5. discharge in insolvency, when no, 84, ^. to action of ejectment, what is not, 80, 16, et seg. what is not, in ejectment by wife against husband, 66, ^'^, of action of ejectment, in whose name conducted, 80, ^^ equitable, to ejectment when heirs of common grantor not necessary parties, 26, 5^. equitable, cannot be made to action at law, when. 9, 2. duty of husl^and to make for both self and wife, 69, *. what is not in action against husband for necessaries, 68, ^^. of infant made by person appointed by court, 15, ^'. infancy good to action for breach of iDromise of marriage, 59, &'. of insane person, common-law rule, 62, ''. what, maker may interpose to action on note, 84, ^", et seq. mala fides only,*to action by holder upon promissory note, defendant may make any against either real or nominal plaintiff, 2, K when pendente lite purchaser may make, to action to recover land, 5, i-. insecure jail is no, to action against sheriff for an escape, of sovereignty, when cannot be set up, 40, «. Defense — Continued. when stockholder "svill be prevented to defend suit against corporation. 93, ^'\ when stockholder may defend foreclosure suit against cor- poration, 93, **. what will not ho allowed in suit to enforce payment of stock, 93, 1=5. to action for seduction, what is not, 83, ", et seq. wife, when can claim no indulgence from coverture, 69, ^. one has right to another's, latter mav not withdraw it, 8, ^'^. Definition, of jurisdiction, 10, i. of interpleader, 112, ^. of intervention, 109, i. of indispensible party, 18, ^. of necessary party. 18, **. of proper party, 18, i". Delay, intervenor must not cause in suit, 109, ''. is entitled to what. 111, i^. Delivery, bailee of goods, defense for failure, 87, --. bond, sheriff may unite in suit in equity with parties to, for protection of property, 51. ^. common carrier, contracts to deliver to consignee, 87, ^. bv common carrier of goods consigned, when liable for, '87, *. Demand, no action against bailee of property until after, gen- eral rule, 87, 2". must be before suit to recover back money advanced for stock of a corporation, 93, ^. must be made before legacy can be recovered, 77. what taken notice of in morion or rule to obtain money taken under juderment, 8, -^. as a rule principal cannot sue agent for money collected until after, 85, ^'^. when none necessary, for money in hands of public officer, 47, 11. no action against sheriff for failure to pay over money col- lected on execution until. 51, ^-. of deputy sheriff, when equivalent to demand of sheriff, 51, 23. ■ when assignee may recover money advanced for, from assignor, 3i, ''. due estate of bankrupt, assignee must sue upon, 34. -^. against county allowed for full amount, remedy to enforce, 42, 1*. due infant, when guardian may sue for in own name, 57, ^. joint, who must sue upon, 31, i**. joint, severance by debtor, separate actions, 81, ^^ who is real party in interest, 35, i^ INDEX. 390 "Demand — Continued. holder of valid transfer as against assignor is real party in interest, Code, 34, 12, et seq. purchaser of, from assignee of bankrupt may sue in name of, 34, ''\ unnegotiable, attached by shei'iff, may not sue thereon in own name, 51, ^. entire indivisible cause of action cannot be split so as to bring separate suits, 79, 1^. split, rule as to who may sue at law, in equity, 31, 1^, 34, '&, split, assignee not necessary party to suit on the debt, 24, •*^. split, as assignee, when cannot sue at law, 31, ^^, et seq. when assignee may sue, 31, ^^. against town, subsequently become two towns, separate suit for pro rata, 46, '. Demurrer, genei-al, tiling, amounts to general appearance, 14, •*. pleading fails to show party is an infant not ground for, 56, ^^. when proper method of objecting for misjoinder of parties, 100, \ etseq., 100, i«. for misjoinder of parties plaintiff separate and distinct interests asserted proper, 100, ^. mode of obji'Cting to non-joinder of parties, 100, ^'^, 100, ". for non-joinder, must point out proper parties, 100, "'''. for non-joinder of co-partner in bill for account of partner- ship affairs, when overruled, 89, ^^, et seq. when proper in interpleader, 113, ^^, ■"^. raises objection to position of party upon record, 6, ^. Denial, general, does not place corporate existence in issue, 90, ^. Deposit, lor benefit of infant, latter may sue for, 56, o. Depository, Avhen may compel interpleader, 114, ''. Deputy sheriff. See Sheriff. Description, of unknown heirs, what sufficient, 4, ^■*. party must be by name, 4, ^. of party, what necessary, 4, 1, et seq. of plaintiff, what is proper, 4, ^, et seq. what additions to name of plaintiff are surplusage, 4, ^. Detinue, wlien mortgagee of chattels may maintain against the mortgagor, 36, ^-. what title plaintiff must show to maintain the action, 81, '■^''. will not lie in favor of one co-tenant of chattels against another co-tenant, 81, ^^. for cliattc 1 of wife, suit brought by Avhom, 65, *, et seq. Devastavit, of administrator, who may sue on bond for, V5. extent of action for, by administrator de bonis non against foi'mer administrator, 77. when failure to take out letters of administrator in another State amounts to, 76. 391 I'^'DEX. Heva.st&vit— Continuf^d, suit a:^'ainst joint administrators, death of one, proceeds a??ainst the survivor, 75. of decea-^ed administrator, suit against surety, representa- tive necossary party, 22, ^"*, action for, representatives and sureties of succeeding ad- ministrator cannot be made parties to, 75. Devisee, actions by or against, generally, 78. •u-lien creditor" may proceed directly against, to collect his claim, 78, ^. may be sued in two capacities, when, 74. suit by, to recover lands devised, necessaiy parties, 22, ^i. when may maintain ejectment upon will at instance oi executor, 78, ^'^. of land, may sue for its use and occupation, 78, 22. when legatees may join in action against, to enforce pay- meat ot legacy, 78, ^'^. generally, cannot bring action to recover property of deced- ent for the estate, 72, 2. exception, 72, ^, et seq. when rent of lands belongs to, 73. when may sue for trespass upon lands, 73. when must make heir party to bill to revive suit to set aside conveyance, 78, '•'. cannot maintain action for tort or conversion of property of decedent in his lifetime, 78, ■*. are necessary parties to suit to set aside a will, 22, 2. pretermitted child may recover from each, amount entitled to, 5(j, *. of vendor, when proper party to suit to enforce contract for sale of lands, 26, **. Discharge, of bankrupt pending appeal, effect, 54, ^^. application for by bankrnpt partner, 54, '. of bankrupt, when creditor mav attack in State court, 54. J'. of bankrupt, effect on debts, 54, ^^ et seq. in bankruptcv, good defense to action for anti-nuptial debt of wife, G8,' ^. in bankruptcy of husband, no bar to suit against wife for family expenses (Iowa), 68, ^'^. plea of "bankrupt may file at any time before judgment, 54, '*. plea of, personal to banki'upt, 54, ^'^, et seq. after, insolvent cannot sue upon claim existing prior, 55, ^3, et .-DEX. 392 Discovery, bill of, see Bill of Discovekt. infant cannot be made for sake of, 59, ^^. Discretion, wlien amendment by making parties matter of, 103, ly. allowance of amendment when first asked at bearing of cause, 102, ^-. power of court to appoint giiardian ad litem for infant defendant, 58, ^^ et aeq. appointment of receiver by court matter of, 52, ^ etseq. of court to allow withdrawal of appearance, 17, ^, et seq. of court, may be exercised in entry of judgment in action upon bond, 97, -^. of court, as to new parties to creditor's bill, 5, ^. judicial, Avhether foreign executor can be sued, question of, rather than of jui'isdiction, 7J:. Dismissal, of bill, misjoinder of plaintifis, objection first made at hearing, 102, '1=^. of bill for want of parties, better practice, 102, '^^-'^. et seq. of action, plaintiff becomes alien enemy pending suit, com- mon laAV, 29, 1^ of action, as to one joint tort feasor, effect. 98, «. Dismissed, when intervention will be, 109, ^"-i'. Dissolution, of partnership after, in whose name suit brought, 88, -^ et seq. of partnership, suit for, necessary parties, 25, i*. bill to wind up affairs of corporation and declare, party, 24. ^^. Distinction, between interpleader and bill in nature of, 112, &. Distributee. See Kin Next of. suit by, to set aside settlement of administrator on the ground of fraud, parties, 78, ^". when may maintain action on bond of former administrator no administrator de hotiis non, 78, *^. necessary party to suit by assignee of, to recover share, 22, ^^, et seq. of chose in action, when suit upon brought in own name, 72, 3. over advances, suit by administrator to recover from, necessary parties, 22,'2^ Distributive share, when may be recovered without appoint- ment of administrator de bonis non. 78 i^. necessarv party action by assignee of distributee to recover, 22, ••», et seq. bill to recover, necessary parties to, 22, •*!, et seq. all persons entitled to. necessary pirties to bill for settle- ment of estate, 22, •**>. of wife in estate of decedent, when husband mav sue for alone, 6G, ^-'. 393 IXDEX. Distributive Share — Continued. of wife, in estate of decedent, when action brought by hus- band and wife, G6, *i, of wife, in estate of decedent, when she mav sue alone for. 66, ■'a. suit to subject to payment of debt of husband, former must be party, 22, '^*. Dividend, when corporation may maintain interpleader against opposing claimants to, 90^^ ^^. when stockholder must sue corporation to recover his share of, 91, i*. Divorce, party to action dies pending appeal abates. lOS, ^i. husband not liable for attornev fees of wife in suit for, 68, ^', et seq. after, wife may sue husband for money borrowed during coverture, 67, ^^. after, wife may not recover for assault committed by hus- band before^ 67, '. after, wife cannot sue husband for tort during coverture, 65, *2. when trustee of property for use of husband necessary party to suit, 23, ^^ 67, '^^. Dog, injury done bv, action for damages, survives death of piaintifi; 107, =*\ Donation, materials furnished to build church, when corpora- tion liable for, 91, -^. Dormant partner, need not be made plaintiflfin firm suit, 88, *. when need not be party to suit, 25, *. Dower, when set aside upon ex parte pstition, 78, ^**. suit for by widow, infant heirs made defendants, 66, ^". suit bv widow, marriage of pending, husband made partv, 66, «. interests, suit for by widow, necessary parties, 26, ^^ et seg. widow mav maintain action for, against purchaser of hus- band, 66, *«. mortgage by husband and wife, latter party to suit to fore- close, in ordtr to bar, 27, -'. claimant of. when pi'oper party to suit for specific perform- ance, 26, ^ et !>eq. interests, claimants of, should be parties to partition suit, 28, 1^ et seq. bill to prevent conveyance of, capacitv in which made party, 28, •««. widow remitted to right of, when, 78, ^'. Draft, deposited with bank, effect, 85, -". Drainage, citv not liable for want of efficiencv in plan adopted. U. «. Driver of team, who liable for incompatence of, 83, --, et seq. INDEX. 394 Duty, public, if city elects to perform, must perform fnllj', 44, 2. liability of city to be sued for neglect of, 44, ^ et seq. city receiving valuable privileges from, liability, 44, ^. Duties'^of public ofdcer, for what liable for negligent perform- ance, 47, *. Earnings of wife, when she may sue alone for, 64, **. Ejectment, when does not abate, 107, ^1, et seq. when action cannot be defeated, 80, ^^, et seq. theory upon which action is founded, 80, ". when administrator may maintain, 73. when administrator may maintain for benefit of heirs, . 78, a". when corporate authorities of city may maintain, 43, ^. when will lie agamst city, 44, ^'. when extcutor may maintain, 73. guardian in socage may maintain, for lands of infant, 57, ^. when heir may maintain, 73. 78, '^^. when heir may maintain against administrator, 76. when husband may maintain for lands of wife, in own name alone, 66, i'. for lands of wife, husband should be joined as complain- ant, 66, 1^ et seq. when wife may maintain even against husband, 66, ^'^. when tenant in common may bring against co-tenant, 82, i**. all tenants in common must join as plaintifis in action of, 82, i». after recovery in, tenant may bring action for mesne profits against co-tenant, 82, '^^. who made defendant, 80, ^", et seq. when jierson cannot insist on being made defendant in, 104, 1'. when defendants may be joined in, 98, '^^. effect of death of defendant, 78, ^^. defense, defendant entitled to, 9, ^'. all persons in possession of the demised premises may be made defendants, 82, 1^. defendant must have been in possession of some part of premises, 9, ''^^. when inti^rvention not proper in, 109, ^". who may not intervene, 110, 21, wife'« land, when suit against husband, 69, 2", et seq. against husband and wife, lands claimed by Avife, death of former pending appeal, effect, 69, 21. against wife for lands claimed as separate propertv, sued alone, 69, 22, occupant of lands should be party to, 26, ^^, et seq. when occupant of lands not necessary i^arty to suit of, 26, '^^. necessary parties to action of, 26, ^=^ et seq. 395 I>-DEX. Ejectment — Continued. equitable defense necessary parties, "when heirs of common grantor not, 26, »^. when interest of j)erson only collateral, not necessary party, 23, 5T. to recover husband's interest in wife's land, necessary par- ties, 26, s*. plaintiff may declare against all persons in possession, 80, ^*. former owner maintaining against several purchasers of parcels of same lot. will not be enjoined by them in prosecution of, 96, ^'^. jyeiidente lite purchasers bound by decree, 7, ^*. amount of recovery, 80, ^5. recovery need not be amount of land sued for, 9, ^5. revivor, survival, etc., 76. question as to title, 33, '^'^. plaintiff must show title, 9, ^i. plaintiff must recover on strength of own title, 9, ^•*. title deeds lost, plaintiff may maintain, 9, •*". title deraigned from common grantor sufficient, 9, ^*-3**. Elect; parson attempts to pursue two remedies for same wrong at same time, on motion must, 9, •". Election, officers, necessary parties to suit to restrain city fi'om paying expenses of naunicipal election. 28, P. illegal, of de facto officers of a corporation, no defense to action by, 90, i". quo u'arrdnto to test validity of, how brought, 39, '•'. Employment, when both master and servant liable for acts of servant in course of, 83, ^^. servant discharged for cause must endeavor to obtain, 83, =^^. Encumbrance, contribution for removal of by co-tenant, 82. *". Encumbrancers, proper parties to foreclosure suit, either prior or subsequent, 27, *', et seq. of land, not necessary parties to suit for partition, 28. -*. proper parties to suit to enforce vendor's lien upon lands, 27, 1". Escape, insecure jail no defense to action against sheriff' for, 51. 1". Estate of bankrupt, assignee must sue upon all demands due, 3i, -1, d ^eq. when assignee of, may not sue for trust funds, 34, ^. when foreign assignee cannot sue for property of estate, 34, -^K denumds due, creditor cannot sue upon though assignee fails to do so for two years, 34, -'^. Estate of dec3dent. See Administator ; ExEcrroR ; Aninx- ISTRATOR OR EXECUTOR ; PERSONAL, KepRESENTATIVE. who must bring actions to recover property of, 72, ^ IXDEX. 33G Estate of Decedent— Coi^timied. - ' ^vlleu administrator not liable to pay judgment against, 72, '''. wlien property of, misappropriated by executor may be recovered by administrator de bonis non, 72, '^•^. attorney in fact of executor cannot sue for, 8i, ^'^, claims due, 72. executor or administrator is full representative of creditors in litigating claims, 71, ■*. claims against, 75. no suit lies against administrator until claim presented, 75. equitable suit against to recover claims, who made parties, 22, •*. bill to reach assets of estate when representative of deceased co-executor need not be joined ■with executor, 22, ■*''. suit to subject assets devised to payment of debts, 22, ^3. suit against, to enforce contract to convey lands, Avho joined as defendants, 78, ^**. ■when distributee may bring action on bond of former administrator to recover distributive share, 78, ^. heirs not liable for commissions of administrator, 72, '^^. suit against, -n-hen heirs necessary parties, 22, ^^ et seq. ■v\iien heirs may be sued alone, 22, ^i, et seq. legatee paying claim cannot recover of executor, 75. minor cannot administer upon, 56, ^. ■v\-hen rent of lands is assets of, 7.3. upon death of co-partner sur^vdvor mav settle affairs cf the firm, 72, -». bill for tinal settlement of, necessary parties, ■who are, 22, ^^. Estate insolvent, when administrator may enjoin tenant from suljletting leased j^remises, 73. suits relating to, necessary party, 24, '^'^. et seq. Exception, to rule for making parties to suit in equity, 19, i. to rule for making parties to suits in equity in federal courts, 19, ', et seq. to rule as to parties, suit against trustees for fraudulent breach of trust, 33, \ to rule that no action lies to private person for injury from public nuisance, 30, i", et seq. to rule that rights of person ■nill not be determined in suit to which he is not party, 28, ^a. Execution, death of one of two or more plaintiffs or elefendants within a year after judgment, how issued, 105, '. sale of lands, suit to set aside, debtor may be made party to, how, 5, 1^. sale of lands, stranger may not be made party to suit to quiet title for purpose of "^attacking sale, 5, ^*. 337 INEEX, Execution — Continued. ut law, when debtor's property cannot be reached by, creditor may apply to t(piity, 30. '^'^. property exempt, damages for seizure rccovtrtd either by husband and wile or husband alone, G3, ". sale of property of stranger tj writ, she rift' liable individu- ally, 51, 11. sale, purchaser liable to officer for breach of contract, 36, -^. in hau'ds of sheriff, when latter not necessary party to bill to enjoin judgmtnt, 28, *-. sale by sheriff under several, creditors may be compclkd to interplead, 51, '. creditor, money overpaid to, sheriff may recover back. 51, ". money collected by sheriff upon, no action for until de- mand, 51, 2'^. sale, sheriff may sue for price of property sold at, 51, '^. unsatisfied against deputy sheriff, no action agai:.st sheriff, 51, 11. Executor, joint, when may sue for assets, 77. joint, bill for account may be maintained between, 77. attorney in fact of, cannot sue for bencf't of estate, 84, ij. bond of, when action upon brought in name of probate judge, 49, ^. may commence action in official capacity before probate of will, 71, 1. when liable in official capacity on contracts, 71. when may be sued in two capacities, 71. after creditor's bill tiled against, individual creditor not permitted to pursue at law, 77. de soil tort, who is, 75. de son tort, when no action against husband as, for act.5 of wife, 70, ^ what acts of, amount to devastavit, 7G. death of co-defei.dant, in action for destruction of chattel action proceeds against, or survivor, 98, '. of daceased defendant on joint contract, reached only by new suit, 107, n, el scq. action for misfeasance or nonfeasance of a defendant can- not be revived against his, 107, -j. joint, who refuses to join as plaintiff ir.'operly made defend- ant, 71, 1-. when may bo joined as defendant in equity with surviving l^artner, 7-4. when cannot be substituted as party defendant, lOG. -^. cf deceased surety, when he may not be substituted as defendant, 107, i«. defendant, death of one, suit proceed; against survivor, 107, «, et seq. Paktiks — 34 INDEX. 398 Executor — Continued, whtii may maintain ejectment, 73. at instance of, when devisee may bring ejectment on -u-ill, 78, =^^. foreign, when action lies against, 74. foreign, generally may not be sued in local coiirts, 74. foreign, whether can be sued, question of judicial discre- tion rather than of jui'isdiction, 74. of insolvent estate, may sue to set aside fraudulent convey- ance of lands by decedent, 73. joint, who to join in suit on behalf of the estate, 71, ^. suit to quiet title to lands, when need not be party to, 20, 5». suit on lease made by, 73. when may compel legatees to interplead, 113, ^". cannot sue for 1 gacy charged upon land alter estate has been settled without joining legatees as co-complainants, 73, ^K joint, liability for assets, 77. Avhen not liable for assets received by co-executor, 77. when liable individually on contracts, 74. personally liable when carrying on business of deced- ent, 75. not liable to the legatee for elebts paiel by, 7o. when not liable for penalty for failure to discharge mort- gage of record, 75. of eleceaseel complainant when not necessary party to bill of revivor, 22, ^^. of deceased mortgagor, necessary party to suit to recover mortgageel premises, 22, i". suit against to recover trust funds, when legatee not neces- sary narty, 22, 2». sale of land, when joinder of plaintiffs in suit to restrain improper, 9G, ^^. replevin, death of plaintiff, action reviveel in favor of, 1G7, "'. action for damages for injury from act or default of de- fendant, death of plaintiff revived by his, 107, ^^. firm property, surviving partner cannot recover from, when, 74. of deceased j)artner never joined as defendant with survivor in action to recover debt from partnership, 74. firm debt, if both partners be dead their executors cannct be joined as defendants in suit to recover, 74. of deceas' d partner, when may be joined with survivor as defendant in action on firm debt, 89, ^i, et secj. suit against by receiver of estate, what judgment should be made, 77. of sheriff not liable for misfeasance of latter, 51, '■'^ i 399 INDEX. Executor — Continued. death of trustee ponding suit, revived in name of, 32, '^\. joint on death of one, trust survives to the others, 71. ^^. of deceased trustee of corporation, action for p(nalty for not filing report did not survive against, 107, ^^. of deceased trustee, application for appointment of new trustee, necessary parties. 23, ^. surviving may maintain bill for account against represen- tative of co4xecutor, 77. of survivor of joint note, may sue thereon, 88, -j, et seg. never joined with survivor in action on joint note, b8, ■-•*. hoAV sued for personal tort, 7G. ■when tort of decedent may be waived and assumpsit main- tained against, 81, ". when mav maintain trespass or trover for property of the estate, 72, i*^. when executor of deceased wrong-doer may be sued for trespass, quare clausian /regit, 7G. is proper person to conduct the litigation of caveat on behalf of will and claimants under it, 71, '■^. may apply to court of equity to have will construed, 71, 2. effect of sale of land undt r mistake of power under will, 73. Executrix, if married, husband properly joined in suits to recover assets of estate, 22, •». of estate of decedent wife as, may be sued bv husband, G7, **. Exoneration, of suretv, bill of surety to enforce, who joined as plaintifEs, 2i, ^K Equity, abatement of, effect, 105, ^. suit in does not abate bv death of co-plaintiff or defendant, 107, 1'. prior to Code, person for whose benefit a contract was made could sue in, 37, •*, ot seq. when will interfere Avith business of a corporation, C2, &. who properly joined as defendants in. 99. court of, when will not retain jurisdiction of suit against defendants, 9, ^". decree, may be made between co-defendants in, 9, ^'. suit by assignee jipon split demand necessary parties. 31, '^. wife may sue alone in, but husband may be joined, GG, ^. wife mav sue husband, or converse, when, G7, -, et seq. when husband liable for money supplied wife deserted by husband, G8, ^^. separate property of wife reached to pav anti-nuptial debt, G8, ». idiots sue by guardian or committee, Gl, =, rf i^cq. infant may call guai'dian to account in, 57, ^*', ct sfq. will sanction no decree by default against an infant, CO, -. I>T5EX. 400 Equity — Continued. Las full jurisdiction over estates and persons of infants. 57, ^\ court of, uill set aside judgment "by default against lunatiC; when. G2, ^'. when will grant relief to creditor against fraudulent con- veyancti of debtor, 36, *^ et seq. Ti'lien judgment creditor may proceed in to reach property of debtor, 3G, 2«, et seq. judgment creditors, how may proceed in to reach property of debtor, 36, ^=^, (t seq. when will permit set-off against insolvent joint judgment creditor, 55, ^. suits relating to lands, necessary parties to, 26, ^ when suit for legacy must be brought in, 77. relief on ground of^nistake, 9, ^", el seq. equitable owner of notes secured by mortgage, proper per- son to foreclose, .'!6, '^^. ■ who should be made parties to suit, 18, ^, et seq. part of law of States, rules as to making i^arties adhered to, 9, ^K rule for making parties in, Avill not be used to defeat jus- tice, 19, ». cx'-eption to general rule for making parties to suit, 19, ^, formal parlies, misjoinder or non-joinder of, effect, 103, i. who mav be made parties in suit against estate of decedent, 22, 11/ of red( mption, owner of must be partv to foreclosure suit, 27, ^ if all interested parties are before the court, position of, effect, 0, ^. suit on contract, may be ia name of i^erson beneficially interested, 31, *^. ' bill in, brought in name of real party in interest, 2, =. rule, as to who is real party in intei'est adopted bv Code, 31,'. assignee, as real party ia interest rray sue upon non-ne- gotiable chose, 31, ^r misjoinder of plaintiffs, effect, 102, «, etseq. misjoinder of plamtiffs, bill dismissed, objection made at hearing, 102. ^^. non-joinder of parties sufficient excuse for, 103, ^^. non-joinder of indispensable party, effect, 103. ^^ et seq. when answer shows non-joinder, new parties should be made, lOi, ^, et seq. action in, absence of loroper parties not jurisdictional de- fect, 7, 15, (.f seq. want of parties, when taken advantage of, 102, '^^, et seq. 401 IXDEX. Equity — Continued. plaiutifif in suit upon contract may be both promisor and promisee, 31, ^^. same person may be both plaintifif and defendant in same suit, 6, 1^, et seq. generally, who joined as plaintiff in, 96, i, et seq. joinder of plaintiffs in, saving expense not sufficient reason for, 96, 16. bill in by partnership, all partners should be parties, 54, *. will redress rights, when otherwise resort must be made to courts of another State, 9, i^. revival of suit after abatement is not commencement of new action, 105, ^. court of will not pass upon rights of parties to an account, when, 9, *2, suit by distributee to set aside settlement of administrator for fraud, parties, 78, i". when one tax payer may sue for self and all others, etc., to test validity of law to raise public money, 30, ^, et seq. title deeds lost, plaintiff not obliged to "establish before maintaining ejectment, 9, ^'^ proceeding, survivor and representative of deceased joint trustee, when joined as parties, 33, *. will not lend its aid to a party, after a trial at law, unless, 9, i«. when executor may apply to, to have will construed, 71, 2. rule as to change of venue of suit in, 9, ". Equitabta chose, assignor not necessary party to action for an account, 24. ^. Error, none to refuse to dismiss bill in equity for non-joinder, when, 102, ^*, et seq. petition in, who may prosecute, 108, *. writ of, death of plaintiff after judgment, administrator may sne out, 71, '^^. Factor, when may sue for purchase price of goods sold, 84, ". Facts, dtmurrer tor want of. will not reach objection that sur- name of defendant only is set out in complaint. 3, '^. Failure of justice, courts will adopt chancerv rules to prevent when. 9. ^K False return, plaintiffs may join in action for, 95, ^. Family, supplies. See Supplies F-ohly. meelicai services rendered, husband liable fe)r. 68. ^^ et seq. medical services rendered, wife mav become liable for, 68, 23. necessaries furnished, as rule husband liable, 68, ^^, et seq. wife dangerous woman, no defense to action for supplies, 68, 28. general expenses of wife, husband liable for, 68, '-*. INDEX. 402 Father, relinqinshnient of right to wages of infant may be inferred, 56, ^ Federal court, alien sued in State court may remove suit to, 29, ^". when assignee of bankrupt may not proceed in, to recover attached property in, 53, ^'^. suit in, by corporation, citizenship of members of, 10, *. foreign corporation may sue in, although prohibited by law of State, 8, ^. when will not enjoin public officer from canceling license of foreign corporation, 47, ^^. joint stock company, when may sue in, same as in State court, 8, 5. jurisdiction of, action not arising from contract, 8, *. determining rights of parties under State law, follow State court, 8, ^. exceptions to rule for making parties to suit in equity in, 19, ^ et soq. when will not entertain suit, citizen of parties not being shown, 10, *>. proof of citizenship, when jurisdiction depends upon par- ties, 10, ^ plaintiff, when must replead on removal of cause to, 9, '^'^. action in, against executive officers of State prohibited, 40, ^^. foreign sovereign may sue either in State or, 29, ^. Fees, for making sale of land at delinquent tax sale, when due, 50,3. Felons, when no action against sheriff for imprisoning debtor with, 51, i«. Feme sole, wife deserted by husband, when may sue in own name as, 63, i^, et seq. wife may by statute sue as, 68, i^, et seq. statute, wife may recover for injuries to person or charac- ter as though,* 65, ^". Fiction, tipon which action for seduction is based, 83, ^", et seq. •Final settlement, proceeding to set aside and subject lands ol decedent to payment of debts, necessary j^arties, 2, ^^ Finder, of lost property, who entitled to custody, 87, ^'^, et seq. Fines, collected by officer and not paid over, State may sue for, 39, i<. Fire marshal, bill to restrain city from paving for services, must be party, 28, ^'•^. Firm assets, persons who have obtained by fraud are necessary parties to bill against partnership for an accoun^, 24, i". Fish, town under statute may sue, for price of right to, in its streams, 45, *3. Force, when both master and servant liable for unlawful use of, 83, 1^ 403 rNTJEX. Forcible entry and detainer, when administrator niav main* tain, 73. acrainst wife when husband made party, G9, '■^'•^. oreclosure, of mortgage, see Mortgage.' suit, who may not intervene in, 110, -'-. suit of, administrator may maintain, 73. suit against defunct corporation, when stockholder mav defend, 93, ». decree of, who not permitted to open, 5, i'. suits upon homestead property, husband and wife parties, 66, *«. upon homestead, wife may intervene in, 110, '^. of land contract, requisites for injunction, 9, •*". of mtchanic's lien, owner of premises onh' defendant, 27, 1^ of mortgage, nature of suit, 7, ^^ suit, when error to decide upon the validity of the mort- gage in, 8, ^1. of mortgage, necessaiy parties to. 27, i", et seq. suit of, mortgagor i^roperly made party to, except, 7, -^ suit, who may not be made parties to. o, *. suit of plaintiff may abandon security and take judgment on note, 8, *"^. same person may be plaintiff aud defendant in si; it for, 6, ^^. suit, when pendente lite purchaser may be made party to, 5, ^, et S(q. suit, purchaser of mortgaged premises, when need not be party to, 7, '■^'^, et seq. title bond, when assignee of note may maintain. 35, ^^. of trust, mortgage, trustee may sue alone, 32, ^^. decree of, when wife may not prosecute writ of error to revers •. 69, i". Foreign administrator. See ADMr^^sTEAT0B Foreigx. Foreign ambassador, when may sue in our courts, 29, ^. Foreign corporation, See Corporation Foreigx. » Foreign law, l-'W enforced. 9, ^^. Foreign republic, when may sue. 39. ^. Foreign sovereign, mav sue in either State or federal courts. 29, 1. Form, of special appearance, what is sufficient, li. ^''. Forthcoming bond, when no action hes against officer for fail- ure to take in trover, 51, •**. Fraud, generally mere agent not necessary party to suit unless charged with. 24. ^o. charged, no relief in suit unless proved. 9. ^^, et stq. attachment suit, richt of inttrvenor, 111, ^*. one who has repudiated contract for, may sue wroug-doer, INDEX. 404 Fraud — Continued. grantees should be parties to suit to set aside conveyance. whether charged or not, 26, ^e. etc., of officer of corporation, when court will not interfere. 91, -^'. of creditors, conveyance in, relief when granted in equity. 36, ■*!, el seq. convevance set aside for, when creditor not entitled tc have, 8, •■^«. on composition creditors, when money paid on note in. may not be recovered, 34, ^♦'. Avhen creditor may attack in State court, discharge ol bankrupt, on ground of, 54, ^'. defendant brought into jurisdiction by means of service ol bad process upon, 11, ». compromise of right of infant, confirmed bv court, set aside for, 60, *. of right of infants, errors by guardian, equity will investi- gate, 57, ^^. of infants, liable same as adult, 59, ^. all distributees must be parties to suit in equity to set aside settlement of administrator on ground of, 78, J", of husband, wife not liable for unless, 70, ^^ et seq. changes liability of husband and wife for tort of latter, 70,4. charged, in obtaining judgment, bill to restrain enforce- ment of, necessary parties, 28, ■*=, et seq. in obtaining mortgage, mortgagor cannot sue receiver to set aside, remedy, 52, ^^ persons obtained firm atsets by, necessary parties to bill of partnership for account, 24.'^". when plaintiff may join in action to cancel note and mort- gage for, 96, 11. of stranger, when no relief for, 9, i". and collusion, person cliarged with, when proper -pnYty to suit to set asid^ will, 22, '^. Fraudulent, acts, when defendants properly joined in suit to set aside, 98, ^'^, et seq. conveyance, assignee of bankrupt may sue to set aside, 53. ^. conveyance, suit to set aside necessary party, 26, '-^^ 24, ^^. conveyance of husband and wife, suit to set aside, she should be party, 69, ^^. grantees necessary parties to suit to subject lands of debtor to payme nt of his debts, 26, *». representations, when assignee mav recover money advanced for assignment of demand, 34, i'. representations, when all part owners of chattel liabls for in sale of, 81, '•'«. 405 ^'^^^^ Fraudulent — Continued. breach of trust, suit for exception to rule that all trustees must be parties, § 33, ^ when joint owners of vessel need not all unite in action to recover, 81, ^^. Freight, joint owners should unite in action for, 81, ", ^. Funds, in hands of third person, suit by creditor to reach, necessary party, 21, 6. city, necessary party to suit to restrain illegal use of, 28. ^i>. Garnishee, process, person improperly injured bv, mav recover when, 38, i'. proceeding against, to compel payment of money to judg- ment creditor, pi'oper party, 24,"^ ■'^. Georgia, county can only sue in its own name in, 41, ^. county must be sued in corporate name, 42, ^. Goods, when bailee guilty of conversion of, 87, '^^. delivered to common carrier for transportation, who may sue for injury to, 87, ^, et seq. consigned, time of liability of common carrier as such for, 87, », et seq. consigned, who may sue common carrier for loss of, 87. ^. when consignor may intervene in suit for detention, 110, ^^. sold by husband to wife, when latter may not maintain replevin for, 65, ''. equitably property of wife, when husband mav sue as her trustee, 06, K when lost by fraudulent acts of a person an action will lie, 88, «. sold and delivered, action for price against grantor, neces- sary party, 24, ■'^. stock of, entrusted to care of receiver, liability for, 52, -**. attached, sheriff may sue when taken from his possession, 51, 6. when joint action to recover, will lie against attaching creditor and officer, 98, ^-^ et seq. who may sue for trespass de bonis, etc, 38, ^. Government, cannot be sued without its consent, 40, '., et seq. Governor, when may prosecute an appeal, 48, ^ right to sue the, is matter of favor, 40. **. not responsible to judicial department for performance of duties, 48, 2. Grantee, fraudulent, suit to cancel conveyance to, necessary parties, 26, ^^. frauduk^nt, necessary parties to suit to subject lands of debtor to payment'of his debts, 26, *'^. of lands by verbal contract, when necessary i^arty to cred- itor's bill against grantor, 24, -^. IXDEX. 40G Grant 36 — Continued. portion of land sold by, suit to correct misdescription in deed, necessary parties, ^ 26, '^^, should be parties to suit to set aside a conveyance, 26, '^^. Grantor, should be party to set aside conveyance fraudulent as to creditors, 26, '^i, et seq. common, in action of ejectment, title dcraigncd from suffi- cient, 9, '^K misdescription in deeds of several prior, suit to correct, necessary parties, 26, ^'*, et aeq, of lands, when is not proper party to suit to correct mis- take in conveyance, 26, '^'^. of trust deed, suit to adjust ( quities between, debt paid by one, necessary parties, 23, ^'. suit to !set aside deed of, since deceased, for benefit of wife to trustee latter must be party, ^^, ^. Grass, when one co-tenant may recover for that sold from the common i^roperty, 82, ^^. Guaranto:", goods sold and delivered, action against, necessary party, 24, ***. mav be sued jointly with other persons liable upon note, 97, 23, et seq. when may be joined as defendant, 07, ^. when may be joined in action against principal, 88, ^^. Guarantee, what is sufficient, 97, ^. Guardian. See Committee. not liable for debt of ward, 57, "^K no joint action upon debt of ward against both jointly, 59, *>. when liable to physician for services rendered slave of ward, 59, ^ suit against, by ward for an account, necessary parties, 24, ', et seq. may be sued alone upon contract for board and clothes of ward, 21, i-^. sureties of not liable for note given for board of ward, 86, 3-^. surety of, when bill for account will lie against alone, £6,^". when joint suit will lie against sureties and for an account, 86, 31. of infant cannot enter appearance for time, 15, '-. when infant appears bv, pleading should show due appoint- ment, 56, 2a, 58, 11. ^ right of infant to call to account, 57, i^ et seq. action against, for an account, by infant ward, necessary parties, 21 , **, et seq. action by infant upon bond of, how prosecuted, 57, 22. former, action by infant against, upon bond of, how brought, 57, -'i. 407 I^'DEX. Guardian — Continued. infant defends by, ? 58, '^. errors of in fraud of rights of infants, equity will inspect, 57, ^\ estate of deceased, when infant heir of ward may pursue her claim against, 5G, =*. jud.?ment should bo entered against infant, not against, GO, \ of i- if ant. personal property, may sue in own name when, 57, <*, et seq. of infant may not sue for lands of infant in own name, 57, \ right of infant should be enforced in his name by his, or, 56, ^ et seq. suit in equity to enforce right of infant should be in his name, 5G, ^. infant may sue bv next friend, although he has, 56, i". infant plaintiff becomes of age pending action joined as party with, improper, 57, ^. of infants, necessary party to suits affecting property of latter, 21, s. infant brings suit for partition by, 57, J^, et seq. of infant cannot waive service of process upon infant, 58. ^. in socage of infant has control over lands of infant, may sue to recover, etc., 57, ^. settlement of, with infant. 57. ^^, et seq. trespasses of, infant not liable for, 59 ^^. when will not bo held as trustee of lands purchased with funds of infant, 57, 2". appeal's for insane person or idiot, 15. "•', 62, -. court may appoint by ex parte order for insane defendant, 62, *. of insane person not liable to attorney for services in pro- ceedings in lunacy, 62, ^'^. of insane infant makes defcnpe for, 62. ". application to sell lands of insane person, jurisdiction of court, 13, «. of insane person, monev received by, when no action lies against latter for. 62,' ^K of insane person, when action brought in name of, Gl, ^. name of. omitted in suit by insane person, matter of abate- ment. 61, i". insane person sues by, in equity, 61, °. better practice for insane person to sue by, Gl, '^. of insane person, no action against ward until settlement of account, 62. '■*. Guardian ad litem, difference between, and next friend, 56, ««". when proceedings in insolvency without, void, 60, ^. INDEX, 403 Guardian ad litem — Coyitiiiued. attorney foi' non-resident defendant, who became pending litigation appointed, ^ 11, ^. when court may appoint for insane defendant, 62, *, et seq. when infant appears by, 56, 2^, et seq. infant insane person, appears in action bv, not by attorney, 15,^, et seq. appointment of, for infant, should appear of record, 58, ^°. aiithoriry of court as to appointment of, for infant defend- ant, 58, ^^, et seq. for infant defendant, court may appoint new one on appeal, 58, 18. order appointing for infant defendants, when void, 58, ^^. cannot be appointed for infant defendant until served with process, 58, **. effect of omission to appoint for infant defendant, CO, ^. for infant defendant, when motion for appointment of made by plaintiff, 58, i5. cannot bind rights of infant by submission to arbitration, 58, ^6, et seq. infant defends by, 58, *. defends for infant not served with process, judgment void, 11, 1'. for infant defendant, is not liable for costs, 58, ^i. for infant defendant, only duty is to defend, 58, '^'^, et seq. for infant, who may be, 58, i'.' infant must have in suit, if interests of guai-dian are advei'se, 58, i*. if infant has no general guardian he must have, to defend, 58, 1^. of infant defendant, not a party to the action, 58, 20, et seq. mav not admit away rightte of infant defendant, 58, 2+ 60, 3. for infant defendant, cannot waive any of his rights, 58, 22. time to file dilatorj^ pleas by infant defendant commences to run from time of appointment of, 58, 20. may not waive service of process upon infant defendant, 58, '. or next friend, infant wife sues by, 56, '=*. Hearing, amendment of pleading asked for first time at, allow- ance discretionary, 102, 12. misjoinder of pl-intiffs, generally objection for cannot be raised at, 102, i". wben objection for want of parties may be made at final, 102, 26. Heirs, actions by or against, generally, 78. right of recovery against former administrator for devas- tavit, 77. 103 INDEX. Heirs — Contimied. ■when mav sue administrator for rent of lands of decedent, I 78, '^\ 21. when bill for an account will lie against administrator and, 77. not liable for commissions of administrator, 72, 2«. ■svlien may be sued without joining the administrator, 22, 21. proper parties to suit of administrator de honis non to sub- ject lands sold by former administrator to payment of the purchase price, 26, ^^. placed in possession after administration closed, creditor cannot enforce claim, 75. when should be parties to set aside conveyance, 26, ^, etseq. when chargeable as assigns, on covenant'of ancestor, 78, -*. death of defendant in pending action of ejectment, effect upon, 7S. ^*. death of defendant in real action, new cause of action against, 105, ■*, of judgment debtor, bill to reach property in hands of, necessary party, 2-i, ^i, of debtor, when not necessary- party to suit to reach prop- erty fraudulently conveyed' by, 24, '^^. when may defend pending action, 75. when must be made party defendant to bill by devisee to revive suit, 78, ^^. of intestate cannot bring action upon a claim due the estate 78, i. exception to the rule, 78, ^ generally cannot bring action to recover property of deced- ent, for the estate, 72, -. exception, 72, ■*, *. as rule not necessary paiiies to suit against estate of decedent, 22, i^. of deceased partner not necessaiy parties to suit for account of personal assets, 22, •*5, et seq. when may maintain ejectment in own name, 78. ^i. when may maintain ejectment against administrator, 76. of common grantor, when not necessary parties in equita- ble defense to action of ejectment, 26* =•*. infant, when allowed to pursue claim of deceased mother against estate of deceased guardian, 56, 2. of former guardian not necessary parties to bill against executor, 21. ^^. of deceased gratitor, when necessary party to suit to cor- rect misdescription in deed. 26, '^. when mav recover damages for homicide of their parent, 78, «. ' Partiks — .35 INDEX. 410 Heirs — Continued. known, publication of summons not siTfficient to ^bring before court, § 13, ^, when not necessary parties to suits relating to lands of decedent, 22, 3". wlien too late to elect as to the real property of the estate, 73. when may sue for damages for land taken for public use, 73. necessary parties, when real assets sought to be subjected to payment of debts of estate, 22, ^^. necessary parties to suit by devisee to i-ecover lands, 22, ^^. when necessary parties to suit to recover purchase price of lands of decedent, 22, «, 27, «. of vendep, parties to suit to enforce lien for purchase price of land, 27, 7. when he may treat purchase money as land and recover as such in equity, 78, 2'. wlien rent of lands belongs to, 73. of vendor, when proper parties to suit to enforce contract for sale of lands, 26, ^. of vendor, contract for sale of lands, suits against to en- force, necessary parties, 2G, ^i, et seq. should be party to suit to enforce contract for sale of land to decedent, 73. necessaiy parties in suit to enforce land contract executed by decedent, 22, 7. properly joined as defendant in suit against estate to enforce contract to convey lands, 78, '^. of deceased partner, proper parties to suit for conveyance of lands by person claiming from fii-m, 25, "•*, et seq. may maintain action to set aside tax sale of lands of intestate, 78, ». necessary parties to action against administrator to try title to lands, 22, n. when administrator may sue, for trespass on lands, 73. death of landlord i^ending action to recover possession of leased premises, suit may proceed in name of, 79, i". must be parties to suit to r( cover marital portion, 22, ^2, of mortgagor made partj^ to foreclosure suit, 27, ^'^, et seq. of mortgagee, not necessary party complainant in fore- closure suit, 27, ^*, et seq. when may sue to recover for breach of covenant to pay mortgage, 78, 23. of deceased obligors, when not necessary parties to bill for account, 24, **. necessary parties to suit of partition, 28, ^\ of deceased partner, not necessary party to suit for account- ing of partnership affairs, 25, ^'". 411 INDEX. Heirs — Continued. may petition for appointment of receiver when adminis- trator wasting assets, ^ 75. when may be parties to hill to redeem, 28, ', el seq. revivor in name of, on death of defendant in action to con- demn lands, 105, ^'^. should revive action for specific performance of contract to convey lands, when plaintiff dies pending suit, 78, ^^. IKfssessoiy action not revived against, 76. death of defendant, no administrator, when action revived against, 105, ^^ djath of partv after appeal, no administrator, revived against, 108, X of deceased husband, when should be made parlies to suit by wife to recover her separte property, 21, -^. of deceased joint tenant, when joint action will not lie against for rents collected, 82, '^. when mav contest the execution of a testamentarv trust, 78, ". ' of deceased joint trustee, not necessary party to suit by survivor, 23, 8, of deceased trustee, when not necessary' parties to suit, 23, 2T. of deceased cestui qui tnist, when necessary party to suit to recover trust property, 22, ^•*. must join in action for dcstruciion of title deeds, 78, ^. unknown, sufficient description of, 4, ^*. unknown, jurisdiction acquired over by publication, 13. '. infant made defendants in suit by widow for dower, 66. =0. proper partv to suit by widow to recover dower, interests in lands, 26, 38. proper party to suit by widov/ relating to homestead, 26, ^. Highway. See' Stkeet. bill t) restrain illegal use of, neces-arj- parties. 28, ". Hirer of team, when liable for acts of driver, 83. -^. Holder, of bill of exchange payable to drawer, may sue acceptor, when. 35, -^. of certificate issued at void tax sale, coitnty liable to for amount paid, 42, ^. by indorsement of contract under seal, in form of promis- sory note, rights of, 35. "^^ tf seq. of note, when may sue upon, 35. '^. ef seq. of note, payable to bearer, may sue, 35, '', et seq. of note, payable in specific chattels, transferred generally by indorsement may sue. 35, -", of note as collateral security may sue. 35. '^. of note, lor purposes of collection may sue. 35. '". of note by paper indorsement may sue thereon, 35, ^, et seq* INDEX. 412 Holder — Continued. of note, transferred by verbal assignment may sue as real party in interest, g *36, =, tt seq. of note may sue ■w-he'ther indorsed or not, 35, ^^. of note may sue \vben transferred bv separate -svriting, 35, i«. of notes separate, secured by same mortgage, eitber may foreclose, 36, 2». of note may sue all or anv party thereon, at bis option, 35, IS. of note made to firm, indorsed by one partner, may sue, 35, *. of note of partners no firm name, firm insolvent, rights of, 55, 11. of joint and several note, against insolvent partnership, rights of, 55, i". Homestead, presumption as to, with reference to parties, 26, ^'. suits of foreclosure relating to, Imsband and wife join, 66, 46. interest in mortgaged premises, wife claiming, made defend- ant in foreclosure suit, 69, ^^. wife may intervene in suit against, llO,' ^'^. right, suit to foreclose, wife must be party, 27, ^e. suits relating to, husband and wife, join. 66, **, et seq. suits relating to, necessary parties. 26. ^t* after death of husband, wife may sue when. 66, ^'. suit to restrain collection of illegal tax, husband and wife may join, 66, ^'^. Homicide, of husband who may recover for, 78, ^, Husband, adultery of, no bar to action for crim. con. 65, ^i. ostensible agent of wife, when she cannot be sued as prin- cipal for price of goods, 68, 28. assault upon wife she may not recover for, 67, ". contract of wife to release from jail, binding upon her property, 68, 3". sues alone upon cause of action arising after coverture, 63, 2. ^ sues alone or jointly with wife upon contract made to her during coverture^ 64, ^, et seq. sues alone for contract made with both dui-ing coverture, 68, ^, et seq. rule modified as to liability for torts of wife committed during coverture, 70, *>. right of action for crim. con. not defeated by death of wife before suit, 65, '^. riglit of action for debauching wife, 65. ^^, et seq. liability for debts of wife contracted before coverture. 68, i. INDEX. 413 Husband — Continued. not liable for debts anti-nuptial of wife (Code), § 68, 6. not liable for debts of wife incurred in separate business (statute), 68, '^'K when wife obliged to resort to suit through acts of former, he is properly made defendant, 66, '. deserted wife, Avhen latter may sjie as/^nic sole, 63, ^3. deserted wife's action for slander to latter brought in her name, 65. ^^. may after divorce sue former wife for improvements placed on her lands, 67, ^'^. not liable for fees of attoi'ney of wife in suit for divorce, 68, a«. after divorce wife may sue for monev borrowed during cov- erture, 67, 11. when wife mav join third person as defendant with, in suit for divorce,'67, i". wife cannot sue after divorce for tort committed during coverture, 65, •*-. suit for dower by widow, marriage of pending, husband made party, 66, '^^ has action against any person who entices away wife, 65, -^, wife has no action for enticing away, 65, '^''. may sue wife as executrix of estate of decedent, 67, ^. executor de son tort, when no action against for acts of wife, 70, ^. when mav sue alone for distributive share of wife in estate of dececleut, 66, ■•-. jointly and severally liable with wife for expenses of family (Iowa), 68, i^, el seq. when made party to suit of forcible entry and detainer agaiust wife, 69, ^"*. liable for funeral expenses of wife, 68, '^^. death of, right of action of widow relating to homestead, 66. *'. who may recover for homicide of, 78, ''. insane, wife may not recover as custodian of, G4. ^. when interest of wife is adverse to, she should bu made de- fendant, 63, '. interests of, conflict with wife, she may sue aloue making him defendant, 66, i-'. and wife, when joined in action, 63, i. el seq. mav join wife in suit in equitv even though has no interest, 66, ^ et seq. duty of, to make defense for self and wife in joint suit against, 69, ■*, debt of, when purchaser mav deduct from price of land of wife, 66, *". 414 INDEX. Husband — Continued. suit bv purchaser to dispossess of lands of wife latter must be party, ^ 26, ^s. when should sue alone, for injury to possession of wife's hmd, 66, •''«. when may maintain ejectment alone for lands of wife, 66, ^' . when sued alone in ejectment, lands of wife, 69, '"^". when wife may bring ejectment against, 66, ^^, et seg. when maj' sue"^ for rent of lands of wife. 66, '^'^, et seq. not bound to unite to suit relating to lands of wife, 66, ^o. deed by to wife, or both to third person, fraudulent, wife should be party to suit to set aside, 69, ^^. death of pending action by him and wife for injuries to her land, suit survives to her, 66, ^^ et seq. sale of liquor to, seller and owner of premises jointly liable, 98, ^, et seq. properly made party to suit by wife, marriage pending, 64, *. party, suggeston of marriage of female party sufficient to autliorize making, 63, ^". bill to impeach marriage agi-eement, wife made defendant, 64, ^. liable for medical services furnished family, 68, 21, et seq. as rule liable for necessaries furnished family, 68, ^^, et seq. deserts wife is liable for necessaries, 68, ^•^, ei seq. when not liable for necessaries furnished wife, 68, ^•'. must be next friend in bill by wife, unless, 63, ^'^. when wife may sue upon note made before marriage, 67. ^. joins wife in an appeal, he thereby becomes party to the action, 1, ^^. when may sue alone for conversion of propertv of wife, 65, ^». 1 x- . may sue either with wife or alone for damages, property seized, exempt from execution, 63, *■. cannot maintain replevin against Avife, 67, ^. when right of wife to sue separately presumed, 63, '^. when wife carrving on separate business cannot plead non- joinder of, 68, 3^ death of, pending action by wife to recover her separate property, heirs of made parties, 21, '■^'^. is projier defendant in suit by wife relating to her separate property, 21, 1^, et seq. made defendant in bill to enjoin sale of sepai-ate property of wife to pay debts of, 28, ■*'«. lias what interest in separate property' of wife, 66, ^. is ]iro|)er jmrty to suits affecting separate property of wife, fraudulentlv loans separate monev of wife she mav recover, 65, -ju. ■" - I>-DEX. 415 Husband— Continued. when may sue for money separate property of wife lost by him at gaming, ^ 66. *'. financial embarrassment must be established in suit by ■wife for separation of property. 67, ". action for loss of service of wife, resulting from injury to latter, 65, '. mav sue for special damages resulting from injury to wife, etc., 65. J-', when may sue alone for slander of wife, 65, ^^. liability for torts of wife. 70. i, t^t srq. tort or'fraud of wife not liable for, 70, n, et seq. when may sue as trustee of wife for her property equitably belon-^ing to her, 66, ■*. general rule wife may not sue at law, 67. ^ Husband and wife, when join in action for chattel of wife. Go, K when joined in action upon contract, 63, *, et seg. must jo;n in contract made in relation to personal security of latter when, 65, ^^ when sue for conversion of the jDroperty of the latter, 65, ^'. must be living together to support action crim. con., 65, '**. should join in actions arising before coverture, 63, ^. may not bo sued jointly for contract made during cov- erture, 68, ", et seq. properly made defendants in action to recover anti-nuptial debts: 21. ", 68. *. suit against for anti-nuptial debt of wife, defense, 68. ^. suit upon debt due wifu. effect of death of latter. 63. i^ when may join in action for damages, or husband sue alone, 63,'«. property of latter levied upon by creditors of former, suit to recover damages by, 66, ^. action for injury to latter, death of, effect, common law, 65, 1^ writ of error by, when death of wife abates, 108, '". when action by to recover distributive share of latter in estate of decedent, 66, *i, et seq. jointly and severally liable for expenses of family (Iowa), 68. *i5, et seq. join relating to homestead, 60. ^'■^, et seq. action for injuries to person of latter, 65, ^, et seq. law, join in action for injuries to latter, 65, ^ et seq. interests conflict, she mav sue alone, make him defendant. 66, J-'. when suit by for lands, disaftinnance of sale. 66. ". l^ropcrly sue in ejectment for her lands. 60, ^*, et seq. when niay unite in bill fcr partition, 6G, '^^. 416 INDEX. Husband and Wifa — Coyithmed. when niiiv sue jointly for injury to possession of her land, § 6G, ^< et seq. may jointly sue to recover purchase price of lands, 6G, ^5. when may\inite in bill to quiet title to her lands, GO, -i. may jointly sue for trespasses upon her lands, GG. ^'-K et >^eq. action Ly, for injury to lands of latter, death of either jmrty action survives to other, GG, ^', H siq. may jointly sue or husband may sue alone for obstruction of way to her land, GG, •^"*, et seq. action by. for obstructing way appurtenant to land of wife, death of latter does not abate, 107, ^^ suit for malicious prosecution of latter, except, C5, ^^. mortgage by, suit to foreclose latter should be party, 27, ^'. when assignee of note (non-negotiable) of latter brings suit in name of, G4, ^i. joint note, pleading upon should aver what, G9. '-'. et seq. note of, for debt of husband cannot be enforced against wife, G8, ^'^, ei seq. latter necessary party to restrain action against both, 28, ^". action againsti^ for her separate liability former nominal party, 2, '■^. may unite in suit for separate property of latttr, GG, ^. aciion for slander to wife brought in name of, 65, ^'^, . Indian, may sue for "partition of lands, 29, 21. disability to sue, how taken advantage of, 29, -•^, et seq. may be sued, 29, 25. Indiana, joint obligation, death of co-surety, effect in, SG, i^. Indictmeat, damages recovered by for death by negligence of railroad company, 107, ^i. will not lie against officers of town for failure to repair bridge uukss. 4G, ^". Indispensable party, who is. 18, >^. when judgment debtor is to suit to annul ccnvevance of lands, 2G, *K to injunction to restrain collection of tax to pay bonds, bondholders numerous are not, 28, 2^. when trustee is not, to suit to enforce provisions of trust deed, 23, i«. INDEX. 417 Husband and "Wife — Continued. to bill to set aside will, who are, ^ 22, 2, et ceq. Indorsee. See Holder. Indorsed, note indorsed generally, delivered to on3 partner. firm may sue on, 88, '. Indorsement, of contract under seal, liability, £5, -**. note payable in specific chattels, transferred by, holdei may sue, 35, '^". note as signed without, assignor necessary partv to suit on, 2i, ^\ note made to agent of corp>oration, latter mar sue thereon, without, 90, 1*. of note holder by regular, may sue, £5,, -i, et s^eq. none necessary to enable holdjr to sue, 35, '^. firm note transferred by, of one partner, holder may sue upon, 35, ■*. none, purchaser of note may sue in name of insolvent when, 55, ^. of note by separate writing is good, S5, ^^. Indorser, liability of upon contract under seal, 35, -^. Infant, how appears as defendant in an action, 58, ^ et seq. how may not appear, 15. ^^ et seq. when appears in action by curator ad Idem, 5G, '^^. may appear by guardian in proper case, 5G. -', ct seq. guardian of cannot enter appf-arance for, 15. ^'-. in ane person appears in action by guardian ad litem, 15, when appears by guardian, pleading should show due appointment. 56, -'», appearance and defense of guardian for, when shown by parol. 53, ^^ when liable to an attorney for defending in bastardy pro- ceeding, 59, ■*. contracts of as rule voidable. 59, 2, ct seq. _ contract for benefit of, may sue upon, 56. ^. may .siie for breach of contract of employment, 56, ^ when acts of amount to conversion, 59, ".- debt of, no joint action against guardian and. 59. c. separate property of wife reached to pav debt made while sole, 68, ». plaintiff as much bound liy decree as arlult but, 57. '^. et seq. decree against must be obtained on full proof, 57. ''^. person legallv competent appears and defends, decree binds, GO. ^' aggrieved bv decree, remedy. 7, '3. defendant cannot defend himself nor appoint an attorney, 58, ■'. defends action by guardian or guardian ad litem, 58, •*. Parties -41 418 rs-DEX. Infant— Continued, defense of by either guardian or guardian ad litem same, § 58, 1^ defendant, how brought into court, 11, ^, et seq. defendant, when compromise may be confirmed, CO, ♦. defendant, no decree against except upon full proof, 60, \ cannot be made party for sake of discovei-y, 59, ^^. equity has full jurisdiction over, 57, ^5. cannot administer upon estate of decedent, 56, ^. heirs, when allowed to assert claim of mother to estate of deceased guardian, 56, ^. rights, to call guardian to accomit, 57, ^^, et seq. action by, against guardian for an account, who uecessarj^ parties, 21, ^, et seq. action upon bond of guardian, 57, '^'^, et seq. action against former guardian on his bond, how brought, 57, -'1. should sue by guardian or next friend, 56, ". et seq. guardian of, may sue in own name, when, 57, ^, et seq. guardian not liable for debt of, 57, 2*. when guardian liable to physician for services to slave of, 59, '. settlement of guardian with, 57, ^^, et seq. guardian in socage has custody of lands of, and may sue to recover, etc., 57, '^. has no guardian, guardian ad liteyn must be api^ointed for him, 58, i=*. interests of guardian adverse, guai'dian ad litem appointed, 58. J*. appointment of guardian ad litem, should appear of record, 58, 1^ 60, «. defendant, when motion for appointment of guardian ad litem, made by plaintifif, 58, ^^. defendants, authority of court as to appointment of guar- dian ad litem for, 58, ^<^. defendants, order appointing guardian ad litem for, with naming, when void, 58, i". until served with process no guardian ad litem can be appointed for, 58, «. defendant, effect of omission to appoint guardian ad litem for, 60, '. guardian ad litem, only duty of is to make defense, 58. -^. guardian ad litem cannot waive any of his rights, 58, --. when wife sues by guardian ad litem or next friend, 56, ^^. proceedings in insolvency against, when void, GO, *=. judgment entered against, and not guardian, 60, 1. judgment as binding upon as adult, 60, i". INDEX. 419 Infant — Continued. after majority-, may sue to set aside contract of sale of realty, § 57, ^*. necessary partv to suit to rescind contract for purchase of land, 21, J=». ' note bv for price of land, disaffirmance of, releases sureties. 59, K lands of. pfuardian may not sue for in own name. 57, •. brings suit for partition by guardian. 57, ", et seq. when suit for partition will be denied, 57, '•*. in suits relating to their lands, made defendants, equitv. proceedings to sell lands of. when decree will not bind, GO, y. cestui qup trnst, suit to divest interest in land, necej?sarv party, 23, ^3. attains majority, pending action by, practice, 57, ■*, et s^pq. when not liable for malicious suit' brought bv next friend. 59, 13. action to enforce rights of should be in name of, 56, ^. when may sue by next friend. 56, '", et aeq. may not sue infnr ma pauperis by next friend, but may sue alone, 56, '^^, et seq. court may require next friend of infant to give bond, 56, -'^. next friend of in action may not receive amoimt recovered, 56, 20. wife, when next friend may not sue in name of, 56, '*. who may be next friend. 5*G, -^ next friend need not be relative of, 56, i'. next friend of, status, 50, ^'^, et seq. next friend of, powers over action. 2. ^^. must be parties to all suits relating to their property, 21, ". Slea of infancy is personal to, 59, i. efeudant, when time commences for filing dilatory plea«, 58 25. pleading fails to show partv is an, not ground for demun-er. 56, 25. defendant not served with process, judgment against void. 11, ". defendant may be served by publication, 13, ■♦. cannot l)e served by publication in South Carolina, 13, *. no power to waive service of process upon himself. 58. ^. on error, fact of service of process upon must appear, 58, *". cannot bind his rights by submission to arbitration even, 58, 26. et seq. cannot be brought into court bv stipulation of attoruev. 15. 13. not liable for trespasses of guardian. 59, *", is liable for torts in same manner as an adult, 59, **, et seq. 420 INDEX. Infant — Continued. after majority, liable in assumpsit, for money tortiously taken, ^ r;9,'^ ", et scq. unlawful detainer pliuukl be brought in name of, 57, "J. suit by alone, mere irregularity, cured by verdict, 57, ^ courts of admiralty permit to sue alone for wages, when, 57, ». pretermitted in will, may recover from devisees separatelv, 56, \ writ of entrv, brought in name of bv next friend (Mass.), 57, «. Infancy, plea of, personal to infant, 59, ^ defense to action for breach of promise of marriage, 59, ^. pleaded by defendant, action on joint contract, practice, 59, J^ Informality, in position of a party upon the record, effect, G, '. Inhabitant. See Citizen. Injunction, against authorities of city, prevent giving contract to one not lowest bidder proper parties, 28, ^^. city election to prevent payment of expenses of, necessary parties, 28, ^s. eitv necessary partv to bill to restrain illegal payment, 28, -^^. to restrain city from paying fire marshal for services, latter must be joined, 28, >*-'. against board of supervisors of county, how many should be parties, 42, c. will lie to prevent wrongful appropriation of corporate name, 90, ^^ corporation doing business in excess of powers, bill to restrain party, 28, ^^. public officer will not be restrained from canceling license of foreign corporation, 47, ^''^. when stockholder may maintain to restrain corporate acts, 93, a. death of plaintiff, failure of representative to prosecute suit, does not dissolve, 8, ^'^. when will lie against debtor to prevent fraudulent disposi- tion of property, 3G, ■»-^. bill to restrain illegal use of public highwav necessary party, 28, ^i. plank road to restrain improper interferance with, who may sue, 28, ^^. to restrain action against husband and wife, necessary party, 28, ■*'. joinder of parties plaintiff, not sufficient reason for, 96, ^^. to prevent sale oi separate property of wife for debts oi husband, necessary parties, 28, ■^^.^ J IN-DEX. 421 Injunction — Continued. tij iLstraiii conveyance of dower interest, capacity in which wid'jw made party. § 28, *^. non-juinder of defendants, no objection, 103, '^^. bill to restrain enforcement of judgment, uecessarv parties. 28, *'^, et seq. to enjoin judgment, when sheriff not necessary party, 28, *'. in foreclosure of land contract, requisites, 0, ■*". to prevent payment of j^roceeds of sale of lands to railroad company latter must be party, 28, 2". to i)revent liberally taking lands for public vise, necessary patties, 28, ^^, et spq. to enjoin action at law, necessary parties, 28, ^^. to restrain collection of note, necessary parties, 28, "*'. to prevent fictitious assignee from collecting note, right of assignor, 35, ^^. rule with reference to parties to suit to restrain nuisance, 30, la. final, all persons interested must be parties before granted, 9, a». necessary or proper parties to suit for, 28, '^, H .sy g. will not bo gi-ant€d against a person not a partv to the suit, 23, 20. exception to rule that rights of person will not be deter- mined if not party, 28, ^•^. partner against co-]xirtncr, when will be retained, 9, -"^ when partner may file bill for, to prevent co-partner from collecting partnership debts, 88, ^i. to prevent publication of copy of atlas sold by one mem- ber of firm, necessary partus, 28. ^-. when officer not proper party to bill for, 103. -. status of sheriff as party to action to restrain execution of process, 51, ^i. when, sureties on bond are parties to suit for, 86, -*. to restrain collection of tax to pay bonds, bondholders, numerous, necessary parties, 23, -^. prevent collection of sclioul tax to pay interest on bonds, necessary parties, 28, ^K to restrain'collection of tax levied on property within limits of city latter cannot maintain bill, i3. '^. restrain collection illegal tax on homestead, husband and wife bring, 66, *^. to restrain collection of tax upon school lands county proper party, 28, -*'. when tax payer may not maintain for self and ail others, etc., school tax, 30, ". against Stato and county treasurers to prevent receipt of worthless script in payment of taxes, 50, ^. Pasties— CO 422 INDEX. Injunction — Continued. to prevent execution of tax deed clerk of board of super- visors necessary party, f_ 28, *^. town must be party to bill to restrain paying out money voted, etc., 46, ^^. bill of, to prevent sale of i)roperty by trustee for benefit of creditors, necessary parties, 28, ^^ bill of, to restrain sale under trust deed, trustor necessarv party, 28, ^o. Inmate, of county hospital, county not liable to, for unskillful treatment of physician, 42, '^2. Insane person, or idiot appears in action by guardian, 15, ^. can only appear as defendant by guardian or committee, 02, ^ et seq. when committee cannot sue for, 61, ^^. liability upon contracts, 62, ^, et seq. defendant becomes, pending litigation practice, 11, ^. defendant becomes, pending suit guardian made party, 62, ». common-law rule as to defense of, 62, ''. ■when not necessary party to suit in x>ersonam in equity, 21, ^. estate of, liable for expenses of proceeding in lunacy, 62, ^'^. action by, without guardian, matter of abatement, 61, i". not liable to action by guardian for services, etc., until account settled, 62, ^'K when no action against, for money received bv guardian, 62, ". when court may appoint guardian ad litem for, 62, *, et aeq. wife may not recover as custodian of, 64, ^. judgment should not be entered against, by default, 62, '''. judgment by default against, when court of equity will set aside, 62, '^\ is proper party in suits relating to his lands, 21, ^. application of guardian to sell lands of jurisdiction of court, 13, e. must be party to suit for partition, 28, i*. trustees of hospital for, when may be sued to determine title to State lands held by them, 33, *. suit for interdiction, must be personally cited, 62, ^ may sue in own name, 61, 2. when action brought in name of, 61, ^ et seq. found, ex parte proceeding, may bring action in own name to traverse proceeding, 61, 1. suit brought in name of either self or guardian, 61, ' . better practice to sue by guardian, 61, =*. when suit brought in name of by next friend, 61. ". liability for torts, 62, 1^. Insolvency, wlien discharge in, no defense to action bv prin- cipal, 84, K INDEX. 423 Insolvency — Continued. pioeeedings in against infant, when void, J GO, ^. of principal, no defense to surety on forthcoming bond, 85, 21, et seq. of principal, right of surety to contribution depends upon, St). ^, et seq. Insolvent. See Bantcrupt. laws of State, alien resident entitled to benefit of, 5.5, '. when, no capacity to appear in court, 55, '-. one of two obligees on rt])levin bond becomes, suit by solvent obligee alone, 55, *. joint obligors dead, representatives not necessary parties to suit on bond of, 2i, ^'^, et seq. suit on bond of, on. death of, suit may proceed against sureties, 55, ^'J, surety may file bill against co-surety on bond for exonera- tion, 55, '. corporation, when creditor may join with in suit to set aside proceedings in insolvency, 55, '•'. discharge of rights after, 55. ^'^, ft seq. discharge of, no bar to suit by alien, 55, ^s. discharge of, when will not' reach defendant in trover, 00, 18 debtor, plaintiff in pendinc suit declared to be, may still proceed in his name. 55, ^. joint judgment creditor, when equity will permit set-off, 55, ^. judgment debtors, not necessary parties to creditor's bill, 21, i«, et seq. estate, suits relating to necessary parties, 24, '*'. et seq. guardian, when bill for account will lie against surety of alone, 8G. =*o. vendor, suit by to enforce vendor's lien to land, when adverse claimants to title made parties, 27, ''. lessee, assignee of should be defendant in suit to set aside lease, 55, i*. pui'chaser of note without indorsement, mav sue in name of, 55, 6. party becomes pending suit, effect. 24. '^''. partner, selling interest to i^ay individual debt, co-partner may sue. 88. '^'^. partner, when ground for appointment of receiver, in suit for settlement of firm affairs, 55, ^^. partnership rights of holder of joint and several, note against, 55, ^^. partnership, no firm name, partners execute note, rights of b.oldor, 55, 11. necessary parties to suit of to recover property. 24, '^. 424 INDEX. insolvent — Continned. sureties, not necessarv parties to bill bv surety for contri- bution, ^ 24, ^K " Instrument, not recorded, purchaser holding by, need not bo party to foreclosure suit, 7, ^^. executed jointly to several, "when one niav sue in name of all, 36, '•'«. Insurance, part owner of chattel liable to co-owner for failure to procure, 81, '■^*. joint owner of vessel should unite in action for, 81, ^. policy to "whoever may be concei'ned at time of loss," necebsary party to suit on, 24, 3». policy of, obtained by B. from X., loss payable to A., if loss occurs either A. or B. may sue, 37, ^". policy of by X. upon life of A., loss payable to C, A. cannot avoid on ground of fraud, 37, **. Insurance company, upon payment of loss occurring through negligence of third person, right of action accrues to, 38, 13. suit by to set aside release from damages given by policy holder to wrong-doer, pi-opcr party, 24. ^". who has paid loss arising from wrongful act of stranger, may sue, 90, ^^. Interest," when citizen may sue for self and all others to test validity of law affecting public money, SO, **, et seq. contingent not sufficient to support action, 31, i^. in subject-matter of bill in equity, persons having proper parties, 18, i, et seq. suit in equity by assignee upon split demand necessary parties, 31, i^. of liusband and wife conflict, either may sue other, G7, ^. of wife adverse to husband in action by, she should be made defendant, Co, ''. of husband adverse, bill bv wife, former made defendant, G3, 1^ 66, 1^. wife no such as requires her to be made party to suit for common property, 21, 2+. dower in land, widow may sue purchaser of husband for, 66, «. when committee has adverse, to insane ward, latter neces- sary party to suit, 21, ^. of insane person and guardian clash, action brought by former how, 61, **. of insane person, court of equity wdll set aside default when necessary to protect, C2, i''. in propcrtv, suit bv insolvent to recover, necessarv parties, 24, 2a. ' ' action upon an instrument by one not a party to it, must be shown, 31, ^ 2. I INDEX. 425 Interest — Continued. to enable person to intervene, § 110, i. amount of, 110, *. receiver may protect by intervention, 110, «. no identity no objection to joinder of defendants in equity, 99, 1, et'seq, unity of, to enable person to be joined as co-plaintitf in acuon upon contract, 94, ^, et seq. of party plaintiff to joint snit in equity, 96, ^, et seq. no communitv of in co-plaintiflfs, fatal objeciion, 102, '", 100. a. plaintiffs having separate and distinct, proper motion, 102, i«, et seq. common, when no non-joinder, i)lain tiff brings bill for self and all having. 100, i«. in realty, contract of sale of, infant after majority may sue to set aside, 57, i*. legal in contract in whom, 31. ^. party to a contract under seal has the legal. 30, ^ ft seq. person Avithout cannot insit^t on being made party, 104, '^. "what, person must have to constitute necLSsarj' party, 18. i'. of persons iu suit, exceptions as to rule making 'parties, 19, 1, el seq. in object of bill in equity, persons having proper parties, 18, ^, et seq. person without, should not be made i:)laintifl' 20, <». what plaintiff" mitst have in oi'der to maintain an action, 31, 1". et seq. beneficial when plaintiff need not have in action upon note, 35, 1", et seq. of person in suit, when may join as plaintiff, 30, *. in action common or general, one p:rson mav sue foi benefit of all, 30, *. class, one person may not sue for own individual benefit. 30, ^. real party in, see Real Party in Interest. real party in, when plaintiff" is under Code, 34, '■^, et seq. real party iu, when made a defendant, 100, '■^'-. equity will hear cause if real parties in, are before it. 103, ^. of person seeking to be made party to partition suit must be shown, 5, ', et seq. parties all before court of equity, position of, eft'ect, 6, ^ iu p.'ndiug suit transferred, action continued in name of. 9. ^. transfer of pending action, vendee does not thereby become party to the action, 1, -*•. transfer of pendente lite, effect of as to making partiea 20, ^ et seq. 426 INDEX. Interest — Continued. det'Ludant parts with his, in suit, new parties not necessarv, § 7, i^ plaintiff transfers pending suit, effect, lOG, •', et seq., 3i, ^. impending action transferi-ed after judgment, appeal taken in name of assignee, 108, ^*. persons acquire, before execution of trust, not necessary parties to bill to enforce, 23, ^'. Interplead, when a person compelled to, 112, '. sheriff, when may compel creditors to, 51. ''. when sheriff may not compel, creditor and adverse claimant of attached propert}' to, 51, *'. • Interpleader. See Bill of Ikterpleadeb. provisions of Code cumulative, 112, ♦', '. what is, 112, -. when lies, 113, ^, &, 6, when proper, 112, i. when improper, 113, ^-, ^'■^. property brought into court, 113, ^. to determine claims to legacy, 113, i". will, instruction as to, 113, i^. jDosition of plaintiff, 113, ^. position of defendants, 115, •>. plaintiff may not dispute rights of defendant, 115, '. issues, how disposed of, 115, *. power of court over fund, 115, ^. decree in, 115, ^ effect of decree, 115, 2. when cost alloAved, 115,3 appeal in, 115, ^". bill of, what is, 1 12, 8. bill of, allegations, 112, '^. should set forth the several claims, 112, ^°« affidavit as to collusion, 113, «. when cross-bill proper in, 115, ^. when demurrer to, proper, 113, ^<'. when demurrer sustained, 113, J=. when may be filed, 111, 2. who may' file, 114, 1. who may not file. 114, 3, who may file bill in nature of, 114, *. distinction between bill and bill in nature of, 112. 5. time for filing, 113, ^', j14, «. excuse for filing, 112, « object of, 112, «. right to maintain, 113, *. what necessary to maintain, 114, ^. maintained only by one in possession, 113, ^K ixDEX. 427 Interpleader — Continued. what plaiiitifl" admits, § 114, ^^. in nature of, city may maintain claimants to an office. 43. ''. "when corporation mav maintain against claimants to dividend, 90, i«. wlien depositary may maintain. 114, •>. garnishee may maintain, 113, ^^, when landlord may maintain, against attaching creditors of tenant's crop. 79, ''. when maker of noto may maintain, 114, ". when stockholder may not maintain. 114. '. when tax payer may not maintain. 114, i'\ tenant may iile Avhen, 79, '^^, 114, ^^. when trustee cannot maintain. 114, ^^ when trustee may maintain, 114, ^-. Intervene, landlord 'may, how, 110, ^^. who riuiy, in suit to enforce a tax, 110, -K who may, to resist appointment of a trustee, 110, -^. who may, in actions for real estate, 110, ^*'. who may not, in ejectment, 110, ^^ n-ho may not, in foreclosure suit, 110. --. who mTy, in suit for mining claim, 110, -". who may, in partition, 110, ^'. wife may, in suits relating to homestead, 110, ^-. when Avife may not, in suit to quiet title, 110, '**. when assignee' of note may, llU, ^^. when assignee may, suit on trust deed, 110, -'. when attorney ma'y not, in suit by administrator, 110, ^8. when consigiiors may, 110, ^'^. Intervener, who is, 109, '^. character before court, 111, ^. when, may be substituted as party. 111, ^^ interest of, 110, ^ when may interpose statute of limitations, 111, ^- must show what right, 110, ^. ' may assert rights against whom. 111. '^. rights of, do not help plaintift'. 111. -'■. rights in attachment suit, 111. ^^, ^^. has standing in court until. 111. i'-'. must not d.lay principal suit. 111, ^. granted reasonable time, 109, •*. wliat delays entitled to. Ill, i". must take* the action as he finds it. Ill, *. may not urge irregularities, HI. *>. ma'y not object to form of action. 111. ^. Avhat exceptions may not plead. Ill, ". Avhen may dismiss intervention, 111, ^'. bound bv decree, 111, --. Intervenor — Contimied. right to appeal, § 111, 2^. separate appeal by, effect. 111, 3«. may not appeal from final jurlgment. 111, -5. defendant should be party to proceedings in error, 111, '^. Intervention, what is, 109, ^ how made. 109, K when takes place, 109, *. ■when appearance is not an, 109, ^. when not proper remedy, 109, ', 111, *. when cannot be maintained, 110, ^. when service waived, 109, *». interest necessary, 110, ^ amount of interest in, 110, *. must not delay suit, 109, **. must not change form of i^roceedings, 109, ^^ who must take notice of, 111, ^". when parties may not object, 109, ^i. at what stage of "suit proper, 109, ^, must be before judrment, 109, ^^ when too late, 109, ^. parties when need not notice, 109, ^". right exists only in civil actions, 109, ^'^. right exists in mandamus, 109, ^'^. m jii-ohibition, 109, ^*. no right of, in quo icarranto proceedings, 109, ^^. no right of, after suit abandoned, 109, ^^. when dismissed, 109, i"-i'. when falls without cause being set for trial, 111, ^s. when intervenor may dismiss, 111, ^'. in attachment proceedings, 110, ". by creditors in attachment suit, 110, ^. right of assignee. 110, '. by receiver, 110, •>. not proper by general creditor, 109, i^. when not proper in ejectment, 109,^°. Avhen not proper in foreclosure suit, 110, '-. owner of lost note, may assert rights of, 35, ^g. when sureties of defendant in replevin mav assert rights of, 86, ^^ X - o execution, debtor asserts rights bv in suit to set aside sheriffs sale of his lands bv, 5, ^^/ rights of appeal. 111, 21. appeal lies from what orders, 111, ^6, Iowa, rule as to who may sue on bond given to secure particu- lar person, 36, «. Issue, meaning of words ''after issue joined" in act to prevent abatement, 105, *. i>'DEX. 429 Issue — Continued. raised bv answer in natm-e of plea in abatement arises, must be tried. ^ 102, i«. how corporate existence placed in, 90, '^. in interpk-ader, bow disposed of, 115, ^. Jail, one apartment, no action against sheriff for imprisoning debtor with felons, 51, i^. county liable if it does not furnish, 4:2, ^'^. county not liable for erection of, near residence of private person, 42, ^'*. contract of wife to release husband from, binding upon her property by, 68, "^o. insecure, no 'defense to action against sheriff for escape, 51, 10. Joinder, of claims against estate, 75. of defendants in equity, 9i), '^, et seq. ot" defendants in actions upon contracts, 97, i, et seq. of defendants, when improper in action upjn contract, 97, ^. of defendants i i action upon joint contract, 97, ', et seq. joint and several contract, survivor and representative of decedent never joined as defendant, 74. of defendants, when proper in suit to declare deed to be a mortgage, 99, * of defend;ints in ejectment, when jiroper, 98, '**. of defendants, when proper in suit to annul fraudulent acts, 98, 1^ et seq. person having common interest refusing to be made plain- tiff may be joined defendant, 6, •*, et seq. of defendants in action upon foreign judgment, when proper, 97, *. of defendants in suit to set aside certificates of title to land, when ])roper, 99, ^. in suit against makers of note, part of whom execute mort- gage, 99, '. who made defendants in action upon note, 97, ^, et seq. defendants, survivor on joint contract, and executor of decedent, improper, 107, ^^, et seq. when defendants properly joined in action for tort, 98, ^. of towns as defendants, when improper, 40. '. of defendants, who proper in suit to establish trust, 99, ^. when lieir mav be sued alone upon claim against estate, 22, 21, et seq' when landlord must join tenant as co-plaintiff in action to suppress nuisance, 79. '^. persons holding several notes secured by same m«u-tgage, in suit of foreclosure proper, 9G, ', et ."^eq. legal and equitable owner of note, improper in action thereon, 102, ^. i30 IN'DEX, Joinder — Continued. ol parties, equitable suit against administrator, proper, § 22, 1^ et aeq. of parties in suit to foreclose mortgage, 27. -^ et seq. of parties in suit to restrain nuisance, 30, i-^. of parties, proper in suit to enforce specific performance of contract for sale of lands, 2G, ^, et seq. who may be joined as plaintiffs, 94, 24. ^'^. ■who made plaintiffs in suit in equity, 9G, i, et seq. of parties plaintiff in equity, saving expense not sufficient reason for, 96, ^^. of parties plaintiff witliout knowledge or approval, effect, 9, '', et seq. of plaintiffs, when proper in suit to obtain relief upon con- tract ill equity, 99. ^. of plaintiffs, when improper to restrain execution sale of Lmd, 96, 1-1. infant plaintiff attains majority pending suit, joinder as party with guardian improper, 5/, ^. of parties, joint payee, personal representative, and sur- vivor cannot unite as plaintiffs in action on joint note, 72, i». of plaintiffs in suit to restrain maintenance of nuisance caused by flowing lands, 95, ^^. plaintiffs may join for false return by officer, 95, ^. stranger imijroperly joined as plaintiff, motion to strike out proper, 102, ^^ et seq. plaintiff transfers interest pending suit to a trustee, proper, 23, «. surviving partner and executor of decedent may be as de- fendants where, 74. firm debt, if both partners be dead their executors cannot be joined as defendants in suit to recover, 74, ^^. (La.), of surviving partner and rtpresentative of decedent, proper, 25, >*. of defendants for sole purpose of acquiring jurisdiction over non-resident, 103, •*, 10, **. improper, sheriff and predecessor, in action for property taken by former and lost by latter, 51, '^^. if shfrift'and deputy for tort of latter alone, improper, 51, ^'^. guardian and sureties may be in action for account, 86, '^^. of parties, when sureties on several separate bonds may be joined in one suit, 86, ^^. when sureties may join in suit for contribution, 86, ^. when sureties may bring joint action to recover amount paid, from principal, 86, ^, et seq. relief asked against surety, of principal proper, 24, ^". when principal need not be in suit against surety, 86, ^^ INDEX. 431 Joinder — Continued. survivor and representative of decedent, never joined at lav\' in action on joint contract, ^ 74; maybe in equitj-, 7i. wlien tax payers properlv unite in suit to set aside contract of district board, UG, ^^. of parties, tenants in common may join in suit to quiet title tj their common estate, 82, ^. tenants in common of mill may join in action for diversion of water from, 82, '^^. oi ce:4nis and trustee as defendants generally proper, 33, ^. ce.^tui need not be in suit by trustee to foreclose trust mortgage, 32, i^. of trustee and cestui in suit relating to trust funds, 32, ", of cestnis in action against trustee to recover share of trust funds, 33, 21. m of wife, when cause of action would survive to, proper, 63, ^. ■ of wife proper, in action upon her contract made when sole, F . G4, 1, et seq. of husband and wife in action, when proper, G3, i, et seq. Joint, plaintiffs, when proper for tortious act of defendant, 95, ". Joint action. See Actiox. generally, when will lie, 95, ^, et seq. what proof necessary to support, 94;, ^i, et seq. for recovery of bailed property, when, 05, '•'. when brought for breach of contract. 94, ^^. when will lie against parties to building contract, 86, i^. none for conversion of whale taken by one of two vessels under contract of mateship, 95, ■*. when lies upon covenant. 94, i*, et seq. rtpon joint demand, 31, ^^. wlien cannot be maintained for deposits in bank. 91. "'. when will lie against officer and creditor for goods attached 98, 1^ et seq. for selling liquor to husband, plaintiff injured, whec prooer, 98, ^, et seq. for sale of liquor to husband, plaintiff injured, when no< proper, 98, », et seq. when lien of material men may be enforced in, 96, '". when will lie for cancelation of note and mortgage, 96, ". none for slander, 95, i^. for slander to husband and wife will not lie, 65, -". when will not lie against heirs of joint tenant for rents col- lected. 82, 26. against defendants for tort, when not proper, 98, ^ et seq. for trespass, injury to chattel. 95, '. for trespasser of lierd of cattle, when proper, 98. ". et seq. for trover and conversion, proper judgment in, 98, ^K 432 INDEX. Joint contract. See Conteact Joint. who made defendants in action npon, § 9'^' S ^^ seg. survivor of, wlicn may sue, 94, '. ■U'hen severence of cause of action upon, 9i, *^. judgment, bar to another action, 07, ^'^. Joint and several, contracts. See Contracts Joint and Several. plaintiff may treat tortious acts as, 89, ^^, 98, -^ contract, who sued iipcn, 97, '•*. et seq. Avhen contracts of partners made, any one may be sued, 89, ^ et seq. contract, judgment on, effect, 97, ^^, et seq. liability, judgment entered against persons ov^r whom jur- isdiction acquired, 97. ^". instrument, statute, judgment may be entered against one party to, 8, 27. Joint execntcrs. See Executor Joint. Joint owners, all must unite in action to recover bailed prop- erty, 95, '3. of real estate, right to partition, 82, ^2, et seq. of vessel should unite in action for freight, 81, ", ^. Joint stock company, when may sue in federal court same as in State court, 8, ^. Joint tenants, generally suits relating to personalty. 81. ■when cannot recover rent from a co-tenant, 82, '^^. See TcRT. Joint tort, what acts necessary to constitute, 98, ^'^. Jr.. no part of name of person, 3, ^. Judge, of court of general jurisdiction, not liable for judicial acts. 49, «. Judicial, discretion. See Discretion Judicial. acts, judge of court of general jurisdiction not liable for, 49, «. Judgment. See Decree. administrator may sue upon in individual capacity, 72, 1^. suit en by foreign administrator. 71, ^'. motion to amend, defendant bankrupt, effect. 54, "5. plea of discharge may be filed by bankrupt at any time before. 54, '^, et seq. plaintiff becomes bankrupt after and before arpcal, effect, 53, i«. data of, plaintiff becomes bankrupt after submission of cause to supreme court, 53, ^o. what is proper against defendants in action upon joint bond, 97, -\ et seq. persons bound by, although names not used as parties to action, 7, '", et seq. infant, bound by, same as adult, 60, '". INDEX. 433 Judgment — Continued. appearing bv officer of State in suit will not bind it bv, § iO, 1*. action for plantation supplies furnished wife, husband hot bound, 6«, i«. certified copy of, sufficient to estaljlish claims in probata court, 7i. on joint contract, bar to another action, 97, ^^. on joint and several contract, tffi.ct, 97, '', et seq. that living person is dead, void, 7, •>. party dying after, in whose name appeal taken, 108. '. death of one of two or more plaintitts or defendants, within a year after, execution how issued, 105, '. against estate of decedent, when administrator not liable to pay, 72, 2'. in name of decedent, administrator not liable for money collected on, when, 75, against decedent and another, remedy against latter must be exhausted before suit agai-st estate, 9, '^. defendant against co-defendant must be cross-pleadicjr, 11, **. joint and several liabilitv entered against persons served, 97, 30. upon joint and several instrument, by statute may be entered against one party to, 8. ^'. erroneous, when tenents in* common may join in an action for damages for land sold uiid-jr, 73. what should be rendered in action by receiver against executor, 77. foreign, when defendants mav be joined in action upon, 97, *. bill to enjoin when sheriff not necessary party to, 28. *'-. bill to restrain enforcement of necessary parties, 28. *^. recovered by husband and wife survives to wife, 107, -". when cannot be rendertd against husband in joint action against self and wife, 2, ^'■^. against wife in joint action against husband and, although husband discharged in bankruptcy, GS, ^'^. when entered against husband and wife for tort of latter, 70, 8. should be entered against infant and not against guardian, 60, 1. against infant not served with process void. 11, ". not absolutely void for omission to appoint guardian od litem for in'fant defendant, CO. ''. et aeg. shoulel not be entered against insane person by elefaiilt, C2, '\ bill of interpleader should be tiled before, li3, ^'. intervention must be before, 109, '^. Parties — 37 434 INDEX. Judgment— Co7itinued. interveiior may not appeal from filial, § 111, ^j. justice, entitled to aid of court of euaucery to enforce, when, 36, ^'. justice, creditor entitled to aid of equity, when, 3G, ^'. motion to correct, who may be heard on, 7, '-. against non-resident proper, jurisdiction over obtained by joinder with resident, lO, i". in foreclosure suit may be on note alone, 8. '''•^. in action upon note against maker and indorser, may be taken against maker alone, J)7, ^"*, et seq. in action upcm note against maker and indorser, may bo taken against indorser alone, 97, ^^, et seq. upon some of the parsons liable upon note, effect, 97, 21. extent of, against makers of note part of whom execute mortgage as security, 99, ''. when 2>artner cannot confess, to binel firm property, 89, ^^ payment of, to nominal party to, when no satistaction, 2, ^^. action will lie against town upon, even tliougli portion paiel by statutoiy assessment, 46, ^. peiidexie lite purchaser bound by, 7, ^3, ft seq. against corporation fraud of ofiicers of, when receiver may sue to set aside, 62, ^^. receive^r proper person to enforce, in ci editors' suit, etc., when, 8, ^s. in 7-em, proceedings against absentee, 29, —. upon scii-e facias, what entered for plaintiff, 105, 1^. scii'e facias to revive, how regareleel, 105, ^^, et st^q. against deputy sheriff action de bonis, no action after, against sheriff, 51, '*. who may sue upon, 36, *^ et seq. payment by surety, principal should Lave notice of appli- cation tohave it assigned, 86, i". Avhat may be renelereel in trespass quare clauswn fregit against several defendants, 105, &. proper in joint action for trover and conversion, C8, i'. undertaking to secure harmless from, when action will lie before payment, 9, **. Judgment creditor, no right of action against purchaser at cxeculiun sale for breach of contract, 36, ■*^, et seq. when niay pre)ceed in equity to reach property of debtor, 36, >***, et seq. crpii ty, how may proceed to reach property of debtor, 36, ^'^. foreign, right to sue to subject lands of debtor to payment of debt of, 29, ^ theory upon which equity acts in granting relief to, 3G, -3. when may unite in suit to enforce liens, 96, ^. insolvent, when equity will permit set-off against joint, 55, &. INDEX. 435 Judgment Creditor — Continued. iiuulo parries to creditor's bill without order of court, § 102, 31. proceeding by, to compel garnishee to pay over monej', proper party, 24, *^. Judgment debtor, when may bo bound in suit to reach trust funds, 5, -i^. when indi.spensal^lo partv to suit to annul convevancc of his lands, 2G, ^K when is not a necessary party to suit to set aside a convey- aiK^o of his lands, 2G, "*. Jurisdiction, any motion in pending cause other than to the, is gLiK ral appearance, 14, ^, ft seq. appearing for solo purpose of presenting question of, is special, 14, **. special appearance to object to, should be confined to, 16, *. federal courts, when depends upon citizenship of parties, proof, 10, 5. of feeleral courts in action not arising out of contract, 8, *. how jurisdiction over defendant obtained in action to enforce personal contract, 11, ■*. corporation submits to by doing business in foreign state, 91, 1. how acquired over foreign corporation, 91, ^, et seq. meaning of term " defendant" as afiecting question of, 10, ^. person made defendant for purpose of acepxiring, how ob- jected to, 103. 3. defendants rt sidents of different counties, suit in either proper, 10, ^. definition, 10, i. whether fureign administrator may be sued in local court, question of juelicial eliscretiou rather than of. 74. of court of equity depends on nature of rights of parties before it, 7. ^'^. when couit of equity will not retain in suit against defend- ants. 9, 5U. of court of insolvency, does not reach citizen of another State unless, 55, ^'. Eroceedings in intervention not question of, 109, ^, ow obtained in suit to enforce equitable lien over defend- ant non-resident, 11. 3. joint and several liability, juelgment entered against whom acquired. 97, '^^. of court over lands of insane person, upon application of guardian t ") sell, 13, ''. in suit to foreclose mortgage, court must have ov^r person and thing, 7, ^'. of court over nou-resielent, how acquired, 12. K 436 rxDEX. Jurisdiction— Continued. vi court over non-resident served l)y publication, ^ 13, ^ over non-resident not acquired in personal action by publi- cation, 13. 5*. cannot be obtained over non-resident by impi'operly joining a resident, 10, ^. over person of non-resident, appearance of, is waiver of objection, 16, ^'. of State over propertv of non-resident -svithin its borders, 12, 2. of court over property of non-resident, liow acquired, 12, 3. when depends upon ]virty it is one named in record, 10, ■■^. presumption as to, 10, ^', et seq. presumption as to, in absence of proof orfrom the record, 10, 12, et seq. >Yhen presumption as to, from recoi d of court ceases, 10, ^'^. ■ presumption over non-residents, 12, ^. acquired over unknown heirs by implication, 13, ^. generally a party may pursue his rights in any court having, 8, ^ Jury, Avhen county liable for board of, 42, ^'^. Justice, rule for making partii-s to suit in equity, courts will not pca-mit it io deleat, 19, ^. Justices of county court, for use of county, suit in name of justices, 49, ">. Justice of tlie peace, liable for illegal exercise of ministerial powers, it), 1". no action lies in favor of to recover money paiel as penalty for marrying persons under age, 49, '. Iia1)ility for official acts, 49, ^, et seq. Kin next of. See Distributee. when parties to pr(;bate proceeding, 1, '■^'^. when may sue representatives of co-administrator for dis- tributive share, 77. after ])avment of debts administrator trustee for alone, 77. 78,'». in bill by, against administrator for settlement of the estate, necessary parties, 22, ■^^, 22, ^^, et seq. Lands, actie)n to condemn, death of defendant in, revived in name of heir, 105, ^^. injunction to prevent taking for public use, necessary parties, 28, '^^, et seq. suit by administrator of vendor to enforce contract for sale of, necessary parties, 20, i", et seq. necessary party to suit to enforce specific performance of contract to convey, 26. *', et seq. verbal assignment of contract to convey, may be enforced, 36, 1", et seq. INDEX. 437 Lands — Continued, suit by assignee to enforce contract for sale of, necessary parties to. ^ 26, ". verbal contract for conveyance of interest, when such grantee necessary party to creditor's bill against grantor to reach lands, 24, ^^. suit to enforce contract to convey, deed conveying to vendor of. destroyed before being recorded, cfibct as to parties 26, i^. to suit to enforce contract to convcv, when agent need not be party, 26, ^\ to suit to'enforce contract to convey, when cestui que trust should be party, 26, i«. to enforce contract to convey, when trustee should be party, 26, ^^, et seq. contract, executed by decedent, who necessary parties in suit to enforce, 22, '', et seq. sold by executor under mistake of power, effect, 73. agreement to convey to wife, a,ction to enforce bi-ought by wife, 66, a^ of wife, specific performance will not be decreed against her, upjn contract of self and husband, 69, ^^. suit to set aside conveyance of, necessary parties to, 23. -*. suit to set aside mortgages, deeds of trust, etc., uccLssary parties, 26, ^'^. contract for purchase of, by infant, suit to rescind by guardian, infant necessary party, 21, ^^. suit by husband and wife to recover, when disaffirmance of sale, 66, ii. when joinder of plaintiffs to restrain execution sale of, improper, 96, ^*. sheriffs sale of, how judgment debtor made party to suit to set aside, 5, i5. patent for, issued by United States, suit to set aside, attor- ney-general must institute, 48, ^. suit to correct error in conveyance, necessary parties, 26, '*'. county recorder, not necessary party to suit to correct error in conveyance, 26, '^K deed to two, when grantor not necessary party to suit to correct error in, 26, '^'-. covenants relating to, right of assignee to sue upon, 36, -^. of debtor, suit by trustee for benctit of creditors to subject to payment of "debts, necessary parties, 26. ^^, et seq. of debtor, bill to subject to payment of debt of foreign judgment creditor, requisites, 29, ". of surety, bill to subject to payment of debts of principal, necessary parties, 26, ■">. when surety may subject to payment of debt, 8G, '. 438 rs-DEX. Lands — Continued. right of action for l.ireach of ijarol contract for sale of, vrlio may sue, § 107, ^ eviction of co-parceners from, ■when sue jointly, D4, ^^. taken for jiublic nse, administrator may sue for damages, 73. of decedent, dutv of administrator with referenco to, 78, 32. of decedent, Avhen heirs are not necessary parties to suits relating to, 22, ^o. of decedent, final settlement, proceedings to set aside and subject to payment of debts, necessary parties, 2G, °^. dower, interests in, suit by widow to' rccoyer, necessary parlies, 26, '^^, et seq. heir liable only to extent of, descended to them, parties, 22, "^^, et seq. administrator may maintain ejectment for, when, 73. of decedent, Avhcn administra'tor may maintain ejectment for heirs, 73, '^'^. executor may maintain ejectment for, when, 73. heir may bring ejectment for, when, 73, 78, "^, ct seq. devised," patent issues after death of testator, necessary parties to suit to recover, 22, o^. ejectment, occupant should be party, 26, ^5. persons claiming distinct parcels of, when properly joined as defendants in ejectment, 98, ^^. purchasers of separate parcels of, cannot join in suit to enjoin former owner from prosecuting separate suits of ejectment, 96, ". action of ejectment, or for mesne profits, when does not abate, 107, ■*', et seq. amount of recovery in ejectment, 9, '^^, ctseq. of infant, guardian of may not sue for in own name, 57, '. of infant, guardian in socage of infant has control of, may sue to recover, 57, **. dedicated to public, when corporate authorities of may maintain ejectment for, 43, ^^ of wife, when husband may maintain ejectment for alone, 6G, ^". of wife, ejectment for, husband should be joined as com- plainant, 66, 1*, et seq. of wife, ejectment, suit against, who sued, 69, ^", et seq. claimed bv wife as separate property, ejectment for, she sued alone, 69, '■^'K separate property of wife, may maintain ejectment even against husband, 66, ^^, et seq. suit by purchaser of husband's interest in, to dis latter, necessary parties, 26, 5^. flowage of, who may unite in action for damage, 95, INDEX. 439 Lands — Contimien. tiowage of, who joined as plaintiffs in suit to restrain nuisancj caused by, ^ 95, *'. flowacr • of, when joint action will not lie for acts causing, 98, ^\ contract, foreclosure of, requisites for injunction, 9, *". Guit relating to homestead, who necessary parties, CC, "'■'. person in possession of, may sue for injuiy to, though he has no titb, 79, '. who may intervene in suit for, 110. **. no action ior lawful act upon, bv owner although malicious, GO, i. liens upon, suit to enforce, who made xmrties to, 27. ^. revival of dormant judgment, tffc;ct of lien upon, 105, ^'-. mechan'.c's lijn, action to enforce, parties to, 27, ^^, ct seq, niortg:v;20 of, avIicu not proper party to suit, 2-i, *^ owner of, rights of in watr course upnn, 33, ^^, ct fieq. infant brings suit of partition by, 57, ^^. sought to be partition '-d, claimants of dower interests should be joarties, 28, ^'=, et seq. mere occmints of, not necessaiy parties to suit for i>arti- tion, 28,'", ft seq. statutorv suit for partition, nlaintiff need not have posses- sion, 0, ^^. partiaou of, title disputed, j)laintifif must establish at law, 9, ■^'^. pai-ci:ion suit, woman defendant marries pending, husband not made party, effect, 7, ^*. sold by subbtitiited agent under power of attorney, who sue for price, Si, -^. purchas3 price of, administrator may maintain action to enforce lien for, 73. suit t:) enforce lien for purchase price of, necessarv parties, 27, 2, ct seq. of d:c:dent, when heirs necessary parties to suit to recover purchase price of, 22. ". of dcc:dent, when heirs are proper parties to suit of ad- ministrator de ho)ih noil to subject to payment of the purchase price, 2G. ^^. when purchase money considered as. in equity. 7S. -'. note given for purchase price of, when assignee may fore- close title bond, 35, ^■'. proceeds of sab of. injunction to restrain payment to railroad company, Ir.ttcr must be party, 28, "^. nota of infant for" price of, disaffirmance of releases, sure- tie^. .:9, 3. bond for price of, payment by surety, necessary parties to bill of, to subject to payment of, 26, =>-, 440 INDEX. Lands — Continued. of wife, action to recover purchase price brought hj hus- band and, g GG, ^^, et seq. fund arising from sale of, when wife necessary party to suit to recover, 21, ^. pui-chase of, by general government, liabilities, etc.. 40, ^. purchase of, Avhen cestui may enforce trust for, 33, '^-K deed given as security, when purcliasers properly made defendants in suit to' recover, 99, "*. suit by purchaser at execution sale to dis]-)ossess husband of land of wife latter must be loarty, 20, ■^^. when pendente lite pui'chaser mav defend action to recover, 0, '-'. necessary parties to suit to quiet title to. 2G, ^^ et seg. when husband and wife may unite in bill to quiet title to her, GG, ^i. stranger, when cannot be maae party to suit to quiet title, 5, ^'. suits, quiet title, plaintiff must recover upon allegations of complaint, if at all, 9, '■^^. bill to quiet title, when equity will not entertain, GG, -'-. rent of, when administrator may sue for, 73, of wife, action for rents, etc., 'of, when brought bv hus- band, GG, aa. receiver of rents and profits of, powers of, 52, ^". of infant, proceedinfrs in probate court to sell, when decree will not bind, GO, ». of insane person, when committee cannot sue for, 61, ^^ of insane person, petition of guardian to sell, jurisdiction of court over, 13, *>. of wife, statutorv proceeding for sale of. she should be de- defcndant. G9,' ^i. school, see School Lands. suits in equity relating to, necessaiy parties to, 2G, ^ suits relating to persons made defendants by general aver- ment, 9, 2T. infants, properly made defendants in suits relating to, C, ^ insane person proper party in suits relating to, 21, ^. et seq. naked, trustee cannot sue 'alone in suit relating to, 32, ^. of wife, suits relating to, husband not bound to unite in, GG, 1", et seq. of intestate, who may maintain suit to set aside tax sale of, 78, 2». contract for sale of, when obligors in may unite in suit to set aside tax deed, 96, ^^. sold for taxes, when countv not liable for redemption monev, 42. ^. INDEX. 441 Lands — Continued. sale for delinquent taxes, what is that will support action for fees, § 50, ^. suit prosecuted by life tenant abated by his death, 107, 3». after tenants in common, incorporate for sale of, who may sue for trespasses upon, 93, ♦*. administration may sue for trespass upon, when, 73. administrator may maintain action for trespass against heir, when, 73.' trespass upon, when coi-poration may suo for, 90, ^^ of wife, trespasses upon, husband and wife may jointly si:e for, 66, '^^, et seq. in name of trustee action for trespass in his name, 32, ^^. suit upon bond for title for conveyance of, when assignor necessary party, 2G, ■*, et seq. when defendants property joined in suit to set aside cei'ti- ficates of title to, 99, **.* of decedent, action against administrator to try title, heirs necessary parties, 22, i^. State, when tri:stee of hospital for insane may be sued to determine title to, held by them, 33, *. implitd trust, who made defendants in suit to cstabHsh, 99, ^ implied trust in, suit to establish necessary parties, 23. ^^ when guardian will not bo held as trustee of, purchased with funds of infant, 57, ^". held by deceased partner in trust for firm, suit for convey- ance, parties, 26, -, et seq. suit to divest title of minor cestui que tt-ust trustee neces- sary party to, 23, ■*■*. of wife, obsti'uction of way to, cither husband and wife, or husband may sue, G6, ^^. separate property of wife, when husband and wife may jointly sue for injury to possession, GG, '^^ et seq. of wife when husband 'should sue alone for injury to pos- session of, 6G, ■'^^. of wife, when wife may sue alone for injury to possession of, 66, ^". of wife, injury to the reversion she must sue alone, GG, ^. of wife, action in joint names of husband and wife, for injuries to, on death of either partv survives to other, 66, ai, et seq. of infa :t. writ of entry for, brought in name of infant by next friend (\Mass.), 57, ^. of wife, when she may prosecute writ of entry alone, 66, ^^. Landlord, when proper party defendant in ejectment, SO, '^. when mav maintain action for injurv to leased premises, 79, «. ' 442 IXDEX. Landlord — Continued. wlieu may file interpleader against attaching creditors of tenant, ^ 79, '. when liable to stranger for non-r.pair of leased premises, 80, ', «. when liable to tenant for non-repair of leased premises, 80, ^ 3. when must join tenant as cc-pLiintiff in action to suppi'ess nuisance, 79, ^'■^. • may collect rent althouc;'-! tenant refused to enter upon leased premises, 79, ^'^, entitled t > possession of property given as security for pay- ment of rent, 79, ^". on death of, who entitled to r^nt, 79, ^'•'. when may intervene, liO, ^'•'. when joint action vaaj bo maintained for restitution of 1 ased premises, 79, ^^. trespass upon crop when tenant mav maintain action, 79, 3-5. law, who should be made party to an action at, 18, i. in action at, same person cannot be both plaintin and de- fendant, G, 1", et seq. beneficial plaintiff need not be named in record, 2, '■^. claim arising from transgression of cannot be enforced, 9, ^^. testamentary tnist inconsistent with, heir may contest execution of, 78, ''. when verdict for defendant contrary to, 89, ^^. Ler-se, assignee of, light to sne f(n- rent, 3G, '■^^, et seq. suflticiency of a,spignment, 3G, --. dissolution of in suit for, assignee of insolvent lessee should bo made defendant, 55, ^-. made by executor, he may recover on, 73. for term of years for gros's amount, several actions cannot bo maintained upon for rent, 79, ^^. upon breach of terms of, when joint action may be main- tained for restitution of premises. 79, ^ K Leased premises, when landlord may maintain action for injury to, 7J, «, y. " . eleath of plaintiff in action to recover possession of, effect, 79, ^». when landlord liable for non-repair, 80, ', '^. when landlord liable to tenant fcr non-repair, CO, -, et ccq. when tenant liable for non-repair or negligent use of, 80, *. solel upon execution, who may sue for rent, £0, '■^". L8;j£Cy, assignee of, suit by to recover, recessarv parties, 22, J^J. " bill t'j recover, necessary parties, 22, ^i, et i^eq, when interpleaeler proper to settle claims to, 113, ^'J. rs-DES. 443 Legacy — Continued. V, liLU action iipon bond of execiitcr, lo recover, properly Lvouf^ht in name of probate jvidge, § 43, ^. due ininor, suit to recover sljould bo brox;ght ia l:i3 name, 53, «. lapse of, TThcn question presentee! as to the, necessary parties, 22, "-*, ct Sfq. Triicn suit fur must bo broiiglit in equity, 77. cannot be recovered until after demand, 77. cannot ha recovered witliout setting up, representative, 77. "vvhen legatees may join ia action to enforce payment against devisee, 78, ^'^. of personal property, legatee cannot maintain bill to recover before probate of ■will, 73, ^^ nor before it is payable, 78, ^'K •when legatee may maintain suit for preservation of, 73, ^'-. vflien the right to cannot be determined by a bill of inter- pleader tiled by a legatee, 77, 2'. Legatees, generally actions by or against, 78. Avhen not necessary parties to bill for an account of per- sonal assets of deceased, 22, ^^. bill for account, against executor, when error to direct payment of legacy, 77. paying debt of estate, cannot recover the amount from the executor, 75. debtor, when necessary party, 22, ^3, when necessary party to suit' to reach property of judgment debtor in hands of heir. 24, '^\ when cannot maintain bill of interpleader, 77. when may join in action to enforce payment of legacies against devisee, 78. ^^. may not maintain action for legacy before payable, 78, ". in proper case may maintain suit for preservation of, 73, ^-. when must be made parties plaintiff in suit by executor to recover legacy charged upon laud, 78, ^K whm each mav sue sei^arately for his share collected bv agent, 78, ^3." residuary, necessary parties to bill for account of personal assets of decedent. 22, ^''. necessai-y party to suit to subject assets devised, to pay- ment of debts of decedent, 22, -•*, et seq. residuary, necessary party when question of lapse of legacy arises, 22, ^^. residuary, bill to recover legacy, necessary parties, 22. ■*' . when no't necessary party to suit to recover trust funds of the executor, 22. -^ are necessary parties to bill to set aside will. 22, '^. when wife may not intervene in suit by, 110, ^*^. 444 INDEX. Leg£,l delays, -when defendant not entitled to, for answering, § 71, 'Jy. Legal effect of contract made by agent, S5, ^'^, ^'. Legal proceedings, who are bound by, 7. i. extent of meaning of term, parties, 7, ^. who included in term, privies, 7, ^. Lessee. See TENA^'T. when may file bill of interpleader, 114, i^. Lsssor. See "Landlokd. Letters, testamentary, when failure to take out, by executcr in foreign state, effect, 76. Levy, taking property from officer after, right of action in time, 36, •*«. of attachment, failure of sheriff to, liability, 51, ^c, (^t seq. Liability, of city for leaving open excavation 'in public com- mon, 44, '. of city to be sued for neglect to perform public duty, 44, 1. of city with respect to sewers, 44, ^, et seq. of city to repair streets, change grade of, etc., 44, », et seq. of city for negligent use of public water works, 44, ^■^. of common carrier for carriage of goods, extent of time of, 87, 8, et seq. of receiver as common carrier, 52, 2t. of ioint defendants in action on contract must be proved, 97, 1, et seq. of corporation for acts of agents, servants, etc., 91, 22, of debtor after notice of the assignment of non-negotiable chose, 34, ^, et seq. of infant for tort same as adult, 59, ^ d seq. of insane jierson upon contracts, 62, **. of insane person for torts, 62, ^*. joint and several, judgment entered against persons over whom jurisdiction acquired, 97, ^". of judge of court of general jurisdiction for judicial acts, none, 49, ^. of justice of the peace for official acts, 49, ^, et seq. for continuance of nuisance, 30, ^*. of partner, notice must be given in order to limit, 89, ^^. of public officer to suit of private person. 47, ■*. of receiver, for goods entrusted to care of, 52, '^, et seq. for defective condition of school-house, none independent of statute, 46, 25, et seq. of sheriff for failure to levy attachment, 51, ^^, et seq. personal, of trustee for loss, etc., to trust property, 33, **. of trustees, joint for trust funds, 33, ^^, of trustees under will upon building contract, personal. INDEX. 445 Lien. Sej Vendor's Lien. equitable, suit to enforce, how jurisdiction obtained over defendant, non-n sident, ^ 11, ^. foreign judgment creditor 'must ha-ve, to sue to subject debtor's land to payment of debt, 29, ''. of judgment revived, effect on land transferred while dormant, 105, '■^. when judgment creditors may unite in suit to enforce, 06, *•. of judgment creditors, all entitled to be parties to suit to subject property, 5, ■*. upon land, suit to enforce, who may be made parties, 27, ^. for purchase price of land, suit to enforce, necessary par- ties, 27, 2, et Sf^q. " < laborers up n\ ligs, suit to enforce, when owner of need not be party. 27, ^^. of material men, when may be enforced in joint suit, 96, i". mechanic's. See Mechanic's Lien. mechanic's, death of defendant in proceeding to foreclose, abates, 107, '«. contract of husband and wife to execute mortgage, when treated as, equitable, 69, *^. transfer of note secured by mortgage, assignee may sue upon and enforce, 35, ■^", it seq. for assessment on lut for improvement of street in San Francisco, who may enforce, 34, '**. for rent, when assignee of note given for, may recover from purchaser of tenant's crop, 79, ^''. vendor's, administrator may enforce, 73. when one trustee may sue alone 'to enforce, making co- trustees defendants, 32, ^^, et seq. Lienholder, elder not effected by suit of younger unless made party thereto, 7, i^. when elder may be made party to suit of junior. 5, ^. younger properly party to suit by the elder, 7, ^^. prior, need not be party to suit to enforce mechanic's lien, 27, i^ necessary parties to suit to set aside mortgage deed ol trust, etc., 26, '^'\ et seq. proper parties to suit to foreclose mortgage, 27, ■"5, et seq. Life of a corporation, effect on suits commenced during period. 90, •^•^. Limitations, statut3 of, general appearance, when does nol waive, 16. '. when assignee of bankrupt may not avail himself of, 53, ^*. when intervenors may not assert, 111, ^. when claim barred, cannot be recovered against surety oi administrator, 86, -•'. effect of new promise on parties to note, 35, ^-. Part IKS— 3S ^6 INDEX. limitations, Statute oi— Continued. party not deprived of rights under, by supplemental plead- ings, § 8, ^". rights may be waived, 8, ^9. how operates upon a statutory right of action, 8, ^i, el seq. special statute in relation to abatement, is in nature of special, 105, ^^, et seq. stipulation making person party, effect, 7, ^^. no one to assert it, effect on time, 8, 22. ■\vhen trustee may not avail himself of bar of, 33, ^3, et seq. Liquors, sale of, seller and owner of premises liable jointly, 98, ^, et seq. Loan, payment of price of goods to agent before due, may be treated as, 85, ^'^. Logs, lien of laborers, suit to enforce, when owner need not be party, 27, is. Loss, when insurance company may sue wrong-doer for amount of, 90, 19. Lost note, assignee of may sue in own name, 35, ''^*, et seq. Lost property, when is lost, 87, ^^, et seq, wlio entitled to custody of, 87, ^^, et seq. Louisiana, absentee, who is, 29, ^i. joint obligor may be sued separately, 97, ^. Machinery, unsafe, lialulity of master to servant for, 5, *. Makers, of note, what defenses he may interpose, 84, i", et seq. and indorser may be joined as defendants in action upon note, 97, 2^, et seq. of note, judgment may betaken against, and action dis- missed as to indorser, 97, ^a, et seq. co-makers of note given for price of land, when may sue for recision of contract, 96, ^K Mail, service of defendant by, insufficient, 13, 2, pt seq. Majority, infant attains, pending suit should be made sole party, 57, *. after, infant may sue to set aside contract of sale of interest in realty, 57, ^*. Mala fides, only defense to action by holder upon note, 35, ^'\ Malicious, act done upon land by owner, no action lies in favor of adjoining owner, 80, '. burning of building, amount of recovery, what does not affect, 38. ^*. public officer not liable for judicial acts even though, 49, ". prosecution, right of action for, not assignable, 38, ^\ prosecution, corporation liable for, 91, 2«. prosecution of wife, who may sue for, 65, '^'^, et seq. Mandamus, only remedy for enforcement of claim against county allowed for full amount, 42, ^K INDEX. 4i7 Mandanms — Continued. by county against it officers, party, ^ 5, ". right of intervention in, 109, i^. when will not lie against officers of town to compel to rebuild bridge, 46, ^i. death of petitioner, after appeal causes abatement, lOS, ". to enforce common law or act of legislature, who may be relator, 30, i. stockholder may enforce right to inspect books of corpora- tion by, D3, \ stockholder may enforce publication of "statement and report" of corporatier. Marital, portion, suit to recover, heirs must bo made parties, 22. '^'K Marriage, agreement, bill to impeach bv husband, wife made defendant, 6i, ». action for breach of promise, when abates on death of defendant, 107, ^a. breach of promise of, infancy, when good defense. 59, ^. must have been to support action crim. con,, 15, ^^, et seq. deceit in inducing plaintiff to contract, when action abated, 107, at^. of widow, pending suit for dower, husband made partv, 6G. i^. of feme sole plaintiff, effect, 107, ^^ of female plaintiff pending suit, husband properly made party, 64, *. of female party, mere suggestion sufficient to authorize joinder of husband, 63, i^. of persons under age, penalty, money paid as, justice of peace cannot recover amount of, 40," '." of woman, defendant in action for partition, husband not made party, effect, 7. ^*. of female plaintiff in action for slander, husband should bo made party, 65, ^^. tort of wife before, must be valid to make both husband and wife liable, 70, ^, et seg. for trespasses upon lands of wife before, joint action by hnsl)and and wife, GG, -^. Married woman. See Wife. cannot sue or be stied, general rule, G3, "^'. executrix, husband is properly joined with in suit to re- cover assets of estate. 22, *>. when is necessary party to a suit. 21, ^*, et seq. Master, rule as to liability to servant for injuries received iu course of employment, 85, •*, et seq. may sue one who entices away servant, 83, *. US IXDEX. Master — Continued. when liable for incompetence, servant furnished by, ^ 83. '-, Avlien may sue servant for loss from negligent acts, 83, ^^. juintlv liable with contractor for negligent acts of em- ployees, 83, '-^u. not liable to servant for negligence of co-servant. 83, 26. when liable to servant for personal negligence, 83, ^a. liability for services to servant, 83, '■^'', ft seq. when may sue for loss of service, 83, i^. when liable for tortious acts of servant, 83, ^^ when not liable for tortious acts of servant, 83, ^'. after work accepted from contractor, liable for defects, etc., 83, ^1. Master and servant, generally, suits by and against, 83. when both liable for acts of servant, 83, ^'^. when not liaV)le jointly for acts of servant, 83, -^. no joint action against, for negligent acts of servant in absence of master, 85, '', action for seduction of child founded upon theory of, 83, i". relation of, must exist to maintain action for seduction of child, 83, 6. Mateship, vessels, no joint actiou by, for conversion of whale taken by one, 95, *. Materials, furnished city, what no defense in action against for price, 44, 22. furnished to build church, corporation liable for, 91, '-'u. furnished vessel, part owners liable for, 81, 2^, 23_ men. Avhen lien of may be enforced in joint action, 96, ^°. Mechanic's lien, may be assigned, assignee mav sue in own name, 34. 2u. death of defendant in proceeding to foreclose, abates, 107, ^y. mere agent need not be party to suit to enforce, 27, ^^. action to enforce, contractor or sub-contractor proper partv, 27, 15, ei seq. prior lienholder need not be party to suit to enforce, 27, '". foreclosure of, owner of premises only defendant, 27, ^'^. Avhen owner of premises not necessary party to action to • enforce, 27, ^*. Member, of common body, when receiver may sue former to recover debt due latter, 52. ^^. of corporation, citizenship of, 10, •*. of unincorjiorated association, wlien may sue others for contrilnition, 92, *. of unincorpoi-ated association, when latter mav sue in trover, 92, &. cf unincorporated association, very numerous, how may sue, 92, 1, et seq. of unincornorated association, liabilitv of, 92, '. DvDEX. 419 Mesne profits, when tenant may sne co-tenant for, ? 82, ^8. Mining claim, -who may intervene in suit for, 110, -". Minor. See Infant. who may sue for services of, 83, ^ Misdemeanor, when injury results from act made, generally subject of action, 38,' ^i. Misdescription, in deed running through several conveyances, suit to correct, necessary parties. 26, i^, ft >ieq. of premises equitable deftn»e, ejectment, necessary parties, 26. 3^. Misjoinder, of parties, generally, 100. of parties, who may object, 101, ^, et seq. of formal parties to bill in equity, effect. 103, i. parties asserting separate and distinct interests demurrer will lie, 100, ^ plain tilfs, eHfect of, in action of assumpsit, 102, ^ of plaintitis in equity, effect, 102. **, et f^eq. of plaintitEj in action for tort, eftcct, 102, *, et seq. of parti^-s plaintiff, objection, when made bv demurrer, 100, K et seq. of plaintiffs met by demurrer or answer, 102, -. of plaintiff, objection cannot be raised by instruction, 100, ". of parties plaintiff", may be reached bv motion to elect, 100, *. plaintiff, motion to strike out name of one. proper, 102, ^*. plaintiffs, no community of interest between, fatal, 102. ^ \ of plaintiffs, objection' should be made before hearing, 102, 11. plaintiffs, objection raised, bill not dismissed unless, 102, i-*. of plaintiffs, when objection waived. 100. =, et seq. of defendants in action upon contract, eft'ect, 103. ^ et seq. of defendants in action for tort, immaterial. 103. i^, et seq. of defendants, objection for, how raised. 100, i'-*, et seq. Misnomer, suit against corporation, effect. 91, ^. alleged, true name must be proved. 3. i-. waived by pleading, general issue, 3, i^. Mistake, salt to reform contract on gi'ound of, 26, i^, et seq.. to entitle party to relief must be mutual, 9, ^", et seq. Money, when administrator not liable to stranger for, 75. overpaid to agent, when fact of payment to principal no defense, 85, i*. when full defense, 85. i^. fraudulently paid by bankrupt, assignee of, may sue to recover. 53, •». paid on illegal assessment, citv, mav be recovered back, 44, -'^ et seq. overpaid to judgment creditor, sheriff" may recover back, 51, ". #50 INDEX. Money — Continued. had and received, trustee, when liable to action for, i 33, '••'. settlement of guardian ^Tith infant ward, 57, i^, et seq. received by guardian of lunatic, when no action against latter. 62, ^i. infant liable after majority for, tortiously taken during infancy, 59, ^^ et seq. paid for redemption of lands, when county not liable for, 42, «. X)aid to holder of note given to compound wine cannot be recovered back, 35, ^. paid on note, fraud on composition creditors, when may not be recovered back, 34, ^''. purchase, paid for land, when considered in equitv as land, 78, ^^ paid county officer for services, recovered back when, 41, ^. in hands of public officer, when no demand necessary to recover, 47, ^^ paid to public officer for services, when may be recovered back, 47, i". public officer receives in official capacity must pay over to successor, 47, ^, et seq. officer of town refuses to pay over to successor, town may sue for, 45, ^. failure to pay over borrowed, when breach of bond of re- ceiver, 52, ^". failure of sheriff to pay over, collected on execution, no action until demand, 51, ^'^. received in excess of tax, penalty and cost received by tax collector, treasurer may sue for, 50, ^. paid under illegal tax, when city may not recover back from town, 46, *>. ilL gal tax, collected for school purposes, recovered back from whom, 46, '^'^, et seq. co-tieasurer receives and fails to pay over, countj'- may sue on bond of, 50, *". received by town uxx)n unauthorized issuance of bonds may be recovered back, 46, *. town njust be party defendant to bill to restrain its treas- urer from paying out, 46, ^. received by X. to use of A., A. may sue for, 37, «. delivered to one for use of another, latter may sue for, 87, ^9. borrowed during coverture by husband, wife may sue for after divorce, 67, ^^ of wife, liuslwnd fraudulently loans, she may recover, 65, *o. furnished wife deserted by husband when recovered from latter, equity, 68, 2o. IXDEX. 451 Mortgage, and bond, foreign administi*ator, may not transfer, so as to enable assignee to sue, 35, ^ ^^ assignment of, does it carry debt, 3G, -'■. contract of husband and wife to execute, will be enforced, 09, i». to seT»eral to secure several debts, how enforced. 82. ^'. deed to land when sought to be declared, purchasers pro]> erly made defendants, 99, *. wife executes with husband sufficient reason for making defend mt in action upon, 69, •^•', et seq. suit against estate upon, 75. administrator may bring suit to foreclose, 73. foreclosure of. adverse claimant not proper party to, 27, ^o. foreclosure, Avhen creditors will not be allowed to become defendants in, 101, ^'^. foreclosure of, when wife made defendant, 69, ^■*, ei seq. homestead right, suit to foreclose, wife should be party, 27, ••;«. by husband and wife, latter necessary party to suit to fore- close, 27, 2<. foreclosure of, proper joinder of parties to suit, 27, -\ suit to foreclose, lieuholders properly made parties to. 27. •*6. foreclosure of, mortgagor as rule necessary party, 27, -3. rrrpresentative of deceased mortgagor, when made party to suit to foreclose, 27, •^^, et seq. suit to foreclose, when heir of mortgagor made party, 27, ^■^. mortgagee necessary party to suit to foreclose, 27, ^a. mortgagee, not necessary 'party to suit to foreclose, when has disposed of interest, 27, ^o. administrator of mortgagee, party to foreclosure, 27, •*'. foreclosure of. heir of mortgagee not necessary party com- plainant, 27, **. foreclosure of, necessary parties to, 27, ^^. note part of makers only, execute, relief bv foreclosure, 99, '. note and. suit to foreclose, same person may be party plaintiff and defendant. 6, ^c. note by Y., mortgage by X., no personal judgment asked, Y. not necessary party to foreclosure suit, 27. --. holders of several notes secured by, may join in suit to foreclose, or sue separately, 96, ', et seq.\ S-6. -". note secured by, holder of note may foreclose lien, 35, ^". cquitv, equitable owner of notes secured by, proper person to foreclose, 36, 26. foreclosure of, owner of equitv of redemption should be party. 57. ^i. by several to part of the number, latter may foi-eclose, 36, -''. 452 rs'DEX. Mortgage — Continued. taken to secure firm debt, generally ail partners unite in suit to foreclose, § 27, ^■•^, et seq. to secure purchase price, wife of mortgagor not necessary party to suit to foreclose, 27, '^'^. foreclosure of. pendente lite purchasers need not be narties to suit, 27, ^-. trust, Kuit by trustee to foreclose, cestui need not be party, 32, 1^ foreclosure of by cestui, trustee should be party, 27, ^*. when lioth trustee and cestui, must be parties to suit to foreclose, 27, ^^, et seq. foreclosure suit, when error to decide iipon validity of, 8. 24. of personal property, rights of action of mortgagee under, 36, ^", et seq. when mortgagor cannot proceed against receiver to cancel, 52, ai. note of X., indorsed and secured by mortgage of Y., both joined properly, 27, ^^. generally not sufficient evidence of ouster, 82, ^", ^n. -i. promise to third person, latter cannot sue on, 86. ^i. penalty for failure to discharge, of record, executor not liable for, 75. last assignee of, when only necessary defendant in bill to redeem. 28, *. suit to set aside, necessary parties to. 26, ^-, et seq. stranger paying, without taking assignment, when may not be substituted in place of mortgagee. 34, ^^. Mortgaged premises, when executor of deceased mortgagor necessary party to suit to recover, 22, i". when purchaser of, need not be party to foreclosure suit, 7. ^-•. 27. -^'K Mortgagee, of land, when not proper party to suit, 24, ^''. of personal property may sue for damage to his interest, 36, '^^. of chattels, when may maintain detinue against mortgagor, 36, a-', are part of mortgagors, may foreclose mortgage. 36, '^. when should be party to suit of foreclosure, 27. '^, et seq. of personal property, when may maintain replevin, 3G, ^'. should be parties to bill to redeem, 28, ^i. stranger paving mortgage, when may not be substituted in place of, 34, i«. Mortgagor, when should be party to foreclosure suit, 7, ^i. usnully necessary party to foreclosure suit, 27, '^^. representative of deceased, w^hen made party to foreclosure suit, 27, 38, et seq. when not necessary party to foreclosure suit, 27, ^K rsDEX. 453 Mortgagor — Continued. Mite of, when not necessaiy party to suit of foreclosure, I 27, -^. aud mortgagee necessary parties to foreclosure. 27, ^*. pare of, are mortgagees,' mortgage maybe foreckwed. 3G, -^. when need not be made party to bill to redeem, 2)5, *• of personal property, when mortgagee mav maintain detinue against, 36, a-. ' of insured property, when not necessary party to suit on p )liey of insurance for loss, 2i, ^**. Motion, auy, made in a cause other than to jurisdiction of court' amounts to an appearance, 14, 2, et spq. special appearance should be limited to the sp-cific purpose to be reached, 14, ^^. who may not make, in an action except, 8, -. to elect,' misjoinder of parties plaintitf mr.v be reached bv, 100, \ on exprn-te, court may appoint guardian for insane defend- ant, 62, *. to correct a judgment, who may be heard on, 7. ^-. to make parties, no error from omission unless made, 103, ^'^. to strike out name of party, when proper, 102, ^^. et seq. ex parte, substitution of' administrator as pai'ty by, on death of plaintitf, 106, -. for substitution of party, requisites, 103, ^ etseg. Municipal election, injunction to prevent payment of expenses of, nccssary parties. 2s, 33. Name, full christian, should be inserted in pleading. 3, ', law knows but one christian, insertion of middle, imma- terial, 3; 6. surname only set forth demurrer will not reach point, 3, ^'^. person described C. G., to wit, C. P., amcndmeut striking out latter, 3, ^*. letters Jr. no part of. 3. 5. Mav and Marv not identical. 3. ^. suit of N. C. 'instead of J. N. C. not void, 3. i». misnomer alleged, proof must be made of true. 3, ^-. of party in every civil action must be set out in record, 3. '. party must be described by, aud not by description of the person, 4, ^. of plaintiff in caption of bill is not enough, 1, 6. spelled wrong will not abate writ. 3. ^1. rights of a party must be vindicated in his own, 3. -. agent suing as,' in his own, should disclose that of his principal, 84, ^. when foreign ambassador may sue in his own, in our courts, 29. ^. assignee of bankrupt may sue in own, 53, ^ 454 INDEX. "S Sime— Conthmed. oflQcial, chancellor sues in, upon bond given him in liis ofticial capacity, § 49, ^. ■when coauty may ssue upon an official bond in its own, 41, 6. bond, to justices of county court for use of county, suit in, 49, 5. in whose, suit brought upon official bond, 36, *, et seq. of State, suit upon official bond, 39, i", et seq. bond to State to use of town, latter may not sue in own, 45, 8. of parties to suit upon bond of county treasurer, 50, '. action upon bond, given town, subsequently divided belongs to new town, 45, ^. of incorporation, city sues in, 3, ^^ 43, '. city sues in own, upon contract to A. B. as treasurer, 43, ^. assignee ot chose in action may sue in, of assignor, 8, ^. chose in action attached, sherift may not sue upon in own, 51, K action upon contract brought in whose, 31, ^, et seq. when agent may bind principal by written instrument made in own, 85, ^^. when agent contracts in own, for undisclosed principal, binds both, 85, ii. person beneficially interested may sue in equity upon con- tract, 31, ». corporation only known by corporate, 91, '^. ol corporation, when it could exist under either of two statutes, presumption as to, SO, ^. corporation, equity will enjoin wrongful appropriation of, corporation must sue and be sued in, SO, -^ corporation changing, may sue in new, proper averments being made, 90, '. suit against corporation, effect of misnomer, 91, ', et seq. of corporatian, changed pending action, 3, ^", 91, ^. in which countv sued, statute relative to must be strictly followed, 42, \ in Georgia county can only sue in its, 41, ^. in Georgia county sued in, 42, ^. death of party after judgment, who appeal. 108, '. death of joint defendant or plaintiff within a year after judgment, execution, how issued, 105, '. of defendant misnomer, when objection made, 16, ^". of infant wife, when next friend mav not sue in, 56, ^*. defense of action of ejectment, in wliose, conducted, 80, ", idiots, lunatics, infants sue and sued in own, 3, *. lights of infants should be enforced in, 56, ^ et seq. TSVTX. 455 Name — Continued. Avheii order appointing guardian ad Idem for infant defend- ants without naming void, ^ 58, ^^. guardian of infant may not sue for lands of, in own, 57, '. guardian in socage of infant's lands, may sue in own. 57, ". unlawful detainer should be brought in infants, 57, ^". insane person may sue in own. CI, 2. when action brought in, of lunatic, of guardian, Gl, ^. of lunatic in suit, joinder of with guardian, mere formal- ity, 61, •>, et seg. of guardian, omitted in suit by insane person, matter of abatement, Gl, i". person found insane by expaHe proceeding, wlien may sue in own, Gl, ^. upon what items insolvent may not sue in own, after dis- charge, 55, ^^. of party, interest in action transferred, pending suit con- tinued in, 9, ^. plaintiff transfers interest pending suit continued in whose, 34, 8, et seq. one joint plaintiff transfers interest to co-plaintiff latter continues suit in his, 107, **. interest transferred after judgment, appeal taken by assignee, lOS, 1*. when person bound by judgment, although not party to action by, 7, i", et seq. suit upon a judj::ment, who may maintain, 36, ■*', et seq. judgment creditor may file bill in own, equity to reach debtor's property, 36," ^*. agent to sell land, substitutes another under power, cannot sue for price, 84, ^i. mandamus to enforce private right, in whose name main- tained, 30, =^. assignee of mechanic's lien may sue in own, 34, -". liolcler of legal title to note,' action upon should be in, 35, '. when bankrupt may sue in, upon note transferred to by assignee, 53, '^ agent may sue collector for proceeds of notes placed in his hand>!, in his own, 84, i-*. use of in notes, bills, etc., exception to rule, 3, **. note given to guardian of infant, when former may sue in own, 57, 6. of party, motion to strike out, when proper, 102. ^s, ct seq. of plaintiff, addition to, what stirplusage, 4, ^, tt seq. plaintiff declared to be insolvent debtor, suit may still pro- ceed in, 55, 3. partnership suit by, in whose, brought, 88, ^ et seq. 456 INDEX. Name — Continued. when receiver of partnership iDropertv must sue in firm, ? 88, 11. suit against partnership, may bo in what, 89. ^. d seq. new firm, partners of new firm, how sued for debts of old firm, 89, ^«. of partner, appeal in name of partnership, when substitu- tion of proper, 106. '^^. of all. one of seven.l joint payees may sue in, 36, it". common law, person sue and be sued in reputed. 3, ^. of probate .indge, action in, effect of resignation of upon action. 49, -, et seq. public officer sues in what, 47, '^, et seq. corporate, public officers declared bv statute to be sued in, 47, ». purchaser of property of bankrupt, when may sue for in own, 54, 8, et seq. every action, general rule, must be in, of real party in interest, 31, ^. receiver may sue in whose. 52, ^. et seq. ■when action for trover brought in receivers, when not, 52, ». ai)pointment of receiver pending action, suit continued in whose, 52, ", et seq. receiver, death of pending suit, continues, successor, 52, i^. suit against school district should be in its, 46, ^". State usually sues in own, 39, ^. of State, attorney-general may use to pursue any remedy, 48, ^, et seq. of State, when will not be permitted to be used, 39, '. superintendants of poor, in what name may sue, 90, *'. of office, siipervisoi 8 of town, meaning, 45' ^, et seq. of town, action brought in, probably proper, 45, ^, et seq. town when incorporated should be sued in its, 46, i. of individual trustees set out in suit against unincorporated town, 4G, ^. of trustee of express trust, note held in suit may be in, 32, *. unincorporated association cannot be sued by, 92, ^. of unincorporated association, changed pending action, effect. 92, \ wife deserted by husband, when may sue ^sfeine sole, 63, i^. wife may recover separate property fraudulently loaned by husband in own, 65, *". action for slander of Avife, action brought in whose, 65, i^. writ of erro.' prosecuted in whose, 108, ^^, et seq. Named a-; defendant, prrson not liable as, until process prayed against, or is, 1. n, i^. as party, person not, answer filed for does not make, 1, i*. INDEX. 457 Named — Continued. a.^ partv iu bodv of petition, and treated as such, sufficient, i 1, '1^ in the record when jurisdiction depends upon tlie party it is the one, 10. ^. Natural streams, ill-constructed culvert over, liability of city I'm- injury, 4i, ^'^. Navigable streams, bridge over, county not liable for, 42, >". Necessaries, furnished family, husband, as rule, liable for, GS, ly, ef seq. furnished family, wife not sued alone for, after death of husband, 6S, 27. furnished wife deserted by husband, latter liable, 68, ^*. furnished wife, wlien husband not liable for, C8, ^^. Necessary party, who is, is, ^. who IS not. to a suit, 20, ^ et seq. mere agent is not, to suit, unless fraud charged, 24, '^'^. •when assignor is, 24, 3", el seq. to action, attorney is not generally, 24, '°'^, et seq. to bill for an account, 24, ^. to action for account against common agent, 24. ■*. to bill for account ot personal assets of estate of decedent, 22, a*, et seq. suit by ward against guardian for an account, 24, ' , et seq. to bill for account by infant ward against guardian. 21, ^. to suit for partnership accounting, 25. ^, et seq., 24. **. creditors secured bv deed of trust, one to suit for account of trust fund. 23^ -^^ to suit against trustee, creditors for in account, payable iu classes, 23, ^'j, et seq. to suit for account against administrator of deceased trustee, fund uncertain in amount, 23, -'•'. to suit upon joint bond, 24, -^S et srq. t) suit for breach of contract, 24, ''^'•^, et seq. to suit to rescind contract, no general rule, 2G, -•*, et seq. reform contract, mistake, 2(j, i^, et seq. when judgment creditor is not, suit to annul convevance, 26, '^K to suit relating to rights of corporation, 25, ^". to suit, corporations consolidatid, 25, -^. to suit of stockholder relating to corporation assets, 25, '^'^. bill to enforce liability of stockholder for corporation debts, 25. 2", el seq. to suit to dissolve and wind up corporation, 25, -'. to a creditor's bill. 24, !*>, et seq. to suit to reach property of debtor, 24, i^, et seq. to suit to subject lauds of debtor to pavment of his debts, 2u, •'^ et seq. P.\RTIKS — 39 458 INDEX. Necessary T artj— Continued. to bill to it-acli property of judgment debtor in hands of heir, g 24, '^■^, tt st^q, to suit to subject property devised in trust, payment of claim of creditor, 23, ^*. to suit to reacn property of one partner and apply to pay- ment of firm debt, 25, ^2. to suit by debtor to recover collateral securities, 24, 2. to suit to cure misdescription deed, 26, ^^ et seq. to suit for divorce, when trustee is, 23, ^". to bill to reach assets, when representative of deceased co- executor is not, 22, *3, when distributee is not, in suit to recover over advances, 22, -'^ when heirs are, to suit against estate, 22, ^^, et seq. to suit to subject assets devised to payment of debts, 22, 2^. to bill for settlement of estate of decedent, 22, *«, 2'2, y«. proceeding to set aside final settlement and subject lauds of decedent to payment of debts, 26. ^^ in suits relating to the homestead, 26, '^^, et seq. to suit for injunction, 28, ^, et seq. city, injunction, 28, ^s, et seq. bill to enjoin action at law, 28, *^. to suit relating to insolvent estate, 24, ^6. ^ what interest must exist in order to constitute, 18, ^^. when may intervene in a suit, 109, 22. to suits in equity relating to land, 26, ^. to action of ejectment, 26, '°''^, et seq. to suit for partition, 28. ^'^, et seq. to suit to quiet title to lands, 26, ^^ et seq. to suit to enforce specific performance of contract to con- vey land, 26, *>, et seq. to suit by devisee to recover lands devised to, 22, ^'. lands of decedent, when heir need not be joined in suit relating to, 22. »". to suit to enforce vendor's lien for purchase price of land, 'll,'\ et seq. to bill of surety to subject land to payment of bond for price, 26, »2. infant is, to suit to rescind contract for ptirchase of land, 21, 1^. in bill to recover legacy, 22, *', et seq., 22, ^^. when legatee of funds devised is not, to suit to recover from executor, 22, ^a. to suit to recover share (assigned) of legatee or distributee in estate, 22, *«, et seq. to suit to enforce mechanic's lien, 27, J^, et seq. r^ to suit to foreclose mortgage, 27, ^^. et seg. Es-DEX. 459 Necessary 'Pa.rty—Contimied. TO suit to set aside mortgagee's deeds of trust, etc., § 2G, '■^'^. suit relating to partnership, 25, ^, et seq. to suit to set aside conveyance of partnership property to trustee, 25, ^'^. to suit for dissolution of partnership, 25, i*. to bill to redeem, 28, i, et seq. ■who are not, to suit to enforce trust, 23, ^'. to suit to establish implied trust in lands, 23, ^^ et seq. in suits relating to trust funds, 23, S et seq. general rule cestui que t)'ust is, to suit bv or against tnistee, 23, ^, et seq. when cestuis que trust numerous, 23, ■*. ■when heirs of deceased trustee not, 23, ^t. trustees are, in suits relating to trust funds, 23, ', et seq. to suit by creditor to subject trust property- conveyed to sureties, 23, ^-. to bill for appointment of new trustee, 23, -''. to application by executor of deceased trustee for appoint- ment of new and accounting, 23, ^. when trustee is, to suit of surety against principal, 23, ^i. when w;fj is, to suit, 21, i*, et seq. Negligence, of agents, etc., of corporation, when latter bound by, 91, 22. of decedent, when action for will lie against personal repre- sentative, 76. dis'inciion between invitation to come upon land and license to use, 80, ^. of third person insurance company sustains loss, when action accrues in favor of. 38, ^^. when landlord liable to tenant for non-repair of leased premises, 80, ^, et seq. when master liable to servant for acts of, 83, '^, et seq. ' of railroad company, when heir mav recover for death, 107, 21, of servant, absence of master no joint action against both, 85, '. servant liable to master for, 83. ^^. action for personal injury resulting from does not survive, 107, 23. when tenant liable to stranger for injuries received by non- repair of leased premises, 80, *, ^. Next friend, idiots may sue by, Gl, *. ditl'-rence between and guardian ad lite7n, 56, ^" for infant who may be, 56, 21. need not be relative of infant. 56, ^^. court need n^t grant permission to infant to sue by, 56, *2. of infant, aut'.iority of court over, 56, 2-. 460 INDEX. Next "Eriendi— Continued, infant should sue by guardian or, § 56, ^, et seq. ■when infant may sue by, 5G, ^*^, et seq. infant may not sne hj,'in forma pauperis 56, -■^, et seq. of infant, status of, 56, ^^, et seq. of infant, powers in an action, 2, ^^ of infant may employ attorney to condnct suit, 56, '^^. pleading fails to show party is an infant, motion to strike out name of. proper, 56, ^^. infant by, may call guardian to account in equity, 57, ^^. suit by infant as relator, proper, action on bond' of former guardian, 57. 21. infant cannot bring suit of partition by, 57, '^, et seq. writ of entrv for lands of infant brought in name of bv, 57, «. infant when not liable for malicious suit brought by, 59, ^=^. when action by insane joe rson brought in his name by, 61, ". infant wife sues by, or guardian ad litem, 56, '^. may not sue for infant wife against wish of infant husband, 56, 11. when wife may sue for injuries to by, 65, '*. bill of wife, husband must be unless, 63, ^^. wife sues husband in equity by, 67, '. Next of kin. See Kin next of. New firm, partners cannot be sued in name of, for debts of old firm, 89, 23. New party, when application to be made, will be denied, 6, ^^. how made, 101, ^^. at common law, could not be made by amendment, 102, 21. amendment on appeal not allowed to make new case against, 106. 21, not bound unless complaint states cause of action against, 104, 5. Code rule for making, 101, ^2. complaint not amended, to reach, suit will be dismissed as to them, lOi. la. to creditor's bill, no objection. lOi, ^. to creditor's bill, discretion of court. 5, •5. when creditors will not be allowed to be made in foreclosure suit, 104, 1^. after decree reversed, when allowed, 103. 2e, when defendant may cause to be made, 104, ^, et seq. should be made when in^'ispensable, wanting, 104, ^, et seq. defendants, when ultimate rights of will not be settled in suit. 9, •»«. equitable defense to action at law mav not be made, when, 9, 2-'. .to bill in equity, allowed after demurrer sustained, 102, '^. INDEX. 461 New Party — Continued, person having no legal interest cannot force plaintiff to make him, | lOi, i", et seq. interest transferred pendente lite effect, 20, *, et i^eq. defendant parts with interest in suit not necessary to make, 8, '\ too late to insist on being made, after judgment rendered, lOi, 1^ non-joinder of, indispensable, effect, 103, 21, et seq. when person cannot insist on being made defendant in action of ejectment, lOi, i'. practice iu making, lOi, ^. practice in making regulated by courts, 104. 2. sought to be charged in suit, service of process not suffi- cient to make, 104. *. no error to refuse to allow jyendenie I'de purchaser to be made, in foi'eclosure suit. 104, ^*, stockholders' suit, amendment of pleading, 3, -i. mad- after cause remanded from supreme court, 102. 32. New promise, statute of limitations, effect of on parties to note, 35, 3o. New suit, executor of deceased co-defendant in action on joint contract reached only by, 107, ^^ et seq. revival of suit in equity after abatement of, is not a, 105, ^. scire facias to revive judgment not regarded as, 105, ^". revival of action is not, 71, '^. Nominal party, who is, 2, 1. when bankrupt may not be, to action, 53, 2. when may control action, 2, 2. husband is, in action against husband and wife jointly for her separate liabilty,"2. ''^. to judgment, payment of amount with notice to, no satis- faction, 2, ^'>. State is. in action upon official bond, 39, ^^ Nominal plaintiff, death of. amtndment formal only, 107, 2. what Control over action, 2, ', et seq. Non-joinler, of defendants, objection for, how raised, 100, -*. oi detV-ndants in action upon contract, effect, 103, ". et seq. of defendants action ex contractu, objection how, 101, ^. of defendants to bill for account of partnership affairs, when demurrer overruled, 89, ^^, et seq. of defendants in action of tort no objection, 103, ^ 100. ■^'. of co-executors as parties plaintiff, 71, ^". motion to make parties must be made iu order to predicate error, 103, ^^. who may not object for, 101, ^. when defendant object to, 101, ''. 462 IKDEX. Non-joinder — Continued. ol' parties, when objection first made in supreme court, ? 103, 2^ 102, 32, et seq. when too late to object to, suit for accounting trustee for benefits of creditors, 33, ^'^. of parties to bill, four modes of making objection, 100, i^. of parties, objection for, how raised, 100, ", et seq. of plaintiffs in action of contract, objection, how raised, 100, 1^ e^ seq. of plaintiff, objection to, how taken advantage of, 95, i. of parties generally, 100. of parties, when amendment proper, 103, i^. of formal parties to bill in equity, effect, 103, ^ of indisi^ensable party, eflect, 103, ^^. of parties to bill in equity, wnen taken advantage of, 102, 22. of parties, demurrer for must show who are proper, 100, i'. of parties, sufficient excuse for in equity, 103, i^. of parties, when amendment allowed after decree reversed, 1U3, 26. of parties, when none, bill for, all having common interest, 100, i«. of parties plaintiff, in action for tort, how taken advantage of, 100, l^ et aeq. of plaintiffs, when objection waived, 100, ^^. of plaintiff in tort, matter of abatement only, 102, -'K plea in abatement, second not allowed when, 100, 2«. of tenants in common, as plaintiffe in real action, when waived, S2, 12. of tenants in common in actions for torts, effect, 81. ''. of husband, when wife carrjuug on separate business can- not plead, 68, ^i. chose, assignment of, common law, who sue, 34. 2. et seq. chose, rights of parties in action upon costs, etc., 34, 2. chose in action, purchaser from trustee in insolvency may sue in name of latter, 32, ">. instrument, contract under seal is, unless, 35, 2^, et seq. Non-resident, who is, rule in Louisiana, 29, 21. cannot be compelled to appear and plead unless, 12, 1. appearance by, is M-aiver of objection to jurisdiction of court over person of, 16, i'. co-administrator, need not be made co-plaintiff, 71, '^ defendants residents of different counties, sued in either, 10, «. person made defendant for purpose of acquiring jurisdic- tion over, how objected to, 103, ^. action brought by, no security for costs dismissed on mo- tion, 8, i«. infant defendant, how served with process, 11, i". rsT)Ex. 463 Non-resident — Continued. became iusaue pending suit, practice, § 11, ^. 4 judgment against, 10. ^. jurisdicrion not acquired over by improperly joining with resident, 10. ^. jursdiction over hv joinder with resident, judgment against alone, 10, i". defendant, how jurisdiciion over obtained in suit to enforce equitable lien, 11, **. brought into jurisdiction by force or fraud, service of process upon bad, 11, ^. jurisdiction over pirson not acquired in personal action by publication, 13, 9. presumption of jurisdiction of court over. 12. ». when p.esumption of jurisdiction of court over, from rec- ord of, when ceases, 10, 1^. jurisdiction over property of, 12, •^. party warned by publication, 12, ■*. defendant served by publication, in court for what pur- pose, 13, ^ State may subject property to payment of claims of its citi- zens, 12, ^. misjoinder of defendants in action upon contract, when proper, 103, •*. non-joinder of ].laintiffs, when ground of. 100, 1^. Non-suit, non-joinder of defendants, objection not properly raised l)y, 100, '^'^. when plaintiff cannot take, without consent of defendant. 8, 1". Note, made to " A.. B., Pres.," who sue on, 84, «. from X. to A., consideration moves from B., A. may sue, 37, 11. made to one "as commissioner," necessary party to suit on, 24, *". made to administrator, upon his death his executor may sue, 72, i«. belonging to third person, administrator holds and refuses to pay, effect, 7G. held for pavment of debts, trustee proper party to enforce collection, 23, '-^'^ assignees of, not made parties by admission in pleading that suit prosecuted for use of, 1. **. held as collateral securitv, may be sued upon in name of holder, 32, ». forged, when agent for collection may recover from prin- cipal amount paid on, So, --. assiijned to fictitious p-^rson, suit to enjoin collection of, right of assignor, 35, •*'. 464 INDEX. Uote — Continued. transferred for collection, or as collateral security, holder may sue, § 35, i^, et seq. , transferred "for collection," holder niav sue in own name, 32, «. bill to restrain collection of, necessary parties, 28, **. ■when assignee may intervene in suit upon, 110, i*. compounding crime, payment to bona fide holder, money cannot he recovered back, 35, ^f. given in pursuance of contract, rights of assignee, 35, '^*. contract under seal in form of, not negotiable, eflect of indorsement, 35, -'*. given for purchase of land, when joint may sue for recision of contract of sale, 96, i-. made to agent of corporation, latter may sue, without indorsement of, 90, i*. given to induce creditor to sign composition agi-eement, when money may not be recovered back, 3-4, ^e, statute, who made parties defendant in action upon, 97. ^^. in action upon, maker and indorser may be sued jointly, 97, -^, et seq. in action upon, guarantor joined as defendant with others liable, 97, a. suit upon, in Mississippi all persons liable on, made defend- ants. 97, i«. what defenses maker may interpose, 84. '". et seq. given to guardian of infant, when former may sue in own name upon, 57, ^. for purchase price of lands of decedent, when heirs are necessary parties, 22, ^. when holder may sue upon, 35, ^^. et .spg. pavable in specific chattels, holder by indorsement mav sue, 35, ^". regularly indorsed, holder may sue, only defense, 35, -•. need not be indorsed to enable holder to sue, 35, ^^. and guaranty, transferred by verbal assignment, holder may sue as\'eal party in interest, 35, ^, et !>eq. to cover purchase price of land, suit by holder of one of several, necessary parties, 27, '^, holder may sue all or any party thereon at his option, 35. ^^. of partners who liave no firm name, firm insolvent, rights of holder, 55, n. joint and several, of insolvent partnership, rights of holder of. 55, i». given to partnersliip, indorsed by one partner, holder may sue (Code), 35, \ made by firm to firm having common partner, assignee of latter mav sue in own name, 35, •*. INTJEX. 465 Note— Continued. joint by husband and wife, pleading should show what, ^ 09,", of husband and wife for debt of husband cannot be enforced against wife, 08, l•^ et seq. of husband for family expenses, although taken wife may be sued, 6S, ^«. when wife may sue husband upon, made before marriage, 67, ^ transferred by proper indorsement, indorsee may sue, 35, '*. assigned without indorsement, assignor proper party to suit on, 2i, ^*. when maker may compel interpleader, 114. ^. if plaintiff has possession of and is legal owner he may sue, 35, 1-'. in action upon, plaintiff need have no beneficial interest unless, 35, ^", et seq. equitable o^vner may intervene when, 110, ^. payable t > bearer, action upon should be in name of person holding legal title, 35, ', tt seq. executed to two jointly upon death of one, survivor may sue, upon his death his executor is proper plaintiff", 72, i*. to several payees, one after becomes bankrupt, necessary party to suit on, 24, '^^. legal and equitable owner of, cannot be joined as plaintiffs in action upon, 102, ^. action upon, judgment, when may be entered against in- dorser and action dismissed as to maker, 97, -^, et seq. in action upon judgment may be entered for indorser and against maker. 97, ^'^, et seq. statute of limitations, effect of new promise on parties, 35, ^^. and mortgage transferred by foreign administrator, as- signee may not sue, 35, ^^ and mortgage, when plaintiff mav join in action for cancel- ation of, 9(3, ^i. secured bv mortgage, part of makers sign mortgage, relief, 99, '. ' made by Y., mortgage by X., no personal judgment asked, Y. not necessary party to foreclosure, 27, --. executed by X., mortgage by Y., in foreclosure both prop- erly made parties, 2i, -'. secured by mortgage, assignment of, carries security, but transfer of security, 36, -'. secured by mortgage, indorsement of carries security, holder may sue,"35, ^". two secured bv same mortgage, holder of either mav fore- close, ?6, -'«.' non-negotiable, made to agent, when principal may sue, 84, ", et seq. 466 INDEX. Note — Continued. action upon non-negotiable, assignee capacity, etc., § 35, K uunegotiable, assignor holds title to as trustee, necessary party to enforce collection, 23, ^^. non-negotiable, of wife, when assignee of may bring suit in name of husband and wife, 64, ^'. indorsed, generally delivered to one partner, firm may sue on, 88, 7. made by one partner no action against the firm, 89, ^^. made by two partners on payment by estate of deceased, contribution, 72, -^. rights of pledgee in, 87, ^^, et seq. purchaser of, from assignee of insolvent, may sue in name of latter when, 55, <*. given for rent of land when assignee may recover from pur- chaser of crop, 35, 32. of infant for land, effect of disaffirmance, on sureties liabil- ity, 59. 3. held by trustee of express trust may be sued on in his name all (lie, 32, *, et seq. Note lost, assignee of may sue in own name, 35, '^^, et seq. presumption as to ownership of, 35, '^^. Notice, of intervention, who must take. 111, ^". when parties need not take, 109, •■". debtor after, of assignment of unnegotiablc chose, liability, 34,^. principal should have, of application to have judgment assigned after payment, 86, ^u. of motion to substitute assignee as party, administrator must have, 106, 3. stranger must have, of partner limiting liability, 89, i^. suggestion of death, opposite party entitled to. *105, ^. of revival of action, defendant entitled to, 71, ^^. Nuisance, rule for making parties to suit to restrain, 30, ^^. citv must not permit sewer to become, 44, i", et seq. liabilitv for continuance, person conveying premises, 30, ^^ county not liable if jail is kept so as to be, 42, ^^. when landlord must join tenant as co-plaintiff in action to suppress, 79, ^■*. fiowage of lands, who may join as plaintiffs in suit to restrain, 95, ^^. public, who may sue for injury, 30, i", et seq. action for, survives death of wrong-doer, 76. Numerous, parties, when one may sue for benefit of all, 30, *. parties, p8rsons having common right, when dispensed with, 19, 10, et seq. stockholders, when need not be parties, 25, i". INDEX. 467 Nunc pro tunc, order, plaintiff becomes bankrupt after sub- mission of cause to siipreme court, § 53, '^^. partv, death of after argument and before decree, date of, lOo, --JS 108, i». Objection, what not valid to joinder of plaintiffs in equity, 96, 1. et seq. Obligor, joint, in Louisiana may be sued separately. 97, 2». Occupant, of lands, party to action of ejectment, 2G, ^^. et seq. of lands, when need not be party to ejectment, 2G. ^*'. Office, abolished, action in name of probate judge upon bond, although, 32, ^. city may bring bill in nature of interpleader against antag- onistic claimants of, 43, '. public officer, kept out of by intruder, extent of recovery, 47. 12. public, quo tcarranto to list right to, how brought, 39, ^. Officer. S 'e Shekiff. general rule, have capacity to sue, 47, i. bill to prevent city from paying fire marshal for services, necessary party, '28, ^2. of city, liability of latter for tortious act of, 44, i^, et .'^eq. quo warranto against single, city not therebv made partv, 44, ^\ must bring action for breach of contract of purchase at execution sale, 36, *'^, el seq. of corp^ration, when latter not liable for, 91, i', et seq. of corporation, latter may sue for conspiracy to destroy its business, 90, i''. of corporation changed after suit brought, who defends suit, yl, 1". of corporation, when court will not interfere with. 91, ^. de facto, of corporation, action by, what will not defeat, 90, i«. county, money paid to, for services paid back when, 41, ". attaching, when joint action will lie against creditor and, to recover goods taken, 98, 66, et seq. false return, plaintiffs may join in action for. 0;i, ^. suit against, for fines collected State plaintiff'. 39, '*. when not proper party to bill for injunction, 103. -'. wrongful taking property from, after levy may sue for damages, 36, *•», attaching firm propertv for debt of one partner firm mav sue, 88, 1^ replevin against, substitution of defendants in action, 106, 2u. or agents, State cannot be brought into court by means of proceedings against its, 40. 12. of State cannot bind it by pleading in suit, 40, ^*. 468 INDEX. Officer — Continued. executive, of State, no proceeding against in federal courts, § 40, J3. attaching chattels belonging to co-tenants, liabilit}'- of, 81, 19 2U^ of town refuses to pay over funds to successor town may sue, 45, ^ of town, change of, pending suit by, effect, 45, ^. of town, indictment will not lie "^ against, for failure to repair bridge unless, 46, i". of town, when mandamus ^Yill not lie to compel, to rebuild bridge, 46, n. Officer public, may sue how, name, 47, ^ et seq. action by, does not abate by death or removal from office, 107, 3t; 50, 5, 47, «. bond to and successors of, who may sue, 47, ^. declared bv statute to be corporation, must sue in name of, 47, \ parish treasurer cannot represent corporation in court, 50, 6. when will not be restrained from canceling license of foreign corporation to do Imsiness, 47, ^^. recovery from intruder in office, extent, 47, ^-. not liable for a judicial determination however erroneous, 49, 1^ monev paid to, for services, when may be recovered back, 47, 1". must pay over money to successor, 47, ' . et seq. when no demand necessary for monf y in hanos of, 47, '^ liability to suit of private 'person, 47,'-*. Official bond. See Bond. who may sue upon, 36, *, et seq. in suit upon, wno must be relator, 36, ^. when person injured may sue on, 36, '". when action properly brought in name of county. 41, •>. action upon, by probate judge, effect of resignation, 49, ^. for recoveiy of school money, when brought in name of State on relation of proper county, 41, •*. sheriff not liable xi-pnn sale of property of stranger to writ of execution, 51, ^'. given in name of State, suit in its name, 39, ^^ ei seq. clerk State prison, who may sue upon, 48. ^. of county treasurer, county may sue on, 50. ^. (Neb.) suit upon bond of county treasurer, how brought name, 50, ^. when county treasurer liable to suit upon, 50, ^^. county treasurer may sue tax collector upon for failure to jDay over money, 50, '^. I ixDEX. 4G9 03':et, lai'p:cr than claim of assignee, no reason for making u.-~j-ds. Cverflow. of lands when joint action will not He for acts caus- i:;g. 98, 15. Ord3r, coM'i mav bv ex parte, a^^point guardian for insane defendant,' 62,' i. appeal lies from what, in intervention, 111, '■^'■^. of court granting power to sue receiver, authority of court over, 52, '^'^, et seq. Owners, separate, of herd of cattle, when jointly liable for trespasses of, 98, ^. when consignor of goods delivered to common carrier may sue for injury to, although he is not the, 87. ^ et t. generally husband may be made, to suit rclatmi^ to prop- erty oi" wife. 21, -^ husband made, uponsuggestionof marriage of female, C3, '". when wife does not become, by joining husband in motion, 1, ^». husband joins wife in appeal thereby becomes a. 1. '^. to proceeding by mandamus, county against its officers, who may not be, 5, '. misjoinder and non -joinder of, generally, 100. misjoinder of, who may object, 101, ^, et req. plaintift, misjoinder cannot be reached by demurrer to answer, 100, ^ misjoinder plaintifl', proper motion to strike out name, 102, 1*, et seq. misjoinder plaintiffs, action for tort after cause remanded from supreme court, amendment proper. 102. '. to motion to correct a jtidgment, who are, 7, '-. must be described by name and not by desci'lptio personce, 4, ^ motion to strike out name of, when proper, 102, '^ et seq. legally interested, action upon contract brought in name of, 81, ^, et seq. must vindicate his rights in his own name, 3. ^ et seq. person not named as, does not become bv reason of answer filed for, 1, '*. person named in body of petition and treated as, is a, 1, '^. necessary, who is, 18^ ^. who is not a necessary, to suit, £0. '^, (t seq. next friend of infant is not a, oG, ^^, e' siu^. new, prac ice in making, 101. '. new, practice in making regulated by courts, 104. 2. new, made to creditor's bill without oidir of court, 104, =*. new, service of process upon not sufficitnt to make, 104, *. new, stockholders' suit, amendment of pleading-, 3. '^^. new, to bill in equity p'.opcrly allowed to bo made after demurrer sustained', 102, '^. when new, allowed to be made after decree reversed. 103, '^. to bill in equity, want of, when taken advantage of. 102, --'. want of, raised at final liearing, effect, 1C2, '^^, et srq. non-joinder of, objection first made in supreme court, 102, 3-'. et sf^q., 103, -*. non-joinder of, liow objection raised, 100, ". ef seq. to bill, non-joinder of, nioeles of taking objection, 100, '^. non-joineler of, who may not object, 101, ^. 474 INDEX. Party — Cnnlinned. Don-joinder of, indispensable, effect, ? 103, 21, (-t s-eq. formal, misjoinder or non-joinder of, in equiiy, efltect. 103, \ demurrer lor, non-joinder must show who are proper, 100, 1^ sufticient excuse for non-joinder of, in equity, 103, ^^. want of, court niaj' notice and of own motion order amend- ment of bill, 102, 28^ et seq. non-joinder of, wiien amendment proper, 103, ^'^. to suit to restrain nuisance, 30, i^. numerous, when one may sue for benefit of all. 30, *, et seq. stockholders numerons, when need not be, 25, ^^. numerous, in] unction to restrain colleciion of tax to pay bonds, 28, ^', omission of, no error predicated upon, unless motion to make, 103, ^^ who should be, to suit for partition, 82, '^'^, et seq. to action of partition, are all actors, 82, ^■*. plaintiff, who is in an action, 1, *. who m.ade plaintiff in suit in equity, 96, ^ et seq. -ame person cannot be both plaintiff and defendant in action at law, 6, ^", et seq. equity suit, same person may be both plaintiff and defend- ant, 6, ^'^, et seq. solo plaintiff assigns his interest, suit ceases, equity, 107, ^8. proiDer, who is to suit, 18, ^". qucihi, when principal of a bond binds himself to obey the order of the court, his sureties thei-eby become, 1, ^^. quasi, when relator becomes, 1, ^^. to suit to quiet title to lands, stranger may not become, 5, ^*. who real, who nominal, 2, ^ appointment of receiver pending suit must be made, 52, ^5. after decree either ma^^ revive action, 105, ^. must vindicate own rights, cannot complain for others, 8, 1. exception to rule that rights of person will not be deter- mined in suit to which he is not joined, 28. ^'■^. being made by supplemental jDleadings will not deprive persons of rights acquired, 8, ^". rules as to making, when chancery adhered to, 9, ^*. exception to general rule for making to suit, 19, ^ et seq. exception to rule for making in courts of United States, 19, ». when road district may not be, 20, ''. status of sheriff as to suit to restrain the execution of pro- cess, 51, 21. stipulation, effect as to time when person made, 7. '''^. stranger may make motion in action that he be made a, 8, '■^. INDEX. 475 Va-rtj ~ Contimied. substitution of, notice, ? 106, •*, et seq. sole, amendment not allowed to extent of substitution of new party for, 106, ^'^. substitution of, same rule in supremo as in circuit court, 108. 8, extent of power of substitution to pending action, 100, ". substitution of administrator by exj^cirte motion on deat!i of plaintiff, 106, ^. administrator of defendant cannot apply to be substituted as, remedy. 103, ^i. substitution of assignee as, administrator must have notice, 106, ». suit a2:ainst trustees for fraudulent breach of trust, excci> tion to rule as to, 3 j, ". United States, when recognized as plaintift", 1, ^^. when widow and next of kin are, to probate proceeding, who should be to suit to obtain constniction of will, 22, '. Partition, who may maintain bill for. 82. s', ct seq. suit for, fomaio defendant marries pending, husband not made party, effect, 7, ^K inf.iut brin.^s suit for, by guardian, 57, ^s et seq. on behalf of infants, wlien will be denied, 57, ^^. Fuit of, by heir, all co-heirs must be joined, 28. '^-. ■when husband and wife may unite in bill for, 06, '^^. of lands, Indian may Fue for, 29, '^K who made parties to suit for, 82, 3^, et seq. suit for, insane person must be party, 28, ^'. person interested may bo made p;u-ty at any stage, 5, '. necessary parties to suit, 28, i-, et srq. suit, administrator of deceased co-tenant not nccessai-v party, 28, -K suit for, when vendor of complainant not necessary partv, 26, 16. suit, wife claiming dower interest should be party, 28, '*'. parties to suit, immaterial Avhat position of upon record, 28, 13. to maintlin suit plaintiff must have possession, 82, ^. statutory action of. plaintiff need have neither possession nor right of, 9, -». suit, occupants of land and encumbrancers not necessary parties to, 28, -3, (-t siq. right of. extent, 82, ^K et seq, when sale of the iiremises will bo ordered bv the court, 82, 36. statutory action, can same person be both plaintiff and defendant in, G, i-, et seq. 476 IXDEX. ""~" Partition — Continued. action for, revived in name of widow and heirs fstatute Va.) g 107, •'". equitable suit for, title disputed, must be established at law, Partner, suit by, for accounting of firm assets, 25, ^, d scq. member of two firms, may sue in equity for accoiuit, b:8, '^. cannot maintain assumpsit against co-partner until account settled, 88. »*. when may sue co-partner upon express promise, 88, '^^. and assignee of bankrupt, may be joined in action on bond, 54. 5, " bankrupt, when assit^nee of, necessary party to suit to re- cover firm assets, 25, ^. bankrupt, application for discharge, acts of co-partner, 54. ^. bond given to, firm undisclosed, may sue alone, 88. ^-, when contract of co-partners made by statute joint and several, any one sued, 89. *', et srq. not necessary to prove i)arties to contract are, to sue jointly, 94, 1, et seq. who should l)e defendants, in action against firm, S9, i. when entitled to be made defendant in action against co-partner, 89, ^. suit by for injury to firm property, co-partner made defend- ant, amount of recovery, 88, ^". bill of discovery filed cither for or against, 2. ^^, et i^eq. all sliould unite in action on partnership claim after disso- lution, 88, '^'^, et seq. suit against co-partner for dissolution, substitution of as- signee of bankrupt plaintiff' proper, 54, <>. for tortious acts of on(>, when firm liable, 89, ^-. et seq. injunction against co-partner, when proper. 9. ^'. when may restrain co-partner from collecting partnership cffects,'88, 21, et seq. all of firm must be parties to suit to restrain publication of copy of alias sold by one member. 28, ^. insolvent, selling all interest in firm property to pay own debt, co-partner may sue. 88, '^'^. in suit liy. when agent of firm anel insolyent co-partner made defendants, 55, ^'^. cannot confess judgment tobind firm pi-nperty except, 89, ^^. to limit liability notice must be given, 89, ^^.' managing, cannr^t sue for all, 88, ^. generally, all unite in suit to foreclose mortgage taken to secure firm debt. 27, ^'-. et seq. when suit against partnership may be against it, either in firm name or in names of, 89, ","ei ,seq. rs-DEy 477 ?a.Ttner — Contiynied. in new fii-m, cannot be sued in name for debts of old firm, ? 89, -'K Avhen note made in name of, no action against firm, 89, ^^. when need not be party to partnership suit, 25, *, et scfj. all are necessary parties to suit n lating to partnership, '25, ^ . when proper parties to money rule aj^ainst sherift", 25. ^i. dormant, need not be made plaintili" in partnership suit, 88,*. cannot sue co-partner for fraudulent removal of fiim property, 88, i». •when niav maintain replevin against co-partner for chattel, 88, -'". ' generally, suits by, 88. .-.-,^i««- who may sue for firm, 88, &, c. suits against generally, 89. surviving (La.) joinder of representative of deceased, in action for recovery of money, 25, ^. defendant, death of one, suit proceeds against survivor, 107, «, when survivor mu^st account to the administrator of the deceased partner, 72, -^ surviving, when cannot recover firm property from exe- cutor of decedent, 7i. surviving, ne^er joined as defendant with repi'esentative of decedent, in action on partnership debt, 74. on death of one the survivor may settle the affairs of the firm, 72, 2", survivor, not liable for balance due estate of decedent until aft-urs are settled, is liable to account, 72. ■-^, -i. attachment of firm property for debt of one, who sue for trespass, 88, ^'^. verdict against, when sued jointly, 89, 3, et seq. Partnership, liability for tort, joint or several, 98, *, accounting, suit by partner for, necessaiy parties, 25, ^, el seq., 24, **. accounting, when heir of deceased partner not necessaiy party to, 25, ^^. action' lies by, against one who fraudulently induces it, to give credit to stranger, 88, ^. debts, suit on bond given to r< tiring partner for protection against, proper parties, 25, '^. debt, mortgage t iktn to secure, all partners unite to fore- close, 87,^ ^■-, et seq. debt, nece.-^sary parties to suit to subject property of one p:irtn r to payment of. 25. '-. suit for disso iition of. necessary parties, 25. ^*. after dissolution of, who may sue for, SS, -^, ( t seq. 478 INDEX. Partnership— Continued. dissolution by death of partner, survivor should sue upon claims of, | 88, ^^, et seq. bill in equity, partners should be parties, assignee of bank- rupt should be joined, 54, *. insolvent, rights of holder of joint and several note against, 55, 1". insolvent, no name, two partners, note made in individual names of, right of holder, 55, ^^. note indorsed generally to, may be sued upon by, 88, ''. note given to, indorstd by one partner, holder may sue (Code) in own name, 35, *. note, made by one tirm to another, common partner, assignee may sue on in own name, 35, ^. partner, member of two, may sue in equity for account, 88, 15, et seq. who parties to suit by, 88, *. property, attachment of all, for debt of one partner, firm may sue, 88, ^'■^. propeVtv, partner cannot sue co-partner for fraudulent re- moval of, 88, 19. property, injury to, in action by one partner for, where co- partner made defendant, amount of recovery, 88, i". property, partner cannot confess judgment to bind, except, 89, 1*. property, receiver of, when must sue in name of firm, 88, 11. suit by, in whose name brought, 88, i, et seq. when may be sued in firm name, 89, ^, et stq. suits relating to, necessary parties, '25, i, et i^eq. settlement of affairs of partners after dissolution, when receiver appointed, 53, i^. appeal in name of, what substitution permissible, 106, ^e. when liable for tortious acts of one partner, 89, i-, eiseq. undisclosed, when one partner mav sue on attachment bond, 88, 12. undisclosed, contract made by one partner for, firm may sue, 88, 8. when verdict in favor of defendant contrary to law, 89, i^. Passengers, misleading announcements, when railroad com- pany liable for, 91, ^8. Patent, infringement, when assignee may sue for, 38. i^. to lands, suit to set aside, attorney-general must institute suit, 48, &. to lands to testator after death of, necessary parties to suit by devisee to I'ecover, 22. ^i. Patients, smuU-pox, town not liable to physician for treatment of, 4G, «. ^ ES-DEX. 479 Panper, action brought to recover expenses of settlement in town, liow brought. § 45, *, et seq. prisoner, county not liable for delLiise of, 42, ^'. Payee, of lost note presumed to l)e owner, :;5. -=. of not-' given to compound crime need not refund money paid to bona fide holder. 35, '^^. joint, on death of one, joint note descends to survivor, on his death to his executor, 72. ^^. Payment, of debts. See Debts, Tayment of. of forged check, liability of bnnlc, 91, i', ct s^eq. ilkg il, bill to restrain, of city funds, necessary parties. 28, '". wluu common carrier liable for delivery of goods without, 87. K Penalty, when executor not liable for failure to discharge mortgage of record. 75. statutory, when tenant in common may not bring for treble damages against co-tenant, 82. ^'. for failing to file a report required by trustee of corpora- tion, survivor, 107, ^**. action by people of State of Illinois for use of, etc., when will not be dismissed, 39, ^. marriage of persons under ago justice of j^cace cannot recover amount back, 49, ". statutory, for violation of duty, when eitlier State or ' private person may sue for, 38, '^. Pending action, effect ot dissolution of corporation upon, 91, ^•^. Pendents lite, defendant becomes insane, guardian made partv, G2, ^. interest of party transferred action continued in name of, transfer of interest, effect of, new parties, 20, *, et seq. plaintiff becomes bankrupt, effect, 5 5. ^^, et seq. effect of death of plaintiff upon. 71, ^^. plaintiff declared insolvent debtor, su'.t may still proceed in his name, 55, 3. transfer of interest of plaintiff, in whose name continued, 34, 8, et seq. plaintiff transfers interest to trustee, latter joined as party. 23, 6. infant plaintiff' attains majoritv substituted as sole plaint- iff, 57, *. purchaser, when may defend action to recover land. 5, '-'. purchasers need not bo parties to foreclosure suit, 7, -'^. 27, ^^ 104, 11, et seq. appointment of receiver for party, suit continued for bene- fit of, 52, ''. death of receiver successor continues suit, 52, i". change of oflicers of town, effect, 45, ^. i80 rs'DEX. Pending suit, "who may intervene in, ^ 110. ^^. ]<}■ trustee death, removal of, practice, 82, ^-, rt Feq. Peorle of a county, are not a corporation, cannot sue or be sued, 41, ^. Person, for whose benefit a contract is made, could, before Code, sue in equity, 37, '^. el s(q. common right di>pensed with as parties, equity. 19, ^o. in collusion with administrator, when may bc'joined with as defendants, 22, ^*. having no interest cannot maintain action, 30, *. May and Mary names of different, 3, '•^. having interest in subject-matter of suit in equity should be parties, 18, ^, et seg. having interest in object of bill in equity should be parties, 18, ^, ct seg. without interest should not be made party, 20, ^. must have what interest in order to constitute him a neces- sary party, 18, ^^ when not a'necessary party to a suit, 20, i, et seg. same iu action at law cannot be both plaintiff and defend- ant, G, ^". (t sen. in possession of rji'operty, general rule mav sue for injurv to, 38. 1. Personal actions, at common law ai-e transitory, 9, '^. Personal property, when may not be transferred by owner, Personal representative. See AD:>nMSTEATOK ; ExEcrxoK ; Admixisteatok a^d Executor. of assignor, when n', cessary party to suit, 24, ^", et .'feq. capacity in which i::5 liable'for claims, 75. in action upon joint contract cannot be joined with tlie siTrvivor, may be sued alone, 74. in equity all liable upon a joint contract mav be sued, 74. in an action npon a joint and several contract, never joined as defendants with survivor, 74. only necessary defendant, in action against estate, 75. of co-administrator, when may be sued for distributive share, 77. proper person to recover assets of the estate, 22, », et seq. when may enjoin creditor from making sale of goods of estate, 72, i'. in case of insolvency, etc., of, heir may sue for debt due estate of decedent,' 78, i, d seg. must be before legacy can be recovered, 77. when necessary party to bill to recover legacy, 22, •'i, et seg. when action ior negligence or deceit of de'cedent will lie against. 76. rSTDEX. 481 Personal Representative— Co/2/i>iu«/. of deotastd iiii>rrLraj,'ur, when necessary party to foreclcs- Tire suit, ^ 27, '•^^, et seq, of next of kill, when necessary partifs to bill for final set- tlement of estate of decedent, 22. ^■'', it srq. note made to administrator, in evcr.t of his death who may sue, 72, ^6. of joint pavee of a note cannot join as plaintift' witli tlie sur- vivor, 72, i«. of survivor may sue on note to joint pyeesi, 72, i^, ''■'. of pirty not bound by proceedings in" i)ending suit r.ntil brought into court, 100, i". of phiintiff. failure to prosecute suit, docs not of itself dis- solve injunction, 8. ^'^. of debtor, when not necessary party t^ suit to rcacli prop- erty fraudulently conveyed by, 24, --. when necessary party to bill to redeem, 2S. '. <( ^eq. stranger subsntuted in place of bv consent, evidence admissible, 106, ^'. of co-surety, may be sued for contribution. 75. of surety, distribution suit for, against administrator, pro- per party, 22, ^•*. when right of action for tort survives against, 7u. Petition, in error, who may prosecute, 103. *. IK w parties make by as' matter of indulgence. 104. ^^. Physician, county liable to forjiost mortem examination, when, 42, "'. when guardian of wai'd liable to for services rendered slave of latter, 59, '. services rendered family, husbanl liable for, G3. -', , et ^fq. sutMcient description of. capacity 1 1 sue. 4, -. additions to name of. what are surplusage, i. '=, it seq. joint owner of chattel, sue for injury to, 95, '. P.\UTIES — 41 482 INDEX. Plaintiff— Continued. uniting sfveral caiises of action in one complaint, g 103, ^. ■\\]un may not recover npon wrong arising from breach of contract, 91, '^^. may sue in equity upon contract to which he is both prom- issor and promisee, 31, '^. when corporation as, had no instance, amendment allowed 90, 1.^. private person, when cannot recover against corporation, 91, 1^. death of liefore commencement of the action, how taken advantage of, 107, K death of, pending suit, 71, '**. death of, no reason for arresting suit against surety, 8G, '^^. death of, proper time for proof of, 108, *». death of, in action for seduction, effect, 83, ^2. death of, pending appeal, injurv to person, no abatement, lOS, 1. death of, p rsonal representative fails to prosecute suit, effect on injunction, 8, i-. death of, after judgment, administrator to sue out writ of error, 71, '^^. death of, in action, who may revive, 105, ^2. death of, when co-defendant allowed to revive suit in own name as administrator of, 71. '^^. dies pending suit for specific performance, who should revive, 7s, ^6_ death of, bill of revivor not preferable to f-DEX. 483 Plaintiff— Continued. when cannot recover in ejectment, ? SO, '". ri^'lits of in action of ejectment, 80, '^, t^t t^fq. all tenants in common must join in action of ejectment, 82, J^. executors, joinder of as, somn not qualified, 71, •'. '•'. joinder of, general rule, 2i, ^', 94. general rule in equity as to joinder of parties as, 9G. '='. cause of action in favor of each or either of two persons, not joint, 102. '-. joinder of, when saving of expense not suftieient r^.ason for, in equity, 9G, '^. as rule all joint trustees must bo joined as, 32, "', (t acq. contract to two for benetit of one, both mav unite as, 94, *. joint, what proof necessai'v to supp )rt action on contract, 9i, 1', et seq. person to be joined as in action upon contract must have unity of interest, 94, **, (4 t^eq. what liiust show to maint.dn interpleader, 114, ^. riglits of intervenor d) not help, 111, ''. what rights interveiKjr may not contest. 111. ^. lesal and equitable owner of note cannot be joined, 102, '. separate notes secured by same mortgage may sue alone or jo;ntly, 96, ', el Sf^q. who joined as, for torts. 95. when may join in action for injury from tortious act, 95, ». joint, landlord and tenant, in action to suppress nuisance, 79, '■1. joint, legatees to suit by executor to recover legacy upon land, estate settled, 78, '*. who may unite as, for damages for flowage of lands. 95. '". who may unite as. to restrain maintenance of nuisance iu flowing lands, 95, ". person without interest should not bo made. 20, ^. must have what inter* st in order to maintain action, 31, '". when all in interest sliould unite as, 80. *. person interested with class c.mnot sue for own individual benefit, 30, ">. wlien one person mav sue for self and all others interested, 30, *, et .s>7. bill brought for benefit of, and all others, etc., when may not be maintained, 30, '. general rule as to, who parts wirh interest pending suit, 34. ^ et .SV7. need have no beneficial interest in note sued on, unless, 35, ^^ ^/ .sv'7. transfers interest in pending suit, cfilct. cqi;ity. Code, IOC, *. 484 INDEX. Plaintiff— Continued. transfers interest pending suit to trustee, latter properly made party, ^ 23, ''. liecomes bankrupt pending suit, (fleet, 53, ^^, rt seq. in pending suit declared to be insolvent debtor may still l)roceed in name of, 55, ^. is real party in interest under the Code -when, 34, ^-, et seq. ferae sole, marriage of, efltect, 107, ^', ^-'t i^eq., G-4, ■*. to entitle to relief on ground of mistake, 9, -", el scq. to recover for negligence of another must be without fault, 38, •^^. beneficial at law need not be named in the record. 2, ^. non-resident, joint administrator need not be made a partv, 71, 1'. A. sues to use of B., when A. will be considered the real party. 2, ^. United States, when recognized as party, 1, ^^^. misjoinder of, effect in action of assumpsit, 102, '. misjoinder of, iii equity, effect, 102. ^. misjoinder in action for tort, efi'ect, 102, ■*, et seq. who may object to misjoinder of, 101, ^ et fieq. misjoinder of, when objection to waived, 100, ^, el seq. misjoinder of, when objection made, 102. '". misjoinder of parties, objection for, how taken advantage of, 100, ^ et fieq.. 9, '. misjoinder of parties, when defendant may demur as to a particular, 100, '^. misjoinder defect cannot be reached bv demurrer to answer, 100. «.. misjoinder of. objection reached by motion to elect, 100, *. co-plaintiffs, must be community of interest between or misjoinder fatal, 102, '". person made, without his consent, name stricken out on motion, 102, '', non-joinder of, objection, liow^ raised in action ex contractu, 100, 13, et seq. non-joinder of. in action of tort, (flftct, 95, ', et i^eq. non-joinder, wiien none to bill brouglit for self and all having common interest, 100, ^^. omits to make parties, when cannot take advantage of fact, 19, la. failing to malce parties within reasonable time bill dis- missed, 102. 30, eff. ct of non-joinder of tenants in common as, in actions for torts, 8i. ^. non-joinder of, when objection waived. 100. "*. when defendant may not force to make new parties, 104, ''. who proper, in suit "by partnership, 88, *. INDEX. 485 Plaintiff— Continued. executor of deceased partner cancot be joined with survivor in action npon clann. § 88, '■'^, el aeq. all parties arc ni partition, 82, ^'. must have possession to maintain partition, 82. •'^. in statutory action for partition need have neither posses- sion nor'right of, 9, '^'*. must replead on removal of cause to federal court, when, 9, ^''^. irrec;ularity in manner of siiing. avIio objects, 101, *. joint, to bill by surety to enforce his exoneration, who made, 24, '^, when may join all sureties upon separate bonds in same action, 8G, ^^ Plank road, injunction to prevent improper interference witli, who may maintain, 28, ^^. Plantation supplies. See Supplies Plantatiox. Plea, of alienage, requisites of, 29, •*, et seq. dilatory, time, when commences to run during wliich infant defendant must file, 58, '^'^. of infancv by one defendant action on joint contract, prac- tice, 59, '^. of infancy is jjersonal to the infant, 59, '. Plead, time to, general appearance does not waive, 16, ^ Pleading, in action against administrator what amendment proper, 74. discharge of bankrupt no effect unless set up as defense, 54, ^', et seq. fact of insolvency of principal should be alleged in suit by surety for contribution, 86, *. new name of corporation defendant, 91, ^. corporation changing name, how may sue, 90. '. cross, must be to enable defendant to recover against co-defendant, 11, ^. of defendant, defenses, 9, 2^. defendants to land suits made by general averment, 9, -'. of intervenor, effect of denials in, 110, ". person refusing to be plaintift" when made defendant, reason stated in, 6, •*, et seq. upon joint note of husband and wife, should aver what. G9, «. suit of wife must show, authorized to sue, 03, ", pi seq. when infant appears by guardian, appointment should bo shown, 56, '^^. fails to show party is an infant, not ground for demurrer, ^ 56, -'^ action upon instrument by one not a party to it, interest should be set forth in, 3i, ^-. Pleading— Continued. contract by one partner firm undisclosed, latter niaj' sue, proper allegations being made, ^ 88, ^. by an officer of State will not bind it, 40, ^*. to merits right of government not to be sued, not waived by, 40, a. supplemental assignee of defendant made partv to suit by, 11, '. in trover, when cannot be amended, 38, •>. Pledge, what is 87, ^. Pledgee, of property, rights of, 87, ^'^, et seq. Pledged, property bill against assignee of note, when assignor made party, 28, ^. Pledgor, liability to pledgee, upon secured debt, 87, '3, et f^eq. Policy of insurance, assignee of several interests in same, may sue in own name, 36, ^^. uX)on life of A. made by X., and paj-able to C, A. cannot avoid on ground of fraud 37, ^. B. obtains from X., loss, if any, payable to A., either A. or B. may sue, 37, ^^. when mortgagor of property need not be party to suit on for loss, 24, '^^. Position, of party to record, when may be changed, G, ^. of party, p-rson having common interest refusing to become plaintiff may be made defendant, 6, *, et seq. of party on record, person defendant properly a plaintiff, refusal to be made so inferred, 6, ^ of party, upon the record, informality in, effect, 6, ^ et r.eq. of party upon record, objection properly raised by de- murrer, G, ^. of party upon record in partition, 6, ^^, et seq. Possession, of property will be attached to proper capacity of person to hold in, 4, 'o, of property, person in, may sue for damage to, 38, ^ et seq. necessary to uphold interpleader, 113, ". X)erson holding land may maintain action for injury to, though without title, 7i), i. of mining claim, who may intervene in suit for, 110, 2". of mortgaged premises, bill to recover, executor of mort- gagor proper party, 22, i". mortgagee of personal property, when mav sue for damage to his interest, 36, =<". of property, person in may sue for injury to, 87, ^ et seq. Post mortem, examination, when county liable to phvsician fur. 42. i«. J I ~ Power, of attorney executed by several legatees, each may sue separately for his share of legacies collected, 78, ^•*. ' of city, Avhen exercised in public, when in private capacity, rxDEx. 487 Power — Continued. of corporation, bill to restrain from doing business in excess of, p;\rty,^ 28, ^". suit against corporation to recover stock transferred under forged, necessary party, 25, '^. of partner after dissolution of firm, 88, ", el seq. Practice, in making new pavty, lO-i, ^ in making new party, regulated by court unless, 104, 2. suit of infant, etc., name of guardian added to that of, con- sidered better, 3. ■*. Premature, action against ad'-uinistrator, how taken advantage of. 75. Priest, when may sue as corporation, sole. 90, *. Principal and agent, suits by generally, 84, suit^ against. 85. Principal, generally liable for acts of agent done in course of employment, 85. ^, et seq. when bound bv acts of agent in excess of his authoritv, 85, ». agent for collection takes property instead of money in payment may be treated as trustee. 85. -i. when may sue upon contracts of agent, 84, '. undisclosed may sue upon contract of agent, 84. -^ undisclosed, when liable upon contract of agent in own name. 85, ^^ agent sells goods of, as his own who may sue. 84. ^', et seq. may sue for deceit in sale of goods to agent. 84. '"•'. foreign, discharge in insolvency when no defense to action by, 84, \ several employing same agent, liable for acts of jointly or severally, 85, ^. cannot sue agent for nionev collected until after demand, 85, 2^. nionev overpaid to agent, efifect of bis pavment over to, 85, 1*, 15. note payable to •'• A. B., agent." agent may sue, 84. •>. ". may sue on note made for him, payable to his agent and unnegotiable, 84, ', et seq. when liable to agent for collection, for amount paid on forged note, 85, '''^. when factor sells goods of, with own who may sue for, 84. 23. may recover purchase price of goods sold by agent. 84, ^. when may recover ])rice, goods sold by agent. 84. '^'. when may collect whole of purcliase price of goods, from buyer though part paid to agent, 85, '^. when may treat payment of price of goods, to agtut as a loan to'him, 85, i^. Principal — Contimied. when liable to servant for injuries received in course of employment, ^ 85, *, et seg. when agent sues in own name as agent, should disclose name of, 8i. ^. action commenced by agent, substitution of, proper, lOG, '^K undisclosed action brought by either principal or agent, 3, ^'. when bound by written instrument made by agent in own name, 85, ^". and surety, suits by and against, 8G. on offic-iaf bond, surety liable for what acts of, 8G. s^, ct seg. debt of, paid by sui-eties, when latter may bring joint action, when may suo alone, 86, S et seg. insolvency of, right of suretv to contribution depends upon, 86. 3, etseg. must have notice of application of surety to have judgment assigned, 86. i". when need not be joined with suretj' in suit against, 86. ". upon insolvency of. when surety may apply to subject laid to payment of debt of, 86, ' . ' ' lands of surety, bill to subject to payment of debts of, necessary parties. 26. ^'^. Privies, bound by legal proceedings, 7, K as bound by legal pi'oceedings, extent, 7, ^. as bound by lei,al proceedings, who includcel in term. 7. ^. Probate court.^ when proceedings in to sell lands of infant will not bind him, 60. ». Probate judge, av hen action on bond of executor brought in, 49, «. action in name of upon bond although office abolished. 32. '^^. efltct of resignation of, upon action in name of, upon office bond, 40, ^, et seg. Proceeding, to inquire into a public charity by the attorney- general. relator in, when is not a party to, 1, ^'. legal, who are bound by, 7, *. by rule or motion to obtain restitution of money obtained under juelgment. wliat demands noticed, 8, ^"^Z legal, see Legal Proceedings. probate, on estate of living person void, 7, <>. when widow and next of kin are parties to. 1. '^''. stay of, does not extend time to make motion to revive action, 105, '■^o. Process, service upon foreign corporation, 91, •*. elefendant until severed with, not in court, 1, ''\ et seg. service of, upon defendant wlien brought within jurisdic- diction by force or fraud, bad, 11, *. after service of defendint, must ap])ear or quit the field, 14. ^^. LL i Process — Contimied. service ot upon infant defendant, § 11, ', ft seq. until infant defendant served with, guardian ad Utevi cannot be appt)iuted for, 5S, ^. infant defendant may not waive service of, 58. =, ft spq. service of iipon person, does not make liini party, 1, ^. 10-1. *. status of sheritf as party tj suit to restrain execution of, 51. •^'. color of, deputy sheriff directly liable for trespass under, 51, 1'. want of service, motion to dismiss for, special app -arance, 14. 1^ no summons issued within time allowed by law, special appearance, 14, i*. service of, objections to. special appearance, 14. '^. service of. appearance of defendant equivalent to, IG, ^ appearance of defeiidant waives defects in, IG, '-. service of waived by appearance of defendant after default, 16, ^•^ et seq. appearance by attorney for "defendants" part not served with, effect. 15. i^, et seq. Prohibition, right of intervention in, 109, ^*. Profits, person to receive share of in payment for services may sue for account of, 31, ''. Propsr party, who is, 18, i". when p-rson charged Mith fraud in obtaining a bill is, to suit to set aside, 22, '^. heirs are to bill for account of personal assets, when, 22, ^^. heir of deceased partner, to bill for account of partnership, 24, H. to suit for injunction, 28. '^^, et seq. who is to suit by insurance company to set aside release from policy holder to wrong-doer, 24, ^'. insane person is, in suits relating to his lands. 21, •', el aeq. to suit by assignee of insolvent to recover propiTty of, 24. -''. to suit for conveyance of lands by person claiming title under tirm, 25, -, et seq. ■who are to suit by lienholder. 7, ^^, et seq. to suit to enforce mechanic's lien, 27, '■*. et seq. mortiragee of land, not to suit of plaintifl", for monev only, 24, •*'. to suit to foreclose mortgage, 27, "*, et seq. when administrator of heir of deceased partner to declare trust, 25, «. to money, rule against sheriff for proceeds of partnership property, paid into court, 25. ". when officer is not, to bill for injunction, 103. -. to bill by surety to enforce contribution, 21, '^, et seq. 190 INDEX. Proper T^rty — Continued. ■\Yiiiit of to equitable action not jurisdictional defect, ^ 7, ^=. to equitable action, absence of, not jurisdictional defect, 7, k to suit to enforce vendor's lien upon land, 27, '". suits relating to separate pioperty of "svife, husband is, 21, ^'^. Property, iaminvable rights of alien to, 2'J, ^. lost, when is, who entitled to custody, 87, i**, et seq. statute provides nietliod of leacliing must be strictly fol- lowed, 12, «. movables, in what capacity person sued for, 87, '^. of non-resident. State may subject to satisfaction of claims of its citizens, 12, 2. of non-resident, jurisdiction over acquired by seizure, 12, ^. person in possession of, may sue for damage to, 87, ^, et seq. person holding has several capacities, possession, 4, ^". sheriff may unite with parties to delivery bond in suit in equity fi>r the pi-otection of the, 51, •*. Prosecutsd, in name of real partv in interest, meaning of term. 31,^ Public, wlicn must bring action to obtain redress against cor- poration. 91, ^^. agent, effect of contract of, 85, ^^, et seq. money, when tax paver niav sue for benefit of self and all others, 30, «. nuisance, damage to private person, Avhen may sue, CO, ^^. nuisance, remedy, indictment, SO, i", et seq. ofiicers. See OrViCEns Public. right, mandamus, Avho relator, 30, ^. use, land taken for, administrator may sue for damages, 73. use, bill to restrain taking lands for, necessary parties, 28, ^'J. Publication, of copy of atlas sold by one member of firm, necessary parties, 28, ^'. of notice of bankruptcy, effect on pavment of debt, 53, ^-K death of defend.mt before, completed', cftlct, 12, '. jurisdiction over unknuwn heirs acquired bv, 13, '. infant may be served by, 13, •*. jurisdictiem of court not acquired bv, 13, «. copy sent by mail, suflficiencv of, 13,' ^ et seq. usual manner of warning nc)n-resielent parties, 12, ■*. of summons, non-resielent defendants served bv, extent of juriseliction of court over, 13, 1. not sufficient service of summons on non-resielent in per- sonal action, 13, ^. of summons, waiver of, when amounts to appearance, 14, 5. Purchase price, agent may not accept before elue, principal not liable, 85, ^K ' 1 i of goods sold by factor, when latter may sue, 84, =3, et seg. IKDEX. 491 Purcha83 Price — Continued. of lauds of wife, when debt of husband mav be deducted from, ? 66, ■*^. lan'l sold' by substituted agent, who sue for price, 8-1. ^K of 1 m 1, when suretv may sue to subject the laud to jiav- ment of, 8G, ^. " of land. See Vendor's Liex. of land, suit to enforce litn for, necessiry parties, 27, '^. of land, joint note, when co-makers may sue for reci-sion of sale, 96, '•^. when one tenant may recover, for standing grass sold from common property,' 82, '^^. Purchaser, of property of bankrupt, when may sue for in own name, 54. ^, el ficq. of execution sale, suit bv, to dispossess husband of lands of wife, party, 26, '^'^. at execution sale, when may sue for rent of real premises, 80, •^". of lands from executor, rights of, when evicted by heir, 73. of lauds of debtor, when necessary party to suit "to subject to ])aynient of debts of, 26, '*^. of mo; tgaged premises, when need not be party to fore- closure suit, 7, ^^. pendentt:' Ute, when may be party to foreclosure, 5, **. when may intervene in suit for partition, 110, ^^ of land from vendee, parties to suit to enforce vendor's lien. 27, «. of vendee, vendor's lien, suit to enforce against, necessai7 parties. 27, *. Quasi party, when relator becomes, 1, ^7. when sureties on bond become, 1, '^^. Quiet title, when equity will not entertain bill to, 6G, "^'K in ejectment, intervention not proper to. 110. ^^ when husband and wife may unite in bill to, 66, ^i. to lands necessary party to' suit to. 26, '^^, et seq. to land-, when cestui que tniM need not be party. 26, ^'-. to lauds, when executor need not l)e party to suit to, 26, ^^. to lands, when holder of unrecorded deed not made partv, 26, «^ plaintiff must recover if at all upon allegations of his complaint, 9, ^s. stranger cannot become party to suit to, 5, ^*, tenants in common may join'^in suit to, 82, ^. when wife may not intervene, 110, ^^. Quo warranto, proper method to test validitv of corporation, 91, 3». no right of intervention, 109. '•*. against single officer of city latter not party, 44, '^. 492 IKL>£X. Quo Warranto — Cont'imied. when brought in name of State, § 39, ". Railroad Co., when liable for misleading announcements, 91, ^». injunction to prevent payment of proceeds of sale of land to, 28, 30. Eeal action. iSee Actions Real ; Land. deatli of defendant, abated, new cause of springs up, 105, *. tret^puss qiuire clausmn fregit, death of one of several defendants, effect, 105, &. Real party, who is, 2, ^ wiien bankrupt may not be to action, 53, ^ suit by contractor to use of city on special tax bill for street improvements, latter is not the, 2, ^'. Real party in interest, proper plaintiff in chancery, 2, ">. WHO is under Code, 31, ^, et seq. when suit in name of corporation amended by substituting names of stockholders as the, 90, ^-. when maj' sue on bond, 36, ', et seq. when may sue upon an unnegotiable chose, 34, ". holder of contract under seal in form of note, mav sue as, 35, 28, et seq. either in, trustee of express trust may sue contract for ben- etit of third person, 37, ■*. of demand, 35, ^'^, et seq. holder of note and guaranty transferred by verbal assign- ment is, may sue in own name, 35, ^, et seq. when plaintiff' is, 31, i-, et seq. action " prosecuted" in name of, meaning of term, 31, '^. as general rule must maintain suit, 31, ■^. Real plaintiff, at law need not be named in the record, 2, 3. real party in interest is in chancery, 2, ^. relator on guardians bond is, 2, ^'^/ Receiver, appointment of generally, 52, ^ et seq. breacii of bond of, failure to pay over money borrowed before appointment is, 52, ^o. foreign, when may sue, 52, ^^. liability for goods entrusted to his care, 52, ^^ et seq. riglit to intervene, 110, ">. when may maintain suit to set aside sale of property of judgment debtor, 52, ^^, et .'ieq. when represents all members of organization, mav sue on for debt due all, 52, ^'^. appointment pending suit, action continued " for his her efit"52, ', eiseq. for defendant in pc nding suit must be made party bcfo; can he heard, 52, ^j, d seq. death of pending suit, successor substituted, 52, ^^. jy-DEX, 493 Receiver — Continued. when remedy against must be by petition in original action, § 52, »i. ' clients and profits may not sue to set aside fraudulent eonveyauce, 52, i'. may sue' in whose name, 52, ^. when may be sued directly, 52, '■^'^. cannot be' sued except by leave, 52, ^o, et ?eg. extent of rule as to no suit against without leave, 52, ^J. order granting right to sue, power of court over, 52. '^'^. ordt-r granting right to sue maybe revoked, 52, --, et seq. actioa for trover, when may be brought in name of. 52, ^'^. trover, when action for may not be brought in name of, 52, ». title of to tlie trust property dates from bond, 52, ^, may not sue to enforce resulting trust of judgment debtor, 52, J2. administrator wasting assets, who may apply for appoint- ment of, 75. appointment of under national bank act, does not dissolve corporation, 91, ^^. of bank, properly made party defendant in suit to recover special deposits, 52, '^'^. liability as common carriers, 52, -'. authority of to sue for corporation, when must appear, 90, ^i. will not be vested with management of general business of corporation, 52, ^, et seq. corporation in liquidation, when appointed, 91, '^^. when may sue to set aside judgment against corporation, collusion of officers, 52, ^*'. of corporation, action by to enforce payment for stock, defense, 93, i^. for corporation, when not liable to trustee process, 91, ^*. after appointment of, in creditor's suit he is proper person to enforce judgment, 8. '^^. when partner may file bill for appointment of, 88, ^i. of partnership property, when must sue in firm name, 88, ^'. co-partner insolvent, g'round for appointment of, in suit by partner against for settlement, 55, ^■^. Ptscord, of court, imports absolute verity, 10. ^^. of coiirt, partv present or absent, onlv as is shown bv, 11,-. of court, in absence of proof of jurisdiction over parties, presumption, 10, ^'^, et .seg. of court, when presumption as to jurisdiction from, ceases, 10, ^-K appointment of guardian ad litem for infant should appeal of, 58, 1^ 60, 6. Parties — 42 494 INDEX. Hecord — Continued. liosition upon, immaterial of parties to suit for partition, i 28, ". must show that State U entitled to prosecute or action fails, 39, «. Kecorier, county, -when not necessary party to suit to cure misdescription in deed, 2G, '■^^. Eecovery, must be had upon status of parties at commencement of action, 9, ^ amount of in action of ejectment, 9, ^. in ejectment, if at all, must be on title of plaintiff, 9, ^^. in action of ejectment, amount of, 80, ^^. amount of in action by one partner, co-partner made de- fendant, 83, 1". Redeem, avIio may nut, mortgaged premises, 5, ^^. Eedeem, till to, necessary parties, 28, ^, et seq. by assignee of mortgagee, necessary parties, 28, ^". by last assignee of mortgage when only necessary defend- ant, 28, *. mortgage, when trustee may sue alone, 32, i**. mortgagees may be parties to, 28, ^i. by debtor against assignee of note, to recover pledged property, party, 28, '^, suit bv widow entitled to dower, proper parties defend- ant, 28, 5. Hedress, for breach of duty imposed by statute, 9, ^". infants aggrieved by decree, how may proceed to obtain, 1,^'^. person may have in equity wiien otherwise he would be obliged to resort to foreign court, 9, ^^. Reform, contract, suit to on ground of mistake, 26, '^^, et seq. deed of trust, when wife need not be party to suit, 69, ^^. Relf-tion, of principal and surety, in suit against latter when not entitled to have established, 86, ^i, et seq. as between near, law will not imply contract to pay for board and lodgings, 83, 3. Relator, in proceeding by attorney-general to inquire into public charity, is not a party, 1, ^^ suit to enforce execution of charity, who should be, 48, '. on guardian's bond, stands as real plaintiff, 2, ^". infant by next friend, suit by, upon bond of former guard- ian proper, 57, 21. mandamus to enforce act of legislature or common law, 30, 1. death of, in suit on official Lond causes abatement, 39, ^-. in suit upon official bond, who must be, 36, °. in suit on official bond, is real party, 39, ^S et seq. when becomes quasi party, 1, 2-. in q)io xmrranto to test validity of election, is partv ag- grieved, 39, «. ES-DEX. 495 Release, suit to have, set aside, proper part}', ^ 2i, ^'. of one joint -wrong-doer, eft'tct. 98, ». Eelief, Code practice, any applicable to facts gi-anted, 9, •*. on ground of mistake to obtain, must be mutual, 9, -". Rem, prriceeding in, bind every one, 7, ^ Remainder man, when may sue to remove cloud from title, 79, 11, 1-'. Remedy. See Statttory Eejeedt. of surety for contribution, 8G, ^. of administrator of defendant for failure of plaintiff to make party, 106, -i. ■when each obligee has distinct and separate, on attachment bond. 86, ^". to impugn validity- of corporation, what is, 91, ^". by suit of county derived from statute, 41, ^. Avhen intervention is not proper. 109, ''. of creditors, when assignee refuses to prosecute suit in favor of estate, 53, **, et seq. statute imposes duty and provides particular, onlv redress, 9. 1". law will raise when, 9, i*^. jperson attempts to pursue two at same time for same wrong, mubt elect, 9, ^. name of State, attorney-general and county attorney may use to pursue any remedy, 18, ^, (t seq. by action, when person has' none against State, 40, ", ot seq. against survivor, must be exhausted before proceeding against estate, 9, *^. Removal of cause to federal court, plaintiff, when must re- plead, 9. -\ Rent, when administrator may sue for, 73. of lands, when heir may s\ie administrator for, 78, -". assignee of, right to sue fur, 36, -", et seq. and profits, receiver of, no power to sue to set aside fraud- ulent conveyance, 52, i'. of lands of wife, who may sue for, 66, ^i, p( seq. and profits, suit by widow to recover dower interests in, ))arties, 26, •*". collateral security given for payment of, landlord may sue for injury to his rights in, 79^ i^. express contract to pay, not necessari", 80, i^. of laud, note given tor. when assignee may recover from pui-chaser of crop, 35, ^'-, 79, J^. part of crop, tenant may maintain action for trespass upon, 79, 3-^ premises leased for term of years for gross amount action indivisible. 79. i^. on death of landlord, who entitled to, 79, i^. 496 rxDEX Reat — Conimxic^l. when would be climinished by sublease of jjremises admin- istrator may enjoin, g 73. asiiguee of insolvent lessee party to suit to set aside lease for non-payment of, 55, ^^. Avhen purchaser at execution sale may sue for, 80, ^o, tenant liable for, although he never held possession of demised premi-es, 79, ^^. when tenant and his surety may be jointly sued for, 80, i^. when tenants in common may maintain joint action to re- cover, 82, ^^ et seq. joint action for, when will not lie against heirs of deceased joint tenant, 82, ^t*. when joint tenant cannot recover from a co-tenant, 82, '-^K right of action for is in surviving tenant, 82, '^'^. Repair, failure to, when landlord liable to tenant for, 80, -, ^. wlien joint tenant cannot recover for, from co-tenant, 82. -^. when tenant liable for non-repair of leased premises, 83, ^, ^. Replea:!, when plaintiff Avill be required to, on removal of cause to federal court, 9, ^^. Replevin, when mortgagee of personal property may maintain, when joint action will lie against officer and creditor for goods attached, 98, i«, et seq. against officer, substitution of defendants in action, lOG, 2U. death of a party to action, effect, 107, ^', et seq. when partner may maintain against co-partner, 88, ^". when sureties on bond of defendant, may intervene in, 86, '^'^. forthcoming bond, bankrupt.'y of principal no defense to surety in action upon, 8J, ^^^ 22_ when wife cannot maintain against attaching creditors of husband, 65, •'. wife cannot maintain against hus^band, 67, <^. bond, when shei-iff may sue upon, 51, ^. bond, one of two obligees on becomes insolvent, suit on by solvent obligee alone, 55, ■*. Rsstitution of money or propertv obtained under a judgment, wiiat demands noticed, 8, ^«. Revised statutes, Indian may be sued under, 29, -\ is not new suit, 71, i'->. R3vival of action, does not necessarilv carrv Avith it whole of I)rior riglit of action, 107, ^". when, in name of co-defendant as administrator of deceased plaiutiflt; 71, ^0. Revivor, when none against foreign administrator, 105, ^^ Avho may maintain, 105, '^-K after appeal perfected one joint appellant dies, either party may have, 103, \ INDEX, 497 Kevivor — Continued. death of sole defendant, when there will be no, § 105, i*. on death of sole defendant, in whose name, IC'o, ^-. defendant having beneficial interest may tile bill of, for purpose of appeal, 105, ^i. djath of defendant, no administrator, against heirs, 105, ^''. death of defendant in action to condemn lands, in name of heir or devisee, 105, ^'^. death of defendant in proceeding to foreclose mechanic's lien, no:.e, 107, ^^^ of suit in equity after abatement is not new suic, 105, ". of judgment, eifjct upon lien, 105, '-. suit in equity abated by marriage of /erne sole j)laintiff can- not proceed without bill of, 107, ^-. on death of sole plaintiff, who may, 105, 2:2, death of plaiutifl' pending suit, when must be, 71, ^^\ bill of, wlien executor of deceased complainant ibot ncces- saiy party to, 22, =*. plaintiff dies pending action for specific performance, who should bring, 78, ^e. possessory action against whom revived, 76. stay of proceedings, does not extend time for making motion for, 105, -^. of suit, upon death of wife in action bv husband and, ui^cn dJjt'of, 63, i«. Eights, who vindicate in an action, 8. ^. of alien enemy as defendant, 29, 1^. of assignee in action by assignor for upon non- negotiable chose, 34, 3. person beneficially interested in contract in equity en- forces in own name, 31, *^. intervenor must show what, 110, ^. intervention, when proper, 110, -, of parties, Btate constitution, federal courts determination of, under State law, 8, **. may be pursued in any court having jurisdiction. 8. '. of person cannot be concluded before he has had his day in court, 7, '. of party, foreign land affecting, how enforced, 0, '^■K of action created by statute unknown to common l.-.v.-, time to sue, jurisdiction. 8. '-^i, et scq. of a party, must be vindicated in liis own name, 3, -'. exception to rule that will not be determined unkss partv, 28, ^\ not lost by being made party by supplemental pleading. 8, -o. of defendants, not determined af :er, when no plaintiff, 9, ''•'. private, who should enforce, £0. -, it .-^rq. public mandamus to enforce, relator, SO, K 498 IKDEX. Kiglits — Continued. of party, recovery must be ■upon as they existed at com- mencement of the action, ^ 'J, ^ of party, will not be settled, when indispensable party absem, 7, **. to sue the State, matter of favor to be construed strictlv, 40, «. ultimate, of parties defendant, when will not be settled in suit, 9, -i". Rioters, town may sue for destruction of property, 45, ^-. Eoad district, wlien may not be party as a corporation, 20, ". Rule, as to inquiry into abuse of "beligerent power, inquiry into, 29, ^«, for making parties to suit in equity, rule of convenience, exceptions, 19, ^, d seq. as to making insane person party, same in law and eqtlit}', 21, «. as to who is the real party in interest, 31, ^, el seq. Salary, palilic officer, kept out of office by intruder, may re- cover, 47, ^^. Sale, of goods by agent as his own, who may sue, price, 84, '^'', false represent ations made in sale to agent, principal may sue for, 84, i«. of whole interest in chattel by tenant, estate, reversioner may recover for, 38, -. of lands fV)r delinquent tax, what sufficient to support action for fees, 50, ^. Satisfaction, payment of, judgment to nominal party with notk-e is not, 2, i^. can be but one, in action for tort, 98, 3. School district, suit against should be in its name, 4G, ^^ et seq. not liable for defective condition of school-house or Vard, 40, ^-^ et seq. injunction io prevent payment of interest on bond by tax, necessary party, 28, ^i/ tax, when 'illegally collected, remedy, 46, 22, et seq consolidated, liability to teacher for'aervices, 46, ^i. School-house, city not liable for unsafe condition of, 44, i». scliool district not liable for defective condition of, 4^1 25. Scaool lands, injunction to restrain collection of tax on comty, prop r party, 28, 28. School money, all ordinary suits for brought in name of coOity, 41,5. suit for recovery of, arising on bond of co-treasurer, brought in name of State, 41, *, et seq. School tax, when one tax payer mav not sue for self and all others, etc., to restrain collection of. 80. «. State of Nevada proj^erly sues for (statute), 39, ^^. i>-DEX. 499 School teacher, liability of consolidated school district for pay of. \ -iG, -I. Scire facias, none after expiration of time limited by statute in relation to abatement of actions, 105, ^^ ei scq. against heirs, partv dies after appeal, no administrator, lOS. ». judgment npon, 105, ^i. •uhen bill of revivor not preferable to on death of partv, 1C5. 1**. Script, State auditor may enjoin payment of taxes in, 50, '. Security, plaintiff in foreclosure may abandon and take judg- ment on note, 8, -•^. Seduction, wlien action lies for of child, 83, ^, ot seq. what is no defense to action for, 83, ', et seq. death of plaintiff, effect, 88, ^-. theory of action for, 83, ^". et aeq. Seller, nt'licpTor, when several not jointly liable to same suit, 98. ^. Separate property of wife, she may sue in relation thereto alune, (313, 1. or may unite with husband, 66. ^. liable 'for anti-nuptial debts of. 63, ". when she may maintain ejectment for, 66, ^*^. ejectment for, she sued alone, 69, ^-. husband proper party in suits relating to, 21, ^'^. husband proper defendant, 24, ^'-. et seq, suit for, husband defendant death of, when heirs of made p:u-tios, 21, ^». bill to restrain sale of, for debts of husband, necessary parties, 28, -i*^. when sought to be subjected to payment of demand, hus- band proper defendant, 69, ". where distributive share in estate of decedent is, she may sue alone, 66, ■•^. fraudulently loaned by husband she may recover. 65, •*". husband loses at gaming, he may sue to recover back, 66, s. when husband and wife may sue jointly for injury to pos- session of land, 66, -'«, either husband and wife, or latter alone, may sue for price of land, 66, ^s. when both husband and liable for services upon. C8. ^. interest in mortgaged premises, she made defendant in foi'eclosure, 69, i*, et seq. she is necessarv partv to suit to subject to pavment for sup- plies. 21, 15. ' ' damages for tort, when she may sue alone. 65, '^^. when trustee of must be party to suit relating to, 21, ^'. 500 INDEX. Servant, enticing from employment, master Las action for, •when principal liable to for injuries received in course of employment, 85, ■*, et seq. when master not liable jointly with for acts of, 83, 21. Avhen master liable to for negligence, 83, ^j, '^'■^. liable to master for negligence, 83, 1*. ■when action lies for seduction of minor child, 83, », et seq. extent of recovery for services, 83, 2- , et seq. tortious acts of, who liable for, 83, '^^, et seq. Ssrvices, action for, against administrator ^^eurfenie lite, 75. uocessarv partv, bill to restrain city from paying fire mar- shal for, 28, "32. when master may sue for, 83, i^. when one part owner may maintain assumpsit for, against co-owner, 81, ^j. person ta receive portion of profits as payment for, may sue for accounting, 87, i'. money paid to public officer for, when recovered back, 47, ^". liability of consolidated school district for, 4'J, -'. performed upon separate property of wife, when both hus- band and wife liable, G8, ^a. extent of recovery of, by servant, 88, '^'', et seq. Set-oflf, wlien equity will permit against insolvent joint judg- ment creditor, 55, ». Settlemsnt. of estate of decedent, necessary parties to bill for, 22, ■^^. of admmistrator, when sureties of proper parties to suit to set aside, 86, 2<. Several obligations, secured by mortgage to several persons, how enforced, 82, ^', et seq. Severance, of cause of action upon contract, 94, ''. of joint demand by debtor, separate actions, 31, ^'^. demand against town which subsequently becomes two towns, separate suits against each, 46, '. r.ewers, city liable for negligent construction of sewers, 44, ^". city not liable for failure to provide sufticient, 44, ». ijheep, bailee may sue for possession of, 87, ^^ injury to bailee may sue for, 87, ^^ 5ii3ri2 liability for failure to levy attachment, 51, ^«, et seq. when assignee of bankrupt 'may not proceed against to recover attached pvoixn'ty, 53, J^. may sue upon bonds taken^in official capacity, 51, 1, et seq. may sue upon bail bond, 51, 2. may unite in suit in equity with parties to delivery bond for protection of property, 51, =^, when no action against for failure to take forthcoming bond in trover, 51, i». DTDEX. 501 Snerifc — Contlmiea. ^viieu may sue upon replevin bond, v 51, ^^ unnegotiaLle demand attached by," may not sue upon in own name, 51, ^. action against for default, does not survive, 76. (Ohio), when no action against for imprisoning debtor with felons, 51, ^^. action against for default of deputy, when survives, 7G. action against for tortious acts of deputy,_description of, 51, la. and deputy cannot be jointly sued for a tort of the deputy alone, 51,^^. deputy, directly liable for trespass committed under cclor of process, 51, i-. execution sale, action for price of goods brought in name of, 51, ^ liable for execution sale of property of stranger to writ, individually, not on bond, 51, ^i. property sold' under several executions may compel inter- pleader, 51, ''. action against for escape, insecure jail no defense, 51, i". when not necessary party to bill to enjoin judgment, 28, •*-. action for misfeasance oi' does not survive, 51, '^K may sue for money overpaid to judgment creditor, 51, ^. failure to pay over money collected, no action before demand, 51,'--. when demand for money collected by deputy, is equivalent to demand of, 51, ~^. funds of firm paid into court, proper parties to money rule against, to recover, 25, ii. and predecessor, when no joint action against, 51, -". levy upon property claimed by third person, may not compc 1 interpleader, 51 , *^. status of, action to restrain execution of process, 51, -^ mav recover for tort, gooels attacheel taken from possetsion o'f, 51, s. for trespass de honis of deputy, after juelgment against lat- ter, no action against former, 51, ^'. Slander, no joint action for, S5. ^-. marriage of female plaintiff pcneling action for, husbanel should be made party, 6o, i''. to wife, distinction between worJs actionable, per se, and those not, G5, -^ of wife, Avhen husbanel may sue alone, Co, ^^. to wife, when she may sue' for, 65, '**. to Inisband and wife, two actienis, 65, -". Sidewalk, bill to restrain collection of assessment for neces- sary parties, 28, -^. 502 INDEX. Signed, Inll not, general appearance is waiver of objection tliat, § 10, «. Sole corporation. See Corpoeatiox Sole, Sovereign, foreign. See Fokeigx Soveeeigx. may sue, in either State or federal courts, 29, i. Sovereign authority, mandamus should be maintained in name of, 30, ^. Sovereignty, defense of, when cannot be set up in land suit, 40, ♦'. Special property, in subject-matter of agency, Avhen agent has, he may sue, 8i, -^ et seq. Specific performance, of contract, when jjerson cannot enforce, 9, *». of contract for sale of lands, by administrator of vendor, necessary parties, 26, ^", et seq. of contract for sale of lauds against heirs of vendor, neces- sary parties, 26, ^^, et seq. of contract to convey lands of wife, when will not be en- forced, 69, ^'K of contract for sale of lands, necessary parties to suit, 26, *>. of verbal assignment of contract to convey lands, 36, i'. suit by assignee of part interest in bond, when no bar to suit by assignee (same person) of whole interest, 36. '^. plaintiff dies pending action for, who shonld revive, 78, -*». Standing in court, defendant has, how long, 8, ^*. State, alien resident of is entitled to benefit of its insolvent laws, 55, 1. not bound by appearance and plea of officer of, 40, ^*. corporation is citizen of creating, 90, ^. courts, foreign sovereign may sue either in federal or, 29, ^ court, contract both parties 'to aliens, may be enforced in, 29, ]a._ court, alien sued in, mav remove action to federal court, 29, ■^^. Avhen federal court will not enjoin officer from canceling license of foreign corporation to do business in, 47, i-*. cannot pass a law making general government suable in its courts, 40, 1, et seq. generally sues in own name, 39, ». name of, when will not be permitted to be used in an action, 39, ^. name of, attorney-general may use to pursue any remedy, name of, attorney-genei-al cannot use, to pursue misappro- priated funds of countv, 48. •*. bond in name of, action usuallv in its name, but, 39, ^3. suit in name of, upon official bond, 39, '", et seq. name of, action in nature of quo icaiTanto, to test validity of election, 39, ». IM)EX. 503 state — Cont'mued. of Nevada, suit for school taxes, ^ 39, J^. may maintaiu action against officer, •who refuses to pay over fees CDllected, 39, ^^. proceeding in federal court against executive officers of, in effect against, 40, i3, when is nominal party in suit on official bond, 39, ^i. not proper piarty to suit for injunction, 28, -''. when either, or private person may sue for penalty imposed by statute for breach of duty, 38, *. power over property of non-residents, 12, -. when proceedings of will fail, 39, *^, may sue in own courts, 39. ^, et ^eq. civil action prosecuted by in what manner, 39, -. sister, how may sue, 39, '*. cannot be sued' without its own consent, 40, ", et seq. must be sued in the courts, and in the manner provided by law, when no remedy. 40, ^^, et seq. cannot be sued indirectly, by means of proceedings against its agents, etc., 40, ^'^. right to sue the, is matter of favor to be construed strictlv, 40, ^ university, not a corporation, cannot be sued, 40, ^^. Statute, in relation to abatement of actions, is in nature of special statute of limitations, 105, ^^, et seq. to prevent abatement of actions, meaning of words, "after issue joined," 105, ^. to prevent abatement of actions, construction of (Md.), 107. a-, construction of, service of process upon foreign corpora- tion, 91, '. comptroller of currency cannot submit rights of U. S. to litigation without. 40, -. contract under seal, not negotiable unless made so by, 35, -', et seq. joint and several contract, who made defendants under, 97, 1^, et seq. when corporation may exist under either of two, presump- tion as to name. 90.'**. county derives remedy by suit from, 41, ^. county must be sued in manner provided by, 42, ^ who joint defendants within the meaning of, 97. ^'-. misjoinder of defendant's action upon contract, plaintiff may amend. 103, ^. imposes duty but no remedy, law will raise one, 9. i". imposes duty and provides particular remedy, 9, ^^'. unless authorized by. no action lies against city for neglect to perform public duty, 44, ^, et seq. 504 INDEX. Statute — Continued. of Maine, all actions for trespass on case, survive, ^5 107, ^'^. in action upon note, wlio made defendants, 97, '^ tt t^eq. meaning of absentee, 29, 21. meaning of term "party." 1, ^. providing method for reacliing property must be strictly followed, 12, 6. as to service of process on infant defendant strictlv followed, 58, «. survival of actions for torts, construed strictly, 107, '^^. rule as to parties to suit upon bond of countv treasurer (Nebraska), 50, '. in absence of, parish treasurer cannot represent the corpo- ration in court, 50, *». town must sue in manner provided by, 44, ^ et seg. town under, may sue for price of right to fish in its streams, 45, ^^. town may sue rioters under, for destruction of loropertv, 45, 1^. independent of, town not liable for non-repair of highways and bridges, 46, ^, ei seq. relating to power ol wife to sue, construed how, 68, ^^. wife may recover for injuries to person or character as though sole, 65, '". separate business of wife, husband not liable for her debts, 68, ^■^. Statutory, penalty. See Penalty. assessment, action lies against town upon judgment even, 46, a. penalty for usury, separate action upon contract. 95, ^. provision, name in which county shall be sued must be strictly followed. 42, *. proceedings for sale of lands of wife she should be made defendant, 69, •'. remedy of surety, contribution for amount paid cumu- lative, 86. a. rig' it of action, extent of limitation of time to sue, 8, 21, Stipulation, of attorney not sufficient to bring infant into court, 15, '^. eftect as to time when person made party, 7, '^o, tort, action that dies with person may survive bv, lOS, ^. Stock, money advanced for, must be demanded of corporation before suit to recover back, 93, &. of corporation, suit by stockholder to recover, necessary party, 25, ^o. corporation not liable to stranger for conversion of, 93, •». suit to enforce payment for, defense, 93, '=*. UTDElf. 505 Stock — Co'ntinned. subscription to capital of corporation, liabilitv of stock- holder, ^ 93. ^K trespassing. See Cattle. trespassing, wlien jo;nt action for injury by, proper, 98, ^. Stockholders, suits by and against, 93. of eur]^oration proper persons to direct filing of petition to have latter declared bankrupt, 54, *. right to inspect books of corporation, how enforced, 93, ^. person to sue for conversion of stock must be a, 93, ■*. liability of, bill to enforce for debts of corporation, neces- sary parties, 25, "■'", et seq. suit by, against directors of coi-poration for waste, etc., necessary parties, 25, ^'^ may be made defendants to creditor's bill against corpora- tion, 93, '1. cannot defend action against corporation. 91, ^. when may be permitted to defend suit against directors of corporation. 93, '". when mav defend foreclosure suit against defunct corpora- tion, 93, «. necessary parties to suit to dissolve and wind up corpora- tion, 25.''-''. of corporation single (N. Y.), may sue to dissolve, 55, ^. Avhen action to i-ecover share of dividends must be against corporation, 91, ^*. suit for self and all others, new parties, amendment of pleadings, 3, -'. numerous, Avhen need not be parties, 25, '^. when a single one may restrain coi-porate acts, 93, ^. may enforce publication of "statement and report" of corporation, 93, **. suit by, against corporation to recover shares of stock, necessary party, 25, '^^. allowed to"l)e substituted as party for corporation in pend- ing suit, 106, '3. wlien pending suit by corporation may be amended by sub- stituting, as partie's plaintiff, 90, '-.' when mav sue agent ot corporation for wasting propertv, 93, >, etxeq. when may n.ot compel interpleader, 114, ■. Stranger, administrator not liable- to, lor money collected on judgment in name of decedent. 75. bailee of shtep, may sue in n T)levin for possession, 87, ^'. to contract, wlien no relief for fraud of, 9. '^. when may i ot sue upon contract under seal made for his benefit . 37 ', rl serf. cannot sue corporation for conversion of stock, 93, *. Parties - 43 506 INDEX. Stranger — Continued. after final judgment too late to insist on being made party to the action, ^ 101, !». when landlord liable to, for non-repair of leased premises, 80, ', ^. may make no motion in an action except, 8, '^. paying mortgage, when may not be substituted in place of mortgagee, 34, ^^. when motion to strike out name of, as plaintiff, proper, 102, 1'. misjoinder of plaintiffs, motion to strike out name of, 102,1*. to action, rights of will not be settled by decree, 7, ', et kpq. sale of property of, under execution sheriff liable individ- ually not on bond, 51, ^^. when tenant liable to, for injuries received from non-repair of leased j)remises, 80, *, ^. one tenant in common may sue alone as against, 82, ^. when cestui may sue for possession of trust funds, 32, i'. action by, against trustee to defeat the trust, when cestui que not necessary party, 23, ^. substituted as party by consent, evidence in suit, 106. '^''. Street, city wrongfully takes property for use of, ejectment, 44, 1'. when city may not recover from private person share of cost of wall made in opening, 43, *. liability of city to repair, change grade of, etc., 44, ^, et seq. distinction between liability for non-repair of, of officers of incorporated village and town, 4G, ^'^. change of grade, damages to abutting lot owner, liability of town. 4G, 15. liability of village to owner of lot adjoining, for change of grade of (Ohio), 46, ^K lien of assessment on lot for improvement of, in S. F., who may enforce, 34, ^^. town may sue for obstruction of public, 45, i^. town not liable independent of statute for failure to repair, 46, ^, et seq. town not liable for failure to prove drain under, for surface Avater, 46, i''. when village liable for unlawful acts of its trustees in opening, 46, i^. See Parties; Indispensable Parties: Necessary Par- ties. Subject-matter, of suit in equity, all persons having interest in should be made parties, 18, ^, (^t i^eq. of action, if interest in common to many jiersons, when one may sue, 30, *, et seq. I>'DEX. 5U7 Subject-matter— Continued. of action, one oi class interested in cannot sue for own individual benefit, ^ 30, ^ et seq. ot action, it interest in be joint all should unite, TO. +. Subrogation, extent to whicli land sold by executor will be in iavor of purchaser. 73. ■uiien purchaser of lands from executor will be to rights of creditors, 73. Subscription, when corporation may sue iipon, 90, '^. to capital stock of corporation, liability of stockholder, 93, J^ el heg. due unincorporated association, when trustee mav sue for, 92 :<. Substitution, action does not abate by expiration of term of oftiee of plaintiff, 47. 'K appellant becomes bankrupt after appeal perfected, proper, 108. 1". appearance not intervention but, 109, ^. of assignee as party administrator must have notice, 106, a, of assignee of bankrupt partner in suit against co-partner for dissolution proper, oi. 6. assignee of purchaser at sheriffs sale for original plaintiff not proper, 106, i'. associates become corporation after suit brought, none, 106, i«. action against bailee principal may be substituted as defendant. 106, i«. death of plaintiff, administrator proper, 106. -. death of woman plaintift leaving minor child proper, 106, ". on death of sole plaintiff or defendant in pending action, who may be substituted, 105, 22. death of receiver pending suit, what proper, 52, i**. of administrator of defendant, who mav make motion, 106, ^1. ■when executor of joint defendant in pending action im- proper, 106, ■'^•^. of defendants in action against officer to recover attached property, when made, 106. ■■^". when too late to obtain order vacating order, tort, 106, ^o. when too late for defendant to object. 106, ^'*. bv striking oitt name of sole partv and inserting new partv 'not allowed, 106, ^'^. notice of rights of party, lOG, ^, et seq. of party to pending suit. Code, 106, *'. of partie:? plaintiff, transfer of interest 7>e7?f/en^^ lite, 3i, ^, appeal imiame of partnership, extent of, 106, '^*^. must be made in manner pointed out in the statute, 108, ^. 508 INDEX. Substitution— Continued. of stranger as party in plact, of representative, bv consent, effect, -j 106, ^'. of stoclcliolder for corporation as plaintiff in pending suit, 106, ^\ same rule in supreme as in circuit courts, 108, '^. suit by surety to enforce right of to sureties, party, 24, '^. Successor, action by probate judge upou bond, resignation of, who continues, 49, ^, et i>eq. bond to public officer and. "who may sue, 47, 5. action prosecuted by public ofticer, on death of or removal from office continued b\', 107, ^'. public officer must pay over money received in official capacity to, 47, ^, et seq. of receiveV dying pending suit, substitution of, proper, 52, i". bond given to A. B., treasurer, and to his, who mav sue, 50, 1. Suggested, bankruptcy of plaintiff, assignee should be substi- tuted, 53, 1', et seq. death of party, when, 106, ^ death, proper time for proof of death of party, 108. «. death of party, opposite party entitled to notice, 105, ^. Suit. See Action. Superintendents of poor, in what name may sue, 90, «. Supsrvisors of town, name of office, meaning of term, 45, 2. Supplemental, bill, assignee of defendant made partv to suit by, 11, '. pleading, cannot deprive party of rights of, bar of statute of limitations, etc., 8, -". Supplies, family, husband and wife jointlv and severally liable (Iowa), 68, J^, etseq. plantation, when wife's estate liable for, OS, >«. Supreme court, objection for defect of parties not made for first time in, unless, 103, ^*, et .'^eq. want of parties to bill, made for first time in, effect. 102, '"^K Surety, principal and, suits by and against generally, 86. proper parties to suit to open settlement of adiuinistrator, 86, ^'. on bond, when become quaai parties to suit, 1, ^e. Avhen all may be joined in suit upon several separate bonds, when action will lie upon survivors, upon joint bond, 86, ^5. necessary parties to bill of, to sibject land to payment of bond for price of paid by, 26, ^^. on bond of administrator, 'proper parties to suit to recover legacy, 22, ^•^, et seq. on administrator's bond, not liable for claim barred by statute, 86, ^e. rsDEX. 509 Surety — Continued. suit on boud of cashier, death of insolvent, suit proceeds against, ^ 55, ^^. in suit upon executor's bond, non-joinder of representative of, against surviving principal, 101, •». on forthcoming bond, not released by discharge of principal in bankruptcy, iiio, -i; et seq. on forthcoming bond, not released bv insolvency of prin- cipal, 86. ■^^. when not liable jointly on official bond, 86, ^^. on official bond, exten't of liability. 86, ^'*, et seq. released upon disaffirmance of contract by infant, 59, ^. in equitv. when mav sue all persons liable on joint con- tract, 74. statutory remedy of, for contribution cumulative, 86, ^. right to 'contribution from co-surety, 86. '^. when may bring joint action for contribution, 86, ^. when may sue personal representative of deceased co-surety for contribution, 85. bill t ) enforce contribution, proper parties to, 24. ". paying debt of principal, when rday sue jointly, when bring several action, 86, ^ et seq. when creditor will be enjoined from collecting debt from, 86, ^ when may bring bill to subject lands to pavment of debt, 86. '. lands of, bill to subject to payment of debts of principal, necessary parties, 26, ^''. death of one, on joint obligation, effect, 86. ^^, et seq. of deceased administrator, devastavit suit against, represen- tative should be party. 22, '^. and representative of administrator cannot be parties to acti(»n for devastavit of former administrator, 75. of administrator, distribution suit for all if some dead, representatives proper parties, •/.2. ■*^. of executor not liable until after default of latter, 86, -**. when executor of dectased may not be substituted as de- fendant. 107. 16. on bond, may sue co-surety for exoneration, although insol- vent. 55, '.' bill bv. tj enforce his exoneration who joined as plaintiflfs, 24,''^. of guardian, when bill for an account will lie against alone, 86. a". of guardian, need not be joined in action by infant upon bond. 57. ^-. proper partv to bill for an account bv infant against guar- dian, 21, i"^. 510 IXDEX. Surety — Continued. of guardian, joint action against witli principal will lie for an account, ^ 86. ^^ of guardian, not liable for note given for board of ward, 8li, ^^. In proceeding by, to have judgment assigned to after pay- ment, principal must have notice, 86, i^. on injunction, when are considered as parties to suit, 86, ^i. relief asked against principal properly joined, 24. ^". of defendant in replevin, when may intervene, 86, '^'^. when may be sued alone, without joining principal, 86, i^. suit against, when not entitled to have the principal brought in, 86, n. i'-^. rights of, when sued alone, 83, ^^ et seq. suit to enforce right of substitution to securities, neces- sary party, 24, '^. action against, to co-surety to establish trust, who not necessary party to, 23, ^*. siiit against principal, when trustee of latter necessarv party, 23, ^i. Surplusage, additions to name of plaintiff, what is, 4, ^, et seq. fact that action at law prosecuted for use of third person, 2,*. Surface water, owner of land may not concentrate, etc., 38, ^^. Survival, of action, see Abatement. of action for conversion, 76. of action for failing to file report by trustee of corporation, 107, ^«. death of one of several defendants in action for accounting does not abate, 105, <>. of action for damages caused by dog, death of plaintiff, 107, ai. of actions for deceit, divesting water course, etc., die with person, 107, '^*^, et seq. judc!:m 'ut recovered by husband and wife, survives to wife, 107, ^». of action for bodily injurv caused by act or default of defendant, death of plaintiff, 107, =*^. action for breach of promise of marriage on death of de- fendant abates, 107, ^. of action for nuisance, 76. of actions, as a rule personal actions die with the person, 107, ^«. of action of replevin, 107, 27. of action, for default of sheriff, 76. of action for misfeasance of sheriff or deputy none, 51, '^*. of action, tort, effect of deatli of sheriff, pending action against for default of deputv, 76. I>-DEX. 511 Survival— Continued. of action, statute (3Ie.), all actions for trespass and. case, § 107. 33. action for tort against personal representatives of deceased Avron<]^-doer, 7G. of action of tort that dies "with the person bv stipulation, 108, 3, of actions for torts, statutes proAdding for, construed strictly, 107, ^a. cause would survive to -o-ife, she must be jomed. 63, 3. on death of one joint administrator or executor trust sur- vives to. 71, ^3. next of kin may proceed against representative of deceased joint administrator, although there is, 77. npon death of one of two joint administrators pending suit action may proceed ag^iinst, 75, -3. in suit against upon executor's bond, non-joinder of repre- sentative of deceased principal, 101. 6. action for destruction of chattel, death of co-defendant, proceeds against, or executor, 98. '. of joint contract, when may sue. 94, ^, action lies against, on deatli of co-contractor, 74. •Rhen action brought against, upon joint contract, 97, of joint contract proper defendant, on his death his exe- cutor, 107, ^K el seq. in actions upon a joint and several contract personal repre- sentatives of decedent never joined Avith at law. 71. personal representative of decedent never joined with at law. 72, i«, 71. remedies on judgment exhausted before action against estate. 9. •*=•. in eeiuity all persons liable upon a joint contract may be sued, 71. judgment against several, death of one, writ of error prose- cuted by, 108, ie. of joint vendor of land, suit by to enforce lien for purchase price, necessary parties. 27, ''^. of je)int payees of note, may sue thereon, 72. i^. on his death his executor inay sue. 72, i", 88, '^. of joint plaintifis, continues to prosecute suit, 107, •>. ot joint plaintifis in action, trespass guare clnusuui /regit, prosecutes, 107, **, et s^eq. death of one of two or more plaintiffs within a year after judgment, execution issued for or against. 105, "'. death of joint elefendant, executor or partner, suit proceeds ag linst. 107, ^, et seq. of i)artnership, may sue npon claims of, 88, ^, et seq. 512 INDEX Survival — Continued. of partnership, executor of deceased partner not joined with, in action on firm claim, g 88, '^^, et seq. on death of co-partner not liable for balance due estate of decedent, until partnership afiairs settled, 72, '^*'. partner, when cannot recover firm property from executor of decedent, 74. partner, never joined as defendant, with representative of decedent, in action at law against partnership, 74. partner, when mav be joined as defendant with executor of decedent, 74, 89, ^2. partner (La.) joinder of representative of decedent in action to recover money, 25, ^ partner, suit by to declare trust, proper party, 25, ^. when joint action will lie against, even though they are the sureties, 86, i». of joint trustees may sue, 32, ^". of joint trustee, suit by, heir of deceased trustee not neces- sary party, 23, **. joint trustees and representative of deceased joined as _ parties, when, 33, ^. right of action for use and occupation of joint estate is in, 82, ;io. Syndic. See Assignee. Tax, when city may recover, 43, ^. illegal, when city may not recover back money paid upon, 46, ^. municipal corporation, when cannot maintain bill to re- strain collection of, 43, «. to pay bonds, bill to restrain collection of, bondholders numerous, necessary parties, 28, -'. illegal, suit to restrain collection of upon homestead, who sue, 66, •'^. who may intervene in action to enforce, 110, -^. land sold fur, when county not liable for njpney paid for redemption of, 4, «. injunction to prevent collection of, for payment of interest on bond of school district, necessary parties, 28, ^*. bill to restrain collection of, owner of "school lands, county proper party, 28, '■^^. for scliool purposes illegal, remedy, for money collected, 46, 22, et seq. State auditor may enjoin treasurer of State and county ^ from receiving script in payment of, 50, ^. Tax collector, county treasurer may sue for failui-e to pav over money, 50, 2. treasurer may not retain special counsel to prosecute, 50, ^ ^ ^ INDEX. 513 lax deed, to laud of intestate, who mav restrain issuance of, § 78, ■^. person authorized by law to execute, necessary jiarty to suit to restrain execution of, 28, ^'. when obligors on contract for sale of land may sue to set aside, 96, i'. Tax sale, of lands of intestate, who may sue to set aside, 78, '^. of lands, what is sufficient to support action for fees. 50, ^. void, countv liable to holder of certificate for amount paid, 42. ^. Tax payer, when may sue for self and all others, etc., to test validity of law to raise public money, 30, s, et seg. when may not sue for self and all others to restrain collec- tiorfof' delinquent school tax, 30, ". when may not compel interpleader, 114, ^^. when mav unite in suit to set aside contract of district board, %, ^^. can bring bill to enjoin collection of tax levied on property within municipal corporation, 43. ^. Team, who liable for incompetence of driver of, 83, ^-, et seq. Tenant, abandoning crop, when landlord may file bill of inter' pleader against attaching creditors of, 79, ' . sole, death of, in writ or right action abates, 107, -i^. when may maintain action for injury to leased premises, 79, 8, «. when landlord must join as co-plaintiff in action to sup- press nuisance, 79, ^'^. suit against, to recover possession of leased premises, when heir of landlord may continue, 79, i". when mav bring bill' of interpleader to settle claims fcr rent, 79, ^", 114, ^K when liable to purchaser at execution sale for rent, 80, -^. liable for rent although he never entered demised premises, 79, i«. and liis surety may be sued in same action for rent, 80. ^^. when landlord liable to, for non-repair of leased permises, 80, ^ ^ 6. when liable for negligent use or non-repair of leased prem- ises, 80, *, 5. when cannot recover for repairs from co-tenant, 8"2, -^. of particular estate, when remainder man may sue to remove cloud from title, 79, ^^ ^^. may maintain action for tresjiass upon crop, 79, ■*. Avhen liable jointly for trespassing stock, ^0, -'. right of action for\ise and occupation is in surviving. 82, ■•■^. Tenant in common, when may recover contribution from co-tenant, 82, ^". 511 INDEX. Tenant in Common — Continaed. when must sue separately for damages for breach of cove- nant that runs with the land, g 82, *. of lands, when become corporation for purposes of sale of, latter must sue fur trespasses upon, 9o. i>. must all join as plaintiffs in ejectment, 82, 'j, i^, when may bring ejectment, against co-tenant, 82, ^^. when one tenant may recover for standing grass sold, from common properly,' 82, ^e. husband and wife' may join with, in action for injury to joint property, 6G, '^. when may not bring statutory action against co-tenant for an injury to the common property, 82. -'. when administrator of deceased and survivor may unite in action for damages for sale of lands under erroneous judgment, 73. when administrator of deceased mav enjoin tenant from subletting, 73. persons secured by one mortgage, when debts are several, are, 82, ^', et seq. of mill, cannot join in action for breach of covenants with reference to water, 82, ^^ of a mill, may join in action for diversion of water from, 82, i». right of action for partition, 82, ^i, otseq. when sale of common property will bo ordered in suit for partition, 82, '•^^. generally suits relating to personalty, 81. when mav bring action for mesne profits, against co-tenant, 82, 28. may join in suit to quiet title to common estate, 82, ^. real actions, how may sue, 82, i, et seq. when may maintain a joint action for rent, 82, -'-. when separate action, 82, -'-*. when may sue co-tenant to determine adverse claim of title to lands, 82, «. all should join iu action for damages for destruction of title deeds, 82, '. when should enforce actions for torts jointly, 81, ^. generally must sue jointly when tort waived and suit brought in assumpsit, 81,*^, et seq. all shouU join in action for trespasses upon lands, 82, **. may sue co-tenant for Avaste, 82, ^'^. Term of office, expiration of does not cause abatement, public officer, 47, «. suits l)y town treasurer, do not abate by expiration of, 50, ». Time, after the expiration of, limited bv statute iu relation to abatement of actions, no scire facias, 105, ^^ et seq. rs-DES. 515 Time — Cont'mned. in action against administrator, begins to mn wlien, ^ 75. to plead, general appearance does not waive, IG. **. extent of, during wliich common carrier liable as such for goods, 87, ^ et seq. of life of corporation extended, effect on suits commenced during. 90, -"-. death of defendant pending publication of summons, effect, 12, '. "U-hen commences to run, for infant defendant to tile dila- tory pleas, 58, '^. "U'lien objection to misnomer of defendant made, 16, ^^. for tiling bill of interpleader, 113, ^', 114, ». intervenor, granted proper, 109, ^. intervenor, standing in court, 111, ^^. statute of limitations, no one to assert, 8, '^'-. stav of proceedings, does not extend for motion of revivor, 105, 2". to sue upon statutorv right of action, extent of limitation, 8, 21, et i^eq. stipulation etfect as to, when person made party, 7, -'a. substitution of party, notice, 106, ^, et seq. for issuance of summons, reached by special appearance, of acquiring title to trust property, receiver, dates from bond, 52, *>. Title, what administrator represents in action of ejectment, 73. adverse claim to, see Ad^'EKse Claim to Title. adverse claimant of, not party to foreclosure suit, 5. ^, 27, 2". adverse clamiant of. when party to suit to enforce vendor's lien upon land. 27, ''. of assignee of bankrupt evidence of, 53. ■*. bond, when assignee of note given for price of land may foreclose, 35, ■'^. bond for, suit upon when assignor necessary party, 26. ■*. certificates, when holders of, properly joined as defendants in suit to set aside, 99, •*. action to remove cloud, when remainder man mav sue for, 79. i*, 1-. deeds, who may sue for conversion of, 72. ''. deeds of land, heir must join in action for their destruc- tion, 18. 23. deeds, all tenants in common should join in action for destruction of. 82, '. deed lost, plaintiff may maintain ejectment, although, 9, ^". defendant must be a wrong-doer at time action of ejectment is brought or action fails, SO, ». et seq. question as to in ejectment, 33, ^'^. 516 INDEX. Title — Continued. plaintiff in ejectment must show, § 9, ^'^, et seq. action of ejectment, plaintitf must recover on own, 9, '^'K superior in another ejectment, 9, ^**. after acquired, not good defense to action of ejectment, 9, 3'. from common grantor, ejectment, neither party can dis- pute. 9, ^^ intervention in real actions, 110, ^^. to land, person without may maintain action for injury to his possession, 79, ^. to land disputed, must bo settled at law before partition, 9, ^^ to note, person holding should sue, 35, ', et seq. of receiver, to property of the trust dates from, 52, ^. to trust property, trustee failing to comply with statutory requirements,"^ effect as to, 23, ''^. Tort, when action for assault and battery will lie against the executor of the wrong-doer, 7G. can city ratifiy acts of agent so as to become liable, 85, ^. liability of city for acts of its officers, 44, ^^, et seq. generally or for conversion of property of decedent in his lifetime, administrator must sue, 78, *. when acts of infant amount to conversion of bailed prop- erty, 59, **. of agents of corporation, when latter liable for, 91. ^s. defendants, generally who made parties in action for. 98. mis or non-joinder of defendants, no objection, 103, ^. non-joinder of defendants, no objection, 100, -'. common law, death of defendant in trover, action abated, 107, ^•^. executor, how sued for his psrsonal, 7fl. feasors, wlien plaintiff may treat acts of as joint or several, 89, 'K of husband, wife not liable f.ir, 70, ^^ et seq. injury to Avife, two actions at common law, 65, ", et s^eq. to wife general rule, husband and, join in action. 65, ^ to wife, cannot sue husband for after divorce, 65, ^'^. of wife before marriage, joint action against both, 70, ^. liability of husband for those of wife, 70, ^ et seq. of wife during coverture, rule as to liabilitv of husband modified, 70, **. of wife in absence of husband. 70, 3. fraud changes rule of liability for tort of wife, 70, K liability of infant for, same as adult, 59, ^, et seq. liability of insane person for, 62, ^*, injury to estate of decedent, who may sue, 72, ^. injury to person from act made misdemeanor, 38, 2'. ]t>-DEX. 517 Tort — Continued. person in possession of property may sue for wrongful injury to, ^38, ', et seq. injury to shei p, bailee of may sue, 87, i', et seq. wlien several persons injured by same tortious act may suo wrong-doer jointly, f*5, ". sale of whole interest in chattel ly tenant reversioner may recover, 38, '^. joint action for, generally, when Avill lie, 95. ^. et y-rq. wiien plamtiff may treat, as joint or several, 69, ^■*. et seq. when defendants pioperly joined in action for, 98, ^. defendants, when joint action against not proper. 98. ^ joint, in ord'^r to be. must be a •• onen* ss " of act, 98, i^. joint or several action for, proper, 98. >*, et seq. selling liquor to husband, when joint action proper, 98, 5, when master may sue for loss of service, 83. '"*. unlawful use of force by servant, when botli master and servant liable for. 83, ^^ malicious prosecution, corporation liable to suit for, 91, -*•'. infant, when not liable for malicious suit brouglit by next friend, 59, ^'\ death of a parson caused by negligence of another, gener- ally, 72, ', et Feq. wrongful taking property from ofticer after levy, right of action in him, 30, ■**'. when firm liable for. of one partner, 89, ^ ', et seq. who joined as plaintifi's in action for. ?o. at law same psrson cannot be both idaintitf and defendant in action for, 6, ^^. effect of misjoinder of plaintiffs in ac:ion for. 102. •*, et seq. non-joinder of plaintiffs matter ot abatement merely. 102, ^". objection for non-joineter of plaintiffs, how taken advantage of, 95. ^ et seq. in action for, how objection made to non-joinder of plaint- iffs, IGO, 11, etseq. generally actions for, against personal representatives, 76. person attempts to pursue two distinct remedies tor, elect, 9, «. action for seduction of chilel, when parent may sue for, 83, ^. defense to action for seductirn of child, ^3. *'. enticing away servant action lies for. 83, *. negligent acts of servants, when contractor liable for, 83, i^. sheriff may site for gooels attrfcheel taken from possession of, 51, «. sheriff and deputy may not be joineel for tort of latter alone, 51, i^. survival of action for elefault of sheriff or deputy, 76. personal actions for, as a rule die Avith the person, 107, ^^. Parties — 44 518 ixuEX. T.QTt — Cont'mued. action lor. that dies with person mav survive by stipula- tion, ^ lOS, 3. ■when actions for, survive against personal representatives of wrong-doer, 76. survival of actions for, statute providing for construed strictly, 107, ^s. Code, rights of action for, tliat would survive may be assigned, 38, ^S et seq. action for, not founded upon contract by tenants in com- mon jointly, 81, ^ ^. when action for trespass qimre clausum /regit lies against executor of wrong-doer, 7G. when may bo waived and action brought in assumpsit, 81, '^. when cannot be waived and suit brought in assumpsit, 81,^. one who has repudiated contract for fraud mav sue wrong- doer, 38, 3, release of one joint wrong-doer, effect, 98, ". Tortious acts of deputy sheriff, action against sheriff need not be described as sheriff, 51, •'^. Town, bonds, authorized issuance of constitute a valid demand against, 46, "*. unauthorized issuance of bonds, money received by, may be recovered back, 46, ^. bond given to State to use of, former may not sue in own name, 45, «. bond for support of bastard, settlement in new town, name in which suit brought, 45, '. may sue upon a contract made to an agent for its benefit, 45, ^^. divided after demand created, when suit to recover against each separately, 46, ^ not liable for failure to provide drain for surface water under street, 46, ^^. may sue for obstruction of highway, 45, ". not liable independent of statute for non-repair of higli- _ ways and bridges, 46, «, et seq. liability for damages for change of grade of street to owners of lots abutting, 46, '^ distinction between liability of for non-repair of streets, and that of incorporated village, 46, ^-. not liable for faulty construction of town house, damages, 46, ''. statute, may sue for price of right to fish in its streams, 45, ^•*. action will lie against upon judgment, 46, ». action brought in name of, probably proper, 45, S et seq. INDEX. 519 Town — Continued. no liability to physician for treatment of small-pox patients, 'i 46, «. may siie officer for failing to pay over money of, to his suc- cessor, 45. **. change of officers pending suit by, effect, 45, ^. may sue rioters for destruction of property, 45, ^''. liability for money collected for school fund, 4G, -^, et scq. must sue in manner provided by statute, 45, ^ (t seq. how sued, in what capacity, 46, '^ et seq. not incorporated, suit against trtistees, 46, ^. supervisors of, name of office, meaning of term. 45, 2, when city may not recover back money paid to, under illegal tax, 46, *». must be party to bill to restrain treasurer of, from paying money voted, 46, ^^. Town house, town not liable for faulty construction of. 41, '^ Township trustees, when may not be party to a suit, 20, **. Transfer, sufficient to constitute assignee, real partv in inter- est, Code, 34, 12, et seq. Transitory, personal actions ai-e at common law, 9, ^'. Treasurer, county may sue tax collector for failure to pay over money, 50, -. cannot retain special counsel to prosecute tax collector to recover county funds, 50, *. county, when liable to suit upon bond, 50, ^^, et seq. countv may sue for failure to pay over monev collected, 50, \ bond of, suit upon, in whose name prosecuted, 50, '. parish, unless specially authorized by statute cannot rep- resent it in action, 50, •>. State and county, State auditor may enjoin from receiving script in payment of taxes, 50, **. Treble damages, destruction of chattel, death of co-defendant, actioi) proceeds against survivor or executor, 9S, '. Trees, trover for conversion, although taken in another State, 38, ^, et seq. Trespass, joint owners of chattel unite in for injury to, 95. ', upon crop, tenant may maintain action for against landlord or succeeding tenant, 79, 3, 5. de bonis, who may maintain action for, 38, s. de bonis against "deputy sheriff, anel judgment unsatisfied, no action against sheriff, 51, ^*. who mav maintain for propertv of the estate of deceelent, 42, ^",' ^^ XX. of infant, liability same as aelult, 59, ". upon lands, when administrator may sue for, 73. upon lands, when administrator may sue heir for, 73. 520 INDEX. Trespass — Continued. ii]joii lands when corporation may sue for, § 90, '•; 93, ^. upon lands, when heir may sue tur, 73. upon lands ot wife, husband and wife may sue for, 66, ''\ lands ot mfant guardian in socage may bring in own name, 57, ^ upon land, title in trustee, action in his name, 32, ^^. upon lands all tenants in common should join in action tor, 82, ^ but one may sue alone as against a stranger, 82, ^. by officer attaching lirm property for debt of one partner, when firm may sue, 88, *•'. qiiare claunnrn f regit, tenant in common cannot sue co- tenant for. 82, i^ 1*. qnare clausmn /regit, on death of co-plaintiff survivors prosecute, 107, **, et seq. quare da nsarn f regit did not abate by death of one of sev- eral co-defendants, 107, ^*', et seq., i05, ^. deputv sheriff directly liable for, connected under color of, 51, 1''. or trespass on the case, by statute (Me.) survive, 107, ^■^. Trespassar, (ib initio when attachin.i,' officer is. 81, -". when receiver is, may be sued in any appropriate form of action. 52, ^■•^. Trespassing stock, when owners liable jointly for, 80, ^i. Trial, at law, equity will not lend its aid to a party after, unless, 9 IS effect of- before service in intervention, 109, ». iion-jointler of plaintiffs, when objection made at, 95, ^. person joined as plaintiff without his knowledge or con- sent, objection made before, 9, ', et seq. rights of party must continue until, 9, '^. Trover, general rule will not lie in favor of one co-tenant against a co-tenant, 81, ^\ when co-tenant of chattel may bring against co-tenant, 81, ^S et seq. for convarsion of trees in another State lies, 38, ^ et seq. for joint conversion, effect of compromise with co-defend- ant, 9, ^e. when action will proceed against defendant, although dis- charged in insolvency, 55, ^**. who may maintain for property of estate of decedent, 72, J", li. I i J will lie against infant when proper remedy, 59, ^~. when action for brought in name of receiver, when not, 52, ^. conversion ot property of wife, who mav sue for, 65, ^'. pleading, wlien cannot be amended, 38. "«. Trust daed, when assignee may intervene in suit upon, 110, 27. trustee must account to trustor, 33, ^^. INDEX. 521 Trust Deed— Continued. paid bv one grantor, suit to adjust equities, necessary par- ties, '§ 23, 'iK when trustee not indispensable party to suit to enforce pro- yisions of, 23, ^^. of suit to reform, when wife need not be party, 69, ^^. bill to restrain sale under, trustor should be' party, 28, =". suit to set aside necessary parties, 26, ■^'■^, et seq. suit to set aside by creditor, when trustee may be sued alone, 33, '^. Trust, created by decedent when administrator may sue to enforce, 73/ bill to enforce, who not necessary parties to, 23, ''. suit to declare, when administrator of estate of heir of deceased partner is proper party, k5, ". resulting, itceiver may not sue to enforce of judgment debtor, 32, i-'. resulting, in favor of judgment debtor, creditor may enforce, 52, ^^. implied in land, suit to establish, necessary parties, 23, ^\ implied, who joined as defendant in suit to establish, 99, '. when Cfi^tui may enforce purchase of lands, 33. --*. action to establish, surety against co-surety, who not necessary party, 23, ^*. suit to enforce, 'trustee failing to comply with statutory requirements as to, efi'ect, 23, '^^. estate, death of joint trustee vests in survivor, 23, ^\ estate, cestui generally necessary party in suits relating to, 23, 1, et seg. funds, when cestuis, must be parties to suits relating to, 21, i^ fund, bill against officers of corporation to prevent its mis- appropriation, latter party to, 91, i-'. funds, who may sue for possession of, 32, i", et seq. funds, when trustee may sue alone in suits relating to, 32, ^. funds, when assignee of estate of bankrupt mav not sue for, 3i, 25. funds, joint trustee answerable for, 33, ^^. funds, when trustee personally liable for loss, 33, ^, et seq. funds, suit for against trustee, when joint, when several action, 33, '^i, funds, trustee must account to cestui for, S3, i". funds, executor of deceased trustee of, accounting necessary parties, 23, ^. fund, suit for account of, what creditors necessary parties to, 23, -'^. fund, unc>'rtain, who necessary parties to suit for account, deceased trustee, 23, ^a. 522 INDEX. Trust — Continued. funds, devised to use of bankrupt, suit bv creditor to reach, necessarj- parties, ^ 23, ^*. funds, spJcitlcally devised, suit to recover of executor, necessary party, 23, ^^ funds, wlien judgment debtor may be bound by suit to reach, 5, ^'^. premises conveyed by debtor to sureties to pi-otect, neces- sary parties to suit by creditor to sell, etc., 23, '^\ property, suit to recover, when heirs of deceased cestui necessary parties, 23, ^^. property, suit relating to, against trustee, statute of limita- tions,' 33, ^^, et seq. property, may trustee of express trust be sued alone in action relating to, 33, ^. subject-matter of in dispute, all trustees made parties, 23,'. on death of co-administrator or co-executor, trust survives to others, 71, ^'^. testamentary, when heir may contest exf cutiou of, 78, '. trustee dead" or refuse to act, practice, 32, -'. Trustee, appointed, pending suit for an account, properly made party, 23, *». suit against' for an account, creditors payable in classes, necessary parties, 23, ^o, et seq. ceMni que 'tra, 4G. J''. Voluntary association, becomes corporation after suit brought no substitution of parties, 106, ^^. Voyage, when co-owner of vessel may sue joint owner for interrupting, 81: '^. Wages, when courts of admiralty permit infants to sue alone for, 57. 3. relinquishment of right to, l)y father inferred, 5G, i. Waiver, appearance of non-i-esident is, of jurisdiction over his person, 16, ^^ cause irregularly sent from inferior to superior court, when appearance is, 16, '-'. voluntary appearance of defendant is, of defects in process, 16, 1, et seq. general appearance is, of objections to, 16, ^, et seq. when general appearance is not, of, 16, '. of special appearance, contesting subsequent proceedings is not, 16, **. coverture, objection to disability to sue, 63, ^, et seq. defendants non-joinder of, in action upon contract, 103, ^-. defendant may, to all methods of bringing into court, 11, '^. plea to merits is not, of right of exemption of United States from suit, 40, **. what is, of objection for misnomer, 3, ^3. name of corporation changed pending action, objection when too late, 3, -". surname of defendant only set forth, what is, 3, ^^. name of guardian omitted in suit by insane person, what is, 61, J", of objection to capacity in which party is sued, what is, 4, ^•^. of objection to position of party on record, what is, 6, '. what is, of objection for misjoinder of parties plaintiff, 100, ^, et seq. non-joinder of plaintiffs, what is, objection, 100, '**. action brought in name of firm no" plea in abatement is, 88, 1, et seq. personal privilege, what is, 8, ^^. service of process, infant defendant none, 58, ^ et seq. of service in intervention, 109. ^. service of process none by guardian infant defendant, 58, ^. of publication by counsel, when amounts to general appear- ance, 14, 3. of rights, guardian ad litem for infant defendant cannot, rights. 58, '■^'^. of objection of omission of wife to sue husband bv next friend, 67, *, 528 iXDEX. War, certain contracts prohibited, if made cannot be enforced, § 29, 1'. domestic, abuse of beligerent power,inquiry into, 29, ^•'. between independent powers, abuse of beligerent power, inquiry into, 29, i**. Ward. See 'Guardian ; Guardian Ad Litem ; Next Friend. suit by, against guardian for an account, necessary parties, 24, '", et seq. sureties of guardian not liable for board of, 86, ^-. presumption as to jurisdiction of court over, 10, ^^. Warranty, covenant of, when co-partner.s sue jointly, 94, ^^. pjrson conveying with covenants of, liable for continuance of nuisance, 30, ^*. Waste, tenant in common may sue co-tenant for, 82, ^'^. writ of, injury to land of Vife, husband and wife join in, G6, ^f. prop -rty of corporation, when stockholder may sue director for, 93, 1, et seq. Water, diversion from mill, tenants in common may sue jointly for injury, 82, i". right of' owner of land to use water course, 38, '^, et seq. Water course, action for diverting dies with jDlaintifi", 107, ^^ rights of owner of lands to, 38, ^^ et seq. Water surface, town not liable for failure to provide drain for, 46, »«. Water works, liability of city for negligent use of, 44, i-*. Way, appurtentnt to land of wife, who may sue for obstruction, 66, '•^'■^, et seq. right of, action for obstructing, death of wife, when did not abate, 107, ^'. Widow, when may recover damages for homicide of husband, 78, 6. may sue for dower, purchaser from husband, 66, *^. suit for dower, marriage of pending, husband made partv, 66, ^». o 1 o 1 . suit for dower, interests in lands, necessary parties, 26, '^^. bill to enjoin conveyance of dower, interest, capaeitv, 28, ^«. ■ suit by, relating to homestead, heir proper party, 26, '^^. Avhen party tu probate proceeding, 1, --. and heirs, final settlement, proceedings to set aside, neces- sary parties, 26, '^K bill to redeem, w^hen may make purchaser of equity of redemption, party to suit, 28, ^. of vende3, vendor's' lien for purchase price of laud, prop, i party, 27, ^ of vendor of contract for sale of lands, when proper partv^ to suit to enforce, 26, '. k 529 ie. See Husband a>'d Wife, general rule, she cannot sue or be sued, ? 63, ", f^-f s<''. •what is sufficient authorization of to sue, 63. J', permission to sue alone, when right presumed. 63, "'. deserted bv husband may sue alone, 64, '. 63, ''. mav sue alone in equity,' husband may join. 66, =>, et f^eq. interests ot husband conflict, may sue alone and make him detendant, 66. '^. when may sue alone for malicious prosecution of, 65, ^^. cannot be sued without authorization (Code), 69, \ ei seq. as executrix, may be sued by husband. 67. **. non-resident may appeal, authorization, 69, ■^. general rule, answer with husband when sued jointly in equity. (-^9. ^. mav answer separately in equity when, 69, ^. boiid by husband and, made during coverture, action against both, dismissed as to, 68, ^". contract to, when sole, she must join in action upon, 64, ^ contract tc, during coverture', husband .?ues alone or jointly with. 64. 3. t't seq. contract, to pav to husband or to longest liver, survives to, 64. i^ contract of to release husband from jail binding upon lier property, 68, =*^. coverture good defense to contract of. 68. ^^. conversion of the property of. who may sue, 65, ^', et seq. conversion, she cannot sue for. 65. •^^. propertv of. conversion before marriage, husband and. sue, 65, ■-'.' property of. conversion after marriage, husband sues alone^ 65, ^'•. fraudulent conveyances of husband and, suit to set aside, she sliould be party to, 69, "^. when claim no indulgence from coverture. 69, ^. death of before suit does not defeat right of action for ciim. con., 65, 2^. death of pending action for injury to, by husband and, caused abatement. 65. '•^. statute, death of pending action by husband and. for injury revived by her administrator, 65, ^*. death of. in action by husband and, upon debt of. effect, 63, J", et seq. debauching, when right of action complete. 65. -*". anti-nuptial debts of husband and, jointly sued for, 68, '. liable alone for anti-nuptial debts (Code)", 68. •> P.\RTIES - 45 530 INDEX. Wife — Continued. discharge in banki'uptcy good defense to action for anti- nuptial debt of, § t)8, ■^. action npon note of Inisband and wife for debt of former, dismissed as to, 68, ^*. Avhen nut liable for debts contracted while living with hus- band, 68, '^'^, et seq. when express promise will not render liable for debt 5, 68, ^fi. when may sue alone to recover distributive share of, in estate of decedent, 66, •^■'. distributive share of, in estate of decedent, when suit for in name of huslmnd and, 66, ^^, et seq. when may join third person as defendant with husband in suit for divorce, 67, ^". liable for fees of attorney in suit by her for divorce, 68, 3». after divorce, may sue husband for money borrowed dur- ing coverture, 67, ^i. husband may sue after divorce for improvements, 67, ^2. claiming dower interest in lands, should be parties to suit fi)r partition, 28, ^^ et seq. when remitted to right of dower, wljen lands devised to debts, 78, i'. earnings of, when she may sue alone for, 64. **. no action for enticing away husband of, 65, --. enticing away, husband has right of action, 65, -^, et seq. extending ordinary hospitality to, is not enticing away, 65, ^^ et seq. enticing away, when can be no recovery in action for, 65, 2«. funeral expenses of, husband liable for, 68, -^ goods equitably belonging to, when husband may sue trustee, 66, •*. no action against husband, at law, unless, 67, ^ may sue husband or converse in equity, when, 67, -, et seq. when may sue husband upon note made before marriage, 67, ^ when cause of action would survive to, must be joined in action, 63, -K husband ostensible agent of, when she cannot be sued as principal, 68, ''^. acts of, when no action lies against husband for, 70, •'. Avhen made defendant in suit by husband, 63, '. necessary party to suit to restrain action against husband and, 28, ■"'. suit to subject distributive share of, to pavment of debts of husband, party, 22 -^ husi^and. when violates rights of. action necessarv, he properly made elefendant, 60, '. INDEX. 5C1 Wife — Continued. action upon joint note of self £.nd husband, may waive what errors, § 69, ^r et seq. infant sues with reference to her separate proi)erty, by guardian ad litem or next friend, 56, ^'-K iufant, when next friend may not sue in name of, 56, i*. action for injuries, when may sue by next friend (Md. ) . 65, 3, statute, mav recover for injuries to person or character as if sole, 6.1 ^^. injuries either to person or property, husband and, join for damages. 65, ^ et seq. special damage resulting to husband from injury to, he may recover, 65. ^K injury to person, action accrued to husband and, 65, **. injury to. action for loss of ser"\T.ce, etc., accrued to hus- band, 65, '. administrator of, mav sue alone for iujurv causing her death. 65, ^\ proper party to all suits relating to homestead, 26, 3'. may intHrvene in suits relating to homestead, 110, ^'. suits relating to lands of, husband not obliged to uiiite in, 66, l^ et seq. may sue alone to enforce contract to convey lands to. 66, ^'. lands of, ejectment for, husband properly 'joined with her in suit to recover, 66, ^^, et seq. may bring ejectment even against husband, when, 66. '*^. may prosecute alone, writ (>i entry for lands ol. when, 66, ^^. when mav sue alone for injurv to possession ot her lauds, 66, -'". ' injury to possession of lands, when husband died mav sue jointly, 66, -«. dies pending action by husband and, for injury to her land, action survives to his, 66. •*-'. does not.,become party to action by joining husband in motion, sale of homestead, 1. -'-•. lands of, for an injurv to the reversion, she must sue alone 66, -'«. rights of action relating to homestead, after death of hus- band, 66, ■>'. may sue either alone or jointly with husband to recover purchase price, 66, ">=. debt of husband, when she cannot compel payment to her- self of full purchase price of land, 66, ■*'-. when necessaiy partv to suit for funds arising from sale ot lands. 21, -'\ when may sue for rent of her land. 66, ^-, el seq. lands of. husband and wife mav sue for trespasses upon, 66, -'^. et seq. 532 INDEX. Wife— Continued. eitliei husbaiicl and, or husband Rlone may sue for obstruc- tion ot way to her laud, ^ 66. •^■\ et seq. ' separate estate, ejectment against, she sued alone, 09. --. ejectment against husband and, lands claimed by her, death of husband pending appeal, effect, 69, '^K lands, ejectment by purehas..^r of husband's interest in, necessary parties, 2(5, =". must be party to suit by purchaser to, dispossess husband from her lands, 2G, '■^'^. when husband joined with in action against for forcible entry and detainer, 69, '^•^. specific performance of contract to convey her lands, when will not be enforced, 69, ^'^. should be made defendant in statutory proceedings for sale ot her lands, 69, ^^. when may intervene in suit to quiet title, 110, ^^. made defendant in bill by husband to impeach marriage agreement, 64, ■*. may become liable for medical services rendered familv, 68, ■^a. contract of husband and, to execute mortgage will be enforced, 69, ^'•^. must be party to suit to foreclose homestead right, 27, 2t>, when made defendant in foreclosure suit, 69, ^*, et sea., 27, 27. of mortgagor, when not necessary part>' to suit of fore- closure, 27, 25. when prosecute writ of error, to reverse decree of foreclos- ure, 69, 1^ may not be sued alone after death of husband for neces- saries furnished before, 68, '^''. desertfd l)y husband latter is liable for necessaries, 68, '^*. when husband not liable for necessaries furnished, 68, 36. dangerous woman, no defense, action for necessaries against husband. 68, •^. jointly and severally liable with husband for expenses of family, 68, i^, r/ st^q. liability for family supplies (Iowa), 68, i^. liable for plantation supplies when, 68, i^. bill by, when husband must be next friend, 63, i^. must sue by next friend, in equity suit against husband, 67, -^ omission to sue husband, by next friend when waiver, 67, \ property of, see Separate Pkopekty of. 2)roperty of, levied upon by creditors of husband, suit for by husband and wife, 66," **. INDEX. 533 Wife — Continued. not necessary partv to suit relating to common property, i 21, -^K carrying on separate business, when cannot plead non- joinder ot husband, 68, ^'. carrying on separate business, statute, husband not liable for debts, 68. ^^, may sue iu relation to separate property alone, 66. '. et seQ. husband is proper party in suits relating to separate prop- erty of. 21. 1**. suit of relating to separate propjrty, she may sue alone or unite with husband, 66, -K suit in equity by, relating to separate property, husband proper defe'ndant, 21, ^^. et seq. money of, separate property, fraudulently loaned by hus- band, she may recoyer, 65, •*'^. bill to restain aale of separate property of for debts of hus- band, necessaiy party, 28, ■"*. suit for separatio'n of property insolyency of husband must be established, 67, ^. cannot maintain repleyin for- goods when, 6.5. *». cannot maintain repleyin against husband. 67, •'. slander of husband cannot recoyer in action alone unless, 65. i«. slander to, action in name of husband and, 65, '^ et seq. slander of, when she may sue alone. 65, ''^. for tort to. two actions al common law, 65. ", et seq. deserted by husband, sues alone lor tort. 65, -. tort of before marriage, when husband and. liable, 70. **. torts of, during coyerture, rule as to liability of husband modified, 70, •>. tort ot. when husband properly made defendant in action for, 70. ', et seq. fraud changes rule of liability for tort of. 70, *. liability of husband for torts'of. 70. ^ et ."eq. may not recoyer for assault by husband committed during coyerture, 67, '. I cannot sue husband for tort after divorce committed during coyerture, 65. *-. not liable for tort or fraud of husband unless, 70, '', el seq. when need not be party to reform deed of trust, 69, '^. Will, discovery of. effect on pending suit by administrator, 71, ^ executor proper person to conduct the litigation of, caveat of, 71, ^ suit to obtain construction of, who made parties, 22. '. child pretermitted in. may recover amount entitled to. 56. *. Lwhen devisee mav bring ejectment on, 78, ^^\ 53i INDEX. Y^ill — Cordinued. proiert not requirea, executor may commence action before probate of, | 71, ^ bill to set aside, who necessary parties, 22. -. et seq. administration of trusts in, interpleader, 113, ^*. suit to enforce trusts created by, parties, 22, *, trustee under, when cannot maintain interpleader to see where he will be taxed, 32, ^^. ■Wisconsin, rule in, who may sue, contract under seal for bene- lit of third person, 37, ", et seq. Withdrawal of appearance, effect. 17. *. et seq. matter of discretion of court, 17, S et seq. may be in appellate court, 17, ^. Witness, may not recover for injuries received through defects in court-house, 42, i**. Words, what used to describe a party, 4, ^, et seq. Work, contract for. when joint, 94, '**, et seq. Writ of entry, lands of infant, how brought, (Mass.). 57, «. Writ of error, appeal in nature of, judgment suspended, 108, 2. by husband and Avife, when death of wife abates, 108, ^'. judgment against several, death of one, survivor may pros- ecute, 108, i«. judgment against several, all must prosecute, 108. ^^, etseq. Writ of right, death cf sole tenant in, action abates, 107, *^. Written instrument, when principal bound bv, executed by agent, 85, i". Wrong, flowing from breach of contract when plaintiff may not recover for, 91, '^^. Wrong-doer, injury to possession of land, person without title may maintain action, 79, 1. when insurance company may sue for loss occasioned by, release of one joint, effect, 98, ^. University of Caiifornia SOUTHERN REGIONAL LIBRARY FACILITY 305 De Neve Drive - Parking Lot 17 • Box 951388 LOS ANGELES, CALIFORNIA 90095-1388 Return this material to the library^rom which it was borrowed. B 000 018 975 3 m ^ '/■/.