1851.

Action to be

prosecuted

name of party in interest.

Action by assignce subject to

discount, set off,

&c.

TITLE III.

PARTIES TO CIVIL ACTIONS.

CHAP. I. Parties to actions generally.

2. Parties to certain actions.

3. Married women.

4. Infants.

5. Persons of unsound mind, and prisoners.

CHAPTER 1.

Parties to actions generally.

57. Every action must be prosecuted in the name of the in real party in interest, except as provided in section sixty. § 58. In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any discount, set-off, or defense now allowed. And where the assignment is not authorized by statute, the assignor must be a party, as plaintiff or defendant. This section does not apply to bills of exchange, nor to promissory notes placed upon the footing of bills of exchange, nor to common orders or checks.

If assignment

not authorized by statute, as.

signor must be

party.

Does not apply

to bills of exchange and negotiable notes.

If right is trans the action, to be

continued in his
name, or
signee
party.

made

Executor, trus.

tee or guardian

may bring ac. tion in his own

name

without

joining benefici.

ary.

§ 59. Where the right of the plaintiff is transferred or assigned during the pendency of the action, it may be continued in his name, or the court may allow the person to whom the transfer or assignment is made, to be substituted in the action, proper orders being made as to security for

the costs.

§ 60. An executor, administrator, guardian, trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute to do so, may bring an action, without joining with him the person for whose benefit it is prosecuted.

§ 61. All persons having an interest in the subject of an All persons action, and in obtaining the relief demanded, may be joined as plaintiffs, except where it is otherwise provided in this code.

Interested may

be joined as plaintiffs in ac. tion.

Any person in

terested who

claims adverse to plaintiff may

be

§ 62. Any person may be made a defendant, who has, or claims, an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination and settlement of the question involved in the action. § 63. Of the parties to the action, those who are united in interest, must be joined as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason being stated in the petition.

§ 64. Where the question is one of a common or general Where parties interest of many persons, or where the parties are numerous and it is impracticable to bring them all before the court within a reasonable time, one or more may sue, or defend, for the benefit of all.

one or more may sue or defend for all.

§ 65. Persons severally liable upon the same contract, including the parties to bills of exchange, and promissory notes placed upon the footing of bills of exchange, common orders and checks, and sureties on the same or separate instruments, may all, or any of them, or the representatives of such as may have died, be included in the same action, at the plaintiff's option.

Where two or more are jointly bonnd, action

may be brought

against one or

If any are dead representatives may be joined with survivors. If all are dead action may be

§ 66. Where two or more persons are jointly bound by contract, the action thereon may be brought against all or any of them, at the plaintiff's option. Where any of the persons so bound, are dead, the action may be brought against any or all of the survivors with the representatives of all or any of the decedents, or against the latter, or any of them. Where all the persons so bound are dead, the action may be brought against the representatives of all, against or of any of them. An action or judgment against any one or more of several persons jointly bound, shall not be a bar to proceedings against the others.

repre. sentatives of all Action or judg. ment against

some jointly bound no bar

sy

against others. cannot be decided without be brought in.

If controver

others they must

$67. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights. But when a determination of the controversy between the parties before the court, cannot be made without the presence of other parties, the court must order them to be brought in. § 63. Where, in an action for the recovery of real or personal property, any person having an interest in the proper-sonal property ty, applies to be made a party, the court may order it to be done.

CHAPTER 2.

Parties to certain actions.

§ 69. Upon affidavit of a defendant before answer, in any action upon contract or for the recovery of personal property, that some third party, without collusion with him, has or makes a claim to the subject of the action, and that he is ready to pay or dispose thereof as the court may direct, the court may make an order for the safe keeping, or for the payment, or deposit in court, or delivery of the subject of the action to such person as it may direct, and an order requiring such third party to appear in a reasonable time and maintain or relinquish his claim against the defendent, and, in the meantime, stay the proceedings. If such third party, being served with a copy of the order, fails to appear, the court may declare him barred of all claim in respect to the subject of the action, against the defendent therein. If such third party appears, he shall be allowed to make himself defendant in the action, in lieu of the original defendant, who shall be discharged from all liability to either of the other parties in respect to the subject of the action, upon his compliance with the order of the court for the payment, deposit, or delivery thereof.

In an action for real or per.

all interested
may
be made
parties.

If affidavit is made by defend

aut before anwer

that an. other claims the

property, court may make order

for its safe-keeping.

If third party

fails to come in he is barred. He may be made

defendant.

§ 70. The provisions of the last section shall be applicable to an action brought against a sheriff, or other officer, for the recovery of personal property taken by him under an execution or distress warrant, or for the proceeds of such property so taken, and sold by him. And the defendant in any such action, shall be entitled to the benefit of those provisions against the party in whose favor the execution or distress warrant issued, upon exhibiting to the court the process under which he acted, with his affidavit that the property, for the recovery of which, or its proceeds, the action is brought, was taken under such process.

§71. In an action against a sheriff, or other officer, for the recovery of property taken under an execution or distress warrant, the court may, upon the application of the defendant, and of the party in whose favor the execution or distress warrant issued, permit the latter to be substituted as the defendant, security for the costs being given.

§ 72. An action to recover the possession of specific personal property taken under a distress warrant, where it is brought by the tenant, or his assignee or undertenant, may be against the party who sued out the warrant; and the property claimed in such action may, under the order for its delivery, be taken from the officer who seized it, where he has no other claim to hold it than that derived from the warrant. The indorsement of a levy on the property, made upon the warrant by the officer holding it, shall be a sufficient taking of the property, to sustain the action against the party who sued out the warrant.

$73. An action to enforce the liability of a steamboat, or other vessel, for the removal of a slave, or to enforce a lien upon a steamboat for the wages of its officers or crew, or for work done upon, or materials, supplies, stores, or provisions furnished to such boat, or the liability thereof for an injury to another boat or craft, or for a trespass of its officers or crew, and in which no relief is sought beyond the subjection of the boat or vessel to the satisfaction of the plaintiff's claim, may be brought against the owners thereof without naming them, or they may be named and summoned as other defendants. An owner, or part owner, or person having claim or title to the boat or vessel, whether named as a defendant in the petition, and summoned, or not, may appear and make defense in the action, where it satisfactorily appears by his affidavit that he is an owner, or part owner, or has a claim or title to the boat, the nature and extent of which must be stated.

§ 74. An action to enforce a lien upon a steamboat, may be brought jointly by several persons having distinct claims for work, materials, stores, provisions, or supplies. In such cases, the statement in the petition of the claim of every plaintiff, and the verification thereof, must be separately made.

§ 75. In an action to enforce a lien, by statute, upon a steamboat for wages, work, materials, stores, or supplies, other persons having claims for any of these things, shall, upon exhibiting the same to the court by petition verified by affidavit, be made partics.

CHAPTER 3.

Married women.

§ 76. Where a married woman is a party, her husband must be joined with her, except that, where the action concerns her separate property, she may sue alone; and, where the action is between herself and her husband, she sue, or be sued, alone.

may

If husband &

§77. If a husband and wife are sued together, the wife may defend for her own right; and if the husband neglects wife are sued sae to defend, for his also.

§78. Where a husband being a father, has deserted his family, the wife being a mother, may prosecute or defend, in his name, any action which he might have prosecuted or defended, and shall have the same powers and rights therein as he might have had.

§ 79. Where a female party to an action marries, the fact being stated upon the record, the husband may be made a party with his wife, and the action shall proceed.

CHAPTER 4.
Infants.

may defend her right.

If husband de

wife may sue or defend.

If female mar

ries

tion,

pending ac

husband

may be made

party by order.

Action for inmust be

brought by guardian or next friend.

$80. The action of an infant must be brought by his guardian, or his next friend. Any person may bring the fant action of an infant, as his next friend; but the court has power to dismiss it, if it is not for the benefit of the infant, or to substitute the guardian of the infant, or another person, as the next friend.

§ 81. The guardian, or next friend, is liable for the costs of the action brought by him, and, where he is insolvent, the court may require him to give security for them. Either may be a witness in an action brought by him, after he has deposited in court a sum which the judge may deem sufficient to cover the costs, or, where the action is by a next friend, after the substitution of another solvent person as next frien'l, and an order of the court, with the consent of such person, that he shall be liable for all the costs of the action.

Guardian or

next friend lia May testify by depositing costs

ble for costs.

Who must de

fant.

§ 82. The defense of an infant must be by his regular guardian, or by a guardian appointed to defend for him, fend for an inwhere no regular guardian appears, or where the court directs a defense by a guardian appointed for that purpose. No judgment can be rendered against an infant, until after a defense by a guardian.

§ 83. The guardian to defend shall be appointed by the court, or by the judge thereof. The appointment cannot be made, until after service of the summons in the action

Must be appoint. ed by the court.

1851.

Upon whose application.

Action against persons of un: be brought by

sound mind to

committee or next friend.

Committee li

able for costs.

May be witness

by depositing costs.

be by committee

or next friend.

as directed in this code. No party, or attorney in an action, can be appointed guardian to defend therein, for an infant, or person of unsound mind.

§ 84. The appointment may be made upon the application of the infant, if he is of the age of fourteen years, and applies at or before the term to which the summons is served. If he is under the age of fourteen years, or does not so apply, the appointment may be made upon the application of any friend of the infant, or on that of the plaintiff in the action..

CHAPTER 5.

Persons of unsound mind, and prisoners.

§ 85. The action of a person judicially found to be of unsound mind, must be brought by his committee, or, if he has none, by his next friend When brought by his next friend, the action is subject to the power of the court, in the same manner as the action of an infant so brought.

§ 86. The committee, or next friend, is liable for the costs, and, where he is insolvent, may be required to give security for them. Either may be rendered a competent witness in an action brought by him, in the manner provided in respect to the guardian, or next friend, of an infant.

§ 87. The defense of an action against a person judicialDefense must ly found to be of unsound mind, must be by his committee, or a guardian appointed by the court to defend for him,. where no committee appears, or where the court directs a defense by a guardian. No judgment can be rendered against him, until after a defense by his committee, or by a guardian appointed for that purpose. No appointment can be made, until after service of the summons as directed in this code.

On whose ap plication ap

pointment to be made.

come lunatic

tion his commit

§ 88. The guardian to defend may be appointed on the application of any friend of the defendant, or on that of the plaintiff.

§ 89. Where a party is judicially found to be of unsound. If party he mind during the pendency of an action, the fact being stapending the acted on the record, if he is plaintiff, his committee may be tee may be join joined with him in the action, as such. If he is defendant, the plaintiff may, upon ten days' notice thereof to his committee, have an order making the committee a defendant also.

ed.

§ 90. No judgment can be rendered against a prisoner in No judgment the penitentiary, until after a defense made for him by his in penitentiary attorney, or, if there is none, by a person appointed by the

against prisoner

without defense. court to defend for him.

attorney defend

$91. A guardian, or attorney, appointed on the applicaGuardian or tion of the plaintiff, to defend for an infant, person of uning for an infant, sound mind, or prisoner, shall be allowed a reasonable fee son of unsound for his services, to be paid by the plaintiff, and taxed in

lunatic or per

mind to be paid.

the costs.