9 Serg. & Rawl., p. 142; Ward vs. Johnson, 13 Mass., p. 148. When the cause of action is joint, and not joint and several, the entire cause of action is merged in the judgment.-See, also, Pierce vs. Kearney, 5 Hill, p. 86; Taylor vs. Claypool, 5 Black., p. 557; Brady vs. Reynolds, 13 Cal., p. 33. 6. ADMINISTRATOR NOT JOINED WITH SURVIVOR ON SEVERAL CONTRACT.-In cases of joint and several contracts, an administrator cannot be joined with the survivor, for one is charged de bonis testatoris, and the other de bonis propriis.-Humphreys vs. Crane, 5 Cal., p. 173. 7. JUDGMENT IN SUIT ON JOINT AND SEVERAL BOND.-In an action upon a joint and several bond, where all the persons who sign it are made defendants in the complaint, the plaintiff may go to trial, if he elects so to do, before all the defendants are served, and may dismiss as to some of the defendants, and take judgment against the others.-People vs. Evans, 29 Cal., p. 429. 8. WHEN A BOND IS JOINT AND NOT SEVERAL.A bond in this form: Know all men that we, A. as principal, and B., C., and D. as sureties, are bound unto the people in the several sums affixed to our names, viz: B., in the sum of ten thousand dollars; C., in the sum of five thousand dollars; D., in the sum of three thousand dollars, etc., for the which payment, well and truly to be made, we severally bind ourselves, our heirs,' etc.- and signed and sealed by the obligors, is held to be an instrument embracing several distinct obligations, each of which is a joint obligation of the principal and one surety, and not joint and several.-People vs. Hartley, 21 Cal., p. 585. 9. SUIT ON SEPARATE INDEMNIFYING BONDS FOR THE SAME ATTACHED PROPERTY.-A Sheriff seized goods on two attachments for different plaintiffs. The plaintiffs in the attachment suits executed to the Sheriff separate indemnifying bonds. It was decided that there is no joint liability between the plaintiffs to the Sheriff. Each bond must be sued on as an independent obligation.-White vs. Fratt, 13 Cal., p. 521. 10. ACTION ON NOTE SECURED BY MORTGAGE.-The maker executes and delivers to the same person a promissory note, and a mortgage to secure the same, and this person indorses the note and assigns the mortgage to a third person, who brings an action on the note and to foreclose the mortgage. It was held that Arnended 1878-4. Tenants in the indorser and maker of the note were properly joined as defendants.-Eastman vs. Turman, 24 Cal., p. 379. 384. All persons holding as tenants in common, joint tenants, or coparceners, or any number less than defending all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protection of the rights of such party. actions. NOTE.-Stats. 1867, p. 62. 385. (§ 16.) An action or proceeding does not 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 the death, marriage, or other disability of a party, the Court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action or proceeding may proceeding may 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 or proceeding. NOTE.-1. CONSTRUCTION OF SECTION.-The rule as to the right of a third person under our statute to be made a party, where he is directly interested in the subject matter in litigation, as it existed upon this subject; both at law and in chancery, has been altered by the Practice Act of this State, by the 16th and 17th sections of which it is provided that, in case of the transfer of any interest in the action during the pendency the suit may 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. Again, it is provided that the Court shall order parties to be brought in, if there cannot be a complete determination of the action without prejudice to their interests.-Brooks vs. Hager, 5 Cal., p. 282. 2. JUDGMENT FOR OR AGAINST AS PARTY DECEASED.-See Sec. 669, post; see, also, Judson vs. Love, 35 Cal., p. 464. 3. TRANSFER OF CAUSE OF ACTION IN EJECTMENT.The transfer by the plaintiff in ejectment of the de manded premises pending the action is a transfer of the cause of action within the provisions of this section, and the action may be continued in the name of the original plaintiff.-Moss vs. Shear, 30 Cal., p. 468. 4. TRANSFER OF PLAINTIFF'S INTEREST IN CAUSE OF ACTION.—If the plaintiff has conveyed the demanded premises pending ejectment, the Court, by the consent of both the plaintiff and vendee, may make an order continuing the action in the name of the original plaintiff.-Moss vs. Shear, 30 Cal., p. 468. 5. PLAINTIFF MAY RECOVER AFTER SALE OF LAND. If the action is continued as above stated in the name of the original plaintiff, notwithstanding the premises have been transferred by him, he may recover judgment for both possession and the rents and profits.Moss vs. Shear, 30 Cal., p. 468. 6. DEATH OF ONE OF SEVERAL RESPONDENTS.-If one of several respondents died before notice of appeal was filed, a motion to dismiss the appeal as to him must be granted. Shartzer vs. Love, 40 Cal., p. 96; Judson vs. Love, 35 Cal., p. 463. 7. HUSBAND CANNOT RECOVER HOMESTEAD ON DEATH OF WIFE.--If the wife die after an action has been commenced by herself and husband for the homestead, a recovery by the husband is defeated, although his right to recover existed at the time when the action was begun.--Gee vs. Moore, 14 Cal., p. 472, overruling Taylor vs. Hargous, 4 Cal., p. 273; Poole vs. Gerard, 6 Cal., p. 71; Revalk vs. Kraemer, 8 Cal., p. 73. 8. DEATH OF PARTY TO A DIVORCE SUIT ABATES ACTION-PARTITIONER'S COMMUNITY PROPERTY.-A supplemental decree in the divorce suit, after death of husband, under which the plaintiff claims to be the owner of the whole land sued for, was, in our judgment, null and void, as against the heirs at law. By the death of the husband the suit abated for all the purposes of further judicial action therein on the subject of partitioning the common property, and the Court had no jurisdiction to adjudge that the property should be sold and the proceeds divided without a revivor as to the heirs. No such revivor was had, and the interests of the heirs was, therefore, unaffected by the supplemental decree, and the transactions under it.-Ewald vs. Corbett, 32 Cal., p. 499. 9. WHERE, DURING ACTION IN NAME OF HUSBAND AND WIFE, THEY ARE DIVORCED.-An action began by husband and wife in their joint names, does not abate in consequence of a divorce.-Calderwood vs. Pyser, 31 Cal., p. 335. 10. CONVEYANCE OF DEMANDED LAND PENDING SUIT.-The conveyance of the demanded premises, by the plaintiff in ejectment, pending the suit, to a person not a party to the action, does not necessarily defeat the action. Moss vs. Shear, 30 Cal., p. 468; Barstow vs. Newman, 34 Cal., p. 90. 11. CONTINUATION OF ACTION IN NAME OF EXECUTOR ON DEATH OF PARTY.-What is a sufficient suggestion of death of principal, and a revival of the cause in the name of the executor.--See Gregory vs. Haynes, 21 Cal., p. 443. 12. DEATH OF APPELLANT AFTER ARGUMENT OF HIS CASE ON APPEAL.-The death of an appellant after argument of his case upon appeal,' does not constitute any ground for delaying a decision or departing from the ordinary course of procedure, except as to the entry of the judgment which may be rendered. The entry should be of a day anterior to the appellant's death.-King vs. Dunn, 21 Wend., p. 253; Campbell vs. Mesier, 4 Johns. Ch., p. 335; Miller vs. Gunn, 7 How. Pr. Rep., p. 159; Black vs. Shaw, 20 Cal., p. 69, 13. DEATH OF APPELLANT PREVIOUS TO ARGUMENT ON APPEAL.-The rule is different from that above stated if the death occurs previous to the argument; in that event further proceedings can only be had upon leave given after suggestion of the death is made.Black vs. Shaw, 20 Cal., p. 69. 14. DEFENDANTS CANNOT CHANGE PLAINTIFFS.— The substitution of one person as plaintiff in place of another, in case of a transfer of the cause of action, is a matter which the defendant cannot move. It concerns only the plaintiff, or the person to whom the transfer is made. If the defendant desires to take advantage of the transfer for any cause, he must do so by supplemental answer. As against a defendant, a plaintiff has a right to stay in Court till his case has been tried.-Hestres vs. Brennan, 37 Cal., p. 385. 15. MODE OF SHOWING THE DEATH OF A PARTY AND SUBSTITUTION OF HIS LEGAL REPRESENTATIVES. The death of a party pendente lite should be made known by suggestion of that fact to the Court, and the action continued by order of the Court against the representative of the party deceased, of which he must be duly notified before he can be affected by further proceedings in the action.-Judson vs. Love, 35 Cal., p. 464. 16. SUGGESTION OF THE DEATH OF PARTY-WHEN IT MAY BE MADE.-It is regular and proper to suggest the death of a party to an action in any Court, and at any stage of the proceedings. And the death of a party 17. DEATH OF THE DEFENDANT DURING THE 18. JUDGMENT AGAINST ADMINISTRATOR ENFORC- 19. PURCHASE OF PROPERTY PENDING AN ACTION TO RECOVER POSSESSION OF IT.-One who buys land during the pendency of an action to recover possession of it, in which his grantor is a defendant, may thereafter continue the defense in the name of his grantor, or may cause himself to be substituted in his place.-Mastick vs. Thorp, 29 Cal., p. 444. person may bo substituted 386. (§ 658.) A defendant against whom an action Another is pending upon a contract, or for specific personal property, may, at any time before answer, upon affidavit that a person not a party to the action makes against him, and without any collusion with him, a demand upon the same contract, or for the same property, upon notice to such person and the adverse party, apply to the Court for an order to substitute such person in his place, and discharge him from liability to either party, on his depositing in Court the amount claimed on the contract, or delivering the property, or its value, to such person as the Court may direct; and the Court may, in its discretion, make the order. 32-VOL. I. for the defendant. |