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ants, and whom to join as plaintifis. No person can be affected by a judgment, but a party, or one who claims under him. This rule will make the plaintiff bring in all the parties whom he wishes to affect. The judgment, as we have provided by section 161, can be given for or against any one

more of the plaintiffs or defendants. This will save the plaintiff from the hazard now encountered in bringing in too many parties, except that of paying costs.

Upon the whole we venture to express our belief, that we have given rules on the subject of parties, which will remove many evils now existing, and which will be found neither too stringent for suitors, nor too loose for the purposes of sub

stantial justice. $ 91. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 93.

§ 92. In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any defence existing at the time of the assignment; but this section shall not apply to a promissory note or bill of exchange.

This is intended to protect any right of set-off or otherwise, which one party to a contract may have against the o'her, though an assignment be made. It is conformable in spirit to the act passed in 1835, (Laws of 1835, ch. 19) providing

for a suit by the assignee, in case of the death of the assignor. § 93. An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may suc without joining with him tho persons for whoso benefit the suit is prosecuted.

$ 94. When a married woman is a party, her husband must be joined with her except that,

1. When the action concerns her separate property, she may sue alone :

2. When the action is between herself and her husband, she may sue or be sued alone.

$ 95. When an infant is a party, he must appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a judge thereof.

§ 96. The guardian shall be appointed as follows:

1. When the infant is plaintiff, upon the petition of the infant, if he be of the age of fourteen years, or if under that age upon the petition of some other party to the suit, or of a relative or friend of the infant:

2. When the infant is defendant, upon the petition of the infant, if he be of the age of fourteen years, and apply within twenty days after the service of the summons, If he be under the age of fourteen, or neglect so to apply, then, upon the petition of


other party to the action, or of a relative or friend of the infant.

§ 97. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title.

This will enable a surviving partner and the representative of a deceased partner, to sue together, whenever desirable.

$ 98. Any person may be made a party defendant, who has an interest in the controversy, adverse to the plaintiff.

This will enable a plaintiff to exhaust in, ore suit, his remedies against a surviving partner, and the representative of a deceased partner. Many other cases to which it applies, will readily suggest themselves.

$ 99. Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one, who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint.

Conformable to rule, prescribed by the supreme court, U. S., for suits in equity.

$ 100. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same action, at the option of the plaintiff.

Conformable to the present statute authorizing suits against the different parties to bills of exchange and promissory notes. Laws of 1832, Chap. 276.

101. No action shall abate by the death, marriage 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, marriage, or other disability of a party, the court, on motion, at any time within one year thereafter, 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 shall be 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.

This will save the necessity of a new or supplemental action. A statute of similar import in respect to the abatement of actions in the couris of the United States, by death, has existed since 1789.

§ 102. When a complete determination of the controversy cannot be had without the presence of other parties, the court may order them to be brought in, by an amendinent of the complaint, or by a supplemental complaint, and a new summons


of the place of trial of Civil Actions.

SECTION 103. Certain actions to be tried where the subject arose or is situated.

101. Olher actions, where any party resides.
105. Actions may be tried in any county unless defendant objecte.

The law of 1817, changed in some respects the pre-existing law as to the place of trial, and of venue, as the distinction has since been drawn by the courts. In the class of actions usually denominated transitory, it r:quires the trial to be had in a county where the parties or some of them reside; but where the plaintiffs are not resident in the state, it follows the Revised Statutes, and permits the trial to be had in the county where the venue shall be laid. The subsequent part of the section of that act, (sec. 46,) makes provision for the case where the venue is not laid as required by the section, whereas the section nowhere requires the venue to be laid in any particular county. Some error has manifestly occurred which deprives the latter part of the section of the effect it was intended to have. We have retained substantially the provisions intended by that act, and have further provided, that an action may be tried, wherever the plaintiff shall designate the place of trial in bis complaint, unless the defendant shall, before the time for answering expires demand that it be tried in the proper county, as required by the frst two sections of the chapter.

This will enable the trial to be had in New York, for lands in Buffalo, where both parties desire it. We see no good reason for imposing a restraint upon the convenience of the parties in this respect. The plaintiff and defendant might both reside in New-York, or their witnesses might reside there, or other causes might exist, to make that city the most convenient place of trial for all concerned.

§ 103. Actions for the following causes, must be tried in the county where the cause thereof arose, or in which the subject of the action or some part thereof is situated, subject to the power of the court to change the place of trial, in the cases provided by statute.

1. For the recovery of real property or of an estate or interest therein, or for the determination, in any form, of such right or interest, and for injuries to real property:

2. For the partition of real property: 3. For the foreclosure of a mortgage of real property:

4. For the recovery of personal property, distrained for any cause :

5. For injuries to the person or personal property:

6. For the recovery of a penalty or forfeiture imposed by statute ; except, that when it is imposed for an offence committed on a lake, river, or other stream of water, situated in two or more counties, the action may be brought in any county bordering on such lake, river or stream, and opposite to the place where the offence was committed:

7. Against a public officer or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person, who by his com

[P. & p.)


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