contract, and not assigned by indorsement in writing, the assignor must be made a defendant to answer as to the assignment, or his interest in the subject of the action. This is but the recognition of a familiar principle of equity jurisprudence which may be stated thus: Although under the former practice, an action at law would not lie in the name of the assignee, upon a promissory note or bill of exchange not transferred by indorsement, nor upon an open account, or other chose in action, however transferred, yet if the transfer was in good faith and for value, the title of the assignee was valid in equity, and if in the case of a note or bill, the assignor refused to permit him to prosecute the action in his name, for the benefit of the assignee, he could bring his bill in equity against the assignor and compel him to permit such an action; or whether the claim be a note, or bill, or account, or other chose in action, the assignee could bring his suit in equity directly against the debtor. But in all such cases, he must make the assignor a defendant, to answer concerning his interest in the claim.2

$22. In actions concerning real estate, who to be made defendants. In actions to recover possession of real estate, or to quiet title thereto; to procure partition thereof, or to foreclose a mortgage or enforce a lien thereon, every person who either has or claims any right or title thereto, or lien thereon, should be made a party, so that he may either set up his title or claim or be barred. Thus, in an action for possession, the party in possession, whatever his claim, together with all persons claiming title or right of entry or action out of possession, should be made defendants. And so in the other cases enumerated, a like rule prevails. And the penalty for failure to make all parties interested defendants is, that a party having a right or title is not in general bound by the judgment in a suit to which he is not a party. It is true that in an action against the tenant in possession, the landlord is bound, yet to save any question as to the relation of landlord and tenant, it is the better way to join the tenant and the alleged landlord or claimant of the fee, as defendants. Under the code, an action lies in favor of a remainder man, or reversioner, against any person who denies or defames his Story's Eq. Pl. 87, § 72.

12 R. S. (1876) 35, § 6.

title, to quiet his title pending the particular estate. In this class of cases, of course, the tenant in possession of the particular estate would not be made a defendant unless he was the party denying the expectant title, for unless he did set up title to the land or deny the estate of the plaintiff in expectancy, he would not be a proper party defendant.

§ 23. General statutory provisions as to parties. The general inquiry, who are to be plaintiffs and who are to be defendants, having been substantially answered, it is proper to allude to one or two general provisions of the code on the subject: 1. It is provided that the court may decide any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be joined as proper parties. And when, in an action for the possession of personal or real property, a person not being a party to the action, but having an interest in the subject matter thereof, makes application to the court to be made a party, it may order him to be made a party by the proper amendment.1 The first proposition in this section of the code, though a little obscure, is a mere announcement of the well established rule of the chancery practice, under which all persons having an interest in the controversy must be complainants or defendants, and applies to cases formerly cognizable in courts of equity, and simply means that the court will, when the proper parties to such an action are not before it, let them be introduced as parties by amendment. And under other provisions of the code, as will appear hereafter, in actions which would formerly have been common law actions, where a defect of parties is pointed out in the progress of the case, the plaintiff may amend and introduce new parties by leave. of court. The second provision of the section is an innovation, but provides a simple and easy method, when it is practicable, of settling conflicting claims to property in litigation, without mul

12 R. S. (1876) 43, § 22; Luark v. Malone, 34 Ind. 444; Scobey v. Finton, 39 id. 276.

'Story's Eq. Pl. § 72 et. seq.; see also, 2 R. S. (1876) 556, § 185, for a special

statutory provision recognizing this principle in actions against heirs, devisees and distributees for the debt of the ancestor.

tiplicity of suits, by admitting new parties, when practicable, in the discretion of the court; and where a party, having a joint interest with a plaintiff bringing an action, refuses to join with him in the action, he may be made defendant.1

§ 24. Substitution of parties in interpleader. A defendant against whom an action is pending, upon a contract or for specific real or personal property, at any time before answer, upon affidavit that some other person, not a party to the suit, is claiming the same, without collusion with him, may, upon notice to such person and the adverse party, apply to the court for an order substituting such person in his place, and discharging him from liability, and upon his depositing in court the amount of the debt, or delivering the property or its value to such person as the court may direct, the court may in its discretion make the order. This system provides a simple and easy method of doing what required under the old system a separate suit in equity, known as a bill of interpleader. When the order is entered, the original defendant is discharged, the interpleading defendant is introduced, the subject matter is in the custody of the court, and the issues are joined and the litigation continues between the parties, till their rights are determined. The provision in this section only applies to cases where suit has been brought. Before suit, the debtor or holder of property, in cases where the debt or property held is the subject of conflicting claims, still has his right to bring his action in the nature of a bill of interpleader. And though in actions for the possession of real property the tenant is the proper party, if there be one in possession, still the real owner may be substituted, on notice and motion."

4

§ 25. General suggestions. Joint debtors or creditors all to sue or be sued. A few points not very explicitly specified in the code may require further elucidation here. It is quite clear, upon principle, that where joint creditors or debtors sue or are sued, they ought all to join or be joined as plaintiffs, or defendants, because, in the one case, no one of the joint creditors should be

12 R. S. (1876) 40, § 19.

*2 R. S. (1876) 43, § 23.

Story's Eq. Pl. 348-50, §§ 291-2; 3

Daniell's Ch. Pr. and Pl. 1753, ch. 32.

5

42 R. S. (1876) 250, § 592.

" Id. 251, § 593.

allowed to collect that which belongs to him and others, and, on the other hand, the creditor should not be allowed to compel one of several joint debtors to pay the whole of that which should be shared by others.

§ 26. Injury to rights of several by one joint act. In further illustration of some of the rules already mentioned, it may be stated that, when several rights of two or more persons are violated, even by a single act of a third person, they cannot be joined in an action, because there is no joint cause of action.

27. Joint wrongdoers may be sued jointly or severally. Where, however, there is a wrong committed by the joint action of two or more persons, the wrongdoers may all be joined in one action, or the injured party may sue any one or more separately, but a recovery and satisfaction of a judgment against any one will be a bar to any further action against any other for the same joint act.1

§ 28. Joint action for act of servants of several. And so, where the injury results from the joint act of the servants of several persons, although there may be no concurrence on the part of the masters, the result is the same; for within the scope of his authority, the act of the servant is the act of his master; and, by logical sequence, the joint act of several servants is the joint act of all the masters. So in case of collision of railroad trains or carriages, where there is negligence in conducting or driving both trains or carriages, as the case may be, the party injured may sue one or both companies or owners, for the injury caused by such joint negligence, as the action will lie either against both jointly or either separately."

$ 29. Joint action will not lie for injury by several dumb animals. But if the dumb animals of two or more persons, without any concurrence of the owners, shall produce a joint injury, in cases where the owner is held liable, still there is no joint right of action against them; for, though all joint tort

1 A final judgment and execution, or an order for an execution against one of several joint tortfeasors, is a discharge of all. Allen v. Wheatley, 3 Blkf. 332; Fitzgerald v. Smith, 1 Ind. 310; Snodgray v. Hunt, 15 Ind. 274; 9

Porter, 169; 20 Ala. 320; Fleming v. McDonald, 50 Ind. 278, and cases cited on p. 280.

2 Wharton on Negligence, § 395; 20 N. Y. 292; Barnett v. 3d. Av. R. R. 45 id. 628.

feasors may be sued jointly or severally, yet they cannot become such without the concurrence of their wills. And so where A and B had each a vicious dog, which was permitted, contrary to law, to run at large, and they jointly attacked and worried the sheep of C, who thereby had a right of action, it was held that he could not join A and B in an action, because the ownership of the dogs being several, there was no joint cause of action.' In like manner, a joint action cannot be sustained against the separate owners of cattle, which together break into the inclosure of the plaintiff and destroy his crops; though a different doctrine has been intimated."

$30. Actions for possession or for injury to lands or chattels, who parties. In actions for the possession of land, tenants in common should sue separately, but where the action is for trespass or other injury to the land, they should join, and so in all actions for the possession of, or for injury to personal chattels, the joint owners should join as plaintiffs.

§31. Slander, libel and malicious prosecution. Two or more persons cannot be joined in an action for speaking slanderous words, for such can never be joint; but two or more may be joined as defendants, in an action for a libel, for the act may be joint; as where A writes a libel which is published by B, they may both be joined, and if the same be published in a newspaper, the writer and all the owners of the paper may be joined; and so in an action for malicious prosecution, all or any number of the parties guilty may be joined."'

'Denny v. Corroll, 9 Ind. 72; Russell t. Tomlinson, 2 Conn. 206; Steenburgh . Tobias, 17 Wend. 562; Shearman & Redfield on Negligence, 64.

'Brady v. Ball, 14 Ind. 317. The point was not involved, the only question being whether the owner must be joined, and the court decided in the negative; all more than that is but obiter.

For a very clear and discriminating treatise on the subject of parties to

common law actions, see the first chapter of Mr. Chitty's work on Pleading, 1 Chitty on Pl. 1. The subject of parties in equity is simple and is treated in the works on Chancery Practice. After the student has become familiar with these treatises, the foregoing sections will enable him to see the application of the principles of these systems as far as may be necessary to code pleading.