31. In proceedings in insolvency.-Any creditor of an insolvent debtor has the right to be made a party for the purpose of opposing the discharge, or obtaining his proportion of the assets, whether he be named in the assignment or not. Lambert v. Slade, 4 Cal. 337. PARTNERS, LIABILITY OF. 32. A consignment of merchandise was made to defendants as partners; after the dissolution of the partnership, two sales of a portion of the merchandise were made-one by each partner, who severally received the money: Held, that the partnership continued for the purpose of fulfilling engagements, and the defendants were jointly liable. Johnson v. Totten, 3 Cal. 343. 33. The plaintiff consigned goods to McL., who sold them and received the proceeds. McL. was the partner of a firm, (and one of the defendants) which being in want of funds proposed to another partner, B., (also a defendant) to loan the money of plaintiff, in his hands, for the purposes of the firm, to be repaid when funds of the firm could be had; which was consented to, and the money advanced under this arrangement. The firm was sued for the money so loaned: Held, that there was no privity between the plaintiff and defendants on which to establish the relation of debtor and creditor; that McL., as agent of plaintiff, had no authority to loan the money to the defendants, and it can only be regarded as an advance by one partner to the partnership concern, for which they are liable to him, and that McL. alone is liable to plaintiff. Evans v. Bidleman, 3 Cal. 435. 34. Where the plaintiff had no knowledge, until the trial, that a third party was a secret partner of the defendant, the nonjoinder of such third party cannot be objected to by the defendant. Tomlinson v. Spencer, 5 Cal. 291. 35. The plaintiff alleged that Hull & Co. were indebted to him, but failed to prove that there were others in company with Hull in the transaction: Held, that the words "and company" might be treated as surplusage, and the action proceed as against Hull alone. Mulliken v. Hull, 5 Cal. 245. 36. A & B were in partnership. B took forcible possession of the partnership property and sold it to C & D : Held, that A cannot maintain an action for the partnership property and profits against B, C and D. Mason v. Tipton, 4 Cal. 276. 37. The personal representative of a deceased partner cannot be joined as defendant with a surviving partner in an action for a partnership debt, where the complaint does not show the plaintiff's inability to collect from the survivor. Such a complaint is bad as against the representative on his separate demurrer, on the ground that it does not state facts sufficient to constitute a cause of action against him. Voorhies v. Childs, 17 N. Y. (3 E. P. Smith) R. 354. 38. The creditors of a firm having secret partners have the right, but are not compelled, to join such partners as defendants in an action against the firm. 1 B. & Adol. 398, 1859; Brown v. Birdsall, 29 Barb. 549. 39. In an action against partners, a dormant partner, unknown to the plaintiff at the time of the making of the contract, need not be joined as defendant, although he was known to the plaintiff before the commencement of the action. N. Y. Dry Dock Co. v. Treadwell, 19 Wend. 525; Clarkson v. Carter, 3 Cow. 84; Clark v. Miller, 4 Id. 628; Mitchell v. Dall, 2 Har. & Gill. 159, 171; Hurlbert v. Post, 1 Bosw. 28. § 14. Parties in interest, when to be joined. When one or more may sue or defend for the whole. Of the parties to the action, those who are united in interest shall 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; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the Court, one or more may sue or defend for the benefit of all. N. Y. Code, § 119, J. P.; Van Sant. Eq. Pl. 76–80. 1. The fourteenth section of the Practice Act was intended to apply to suits in equity, and not to actions at law. Andrews v. Mokelumne Hill Co., 7 Cal. 330. 2. The rule requiring all persons materially interested to be made parties to a suit is dispensed with, when it is impracticable or very inconvenient, as in cases of joint associations composed of numerous individuals. Gorman v. Russell, 14 Cal. 531; Van Schmidt v. Huntington, 1 Cal. 55. 3. When one partner sues for an injury to the partnership property, and makes his copartner a defendant for want of his consent to join as plaintiff, the recovery must be entire for the whole injury. Query: Whether such nonjoinder of parties plaintiff is permissible. Nightingale v. Scannell, 6 Cal. 506. The law will not tolerate a division of a joint right of action into several actions. Id. 4. In an action upon a bond or written undertaking, there can be no constructive parties jointly liable with the proper obligors. Lindsay v. Flinket, 4 Cal. 88. 5. All the parties having a part interest in the subject matter should be joined as plaintiffs, but the defect must be taken advantage of by answer or apportionment of damages, where it does not appear on the face of the complaint. Whitney v. Stark, 8 Cal. 514; 6 Bosw. 625. 6. Where four of the trustees of a private corporation, owning sufficient stock to control its business, conduct the business in a grossly negligent manner, systematically disregarding the by-laws, keeping no account of receipts and expeuditures, failing to pay their own assessments without any excuse: Held, that a stockholder may sue in equity for an account, making the corporation and said trustees alone parties-no objection being taken that all the stockholders were not parties -and the trustees will be compelled to make good any loss occasioned by their gross negligence or willful misconduct. Neall v. Hill, 16 Cal. 145. 7. If a new action by the defendants in a judgment can be maintained to declare void the judgment, (4 How. Pr. 350; 8 Id. 416) it cannot be without joining, as plaintiff's or defendants, all the defendants in the judgment. They would be necessary parties if the action were maintainable. Bowers v. Tallmadge, 16 How. 325. 8. Section one hundred and nineteen of the Code, which provides that one or more may sue or defend for the benefit of the whole, does not apply to the case where the right to assert or protect which the suit is brought is not one which exists against them all, or the obligation, which it is sought to enforce, is not common to all. Thus, where the complaint showed that there were several kinds or classes of bonds issued by the corporation defendant, and that these bonds were held by persons who had received them for different considerations and under various circumstances, and alleged in respect to the sole defendant prosecuted with the corporation, that he was probably the largest holder of such bonds as are without consideration, or otherwise invalid, and that he was made a party as representing that class of persons: Held, that the suit was defective for want of the others as parties. These various bondholders could not be bound by a judgment to which they were not parties, merely because the person who was made a defendant was a holder of bonds which were invalid for some of the various causes affecting them to a greater or less extent. Reid v. The Evergreens, 21 How. 319. 9. The complaint alleged that the plaintiffs and one of the defendants were a copartnership, and the defendants were another copartnership; that the latter firm was indebted to the former firm on an account stated, on which it demanded a recovery; and that the reason why the defendant, who was member of both firms, was made defendant only, was that he had refused to join as plaintiff: Held, that the action was maintainable. 1. Under the Code it is no objection that one of the parties was a member of both firms. It is enough in such case that the proper parties are before the Court, whether as plaintiffs or defendants, to enable it to pronounce judgment according to the facts. Cole v. Reynolds, 4 E. D. Smith (18 N. Y.) 75; Bishop v. Edmiston, 13 Abb. 346. 10. Where the owners of a vessel were parties united in interest within the meaning of section one hundred and nineteen of the Code: Held, that all should join as plaintiffs in the prosecution of a demand growing out of such ownership. The plaintiffs in this case not having taken the requisite steps, under section one hundred and nineteen, to make one of them a defendant in the action, held that they could not make one of the part owners a party defendant, and omit to join him as a party plaintiff with themselves. Bishop v. Edmiston, 13 Abbott, 346. § 15. One action may include different parties on obligations, etc. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same or separate instruments, may all or any of them be included in the same action, at the option of the plaintiff. N. Y. Code, § 120, J. P.; Van Sant. Pl. 169. 1. This section is in derogation of the old rule of common law, that one or all, and not any intermediate number, may be sued. Stearns v. Aguirre, 6 Cal. 183. 2. In all cases of joint and several contracts the plaintiff may elect whether he will sue the defendants severally or jointly. Id. 176. 3. To create a several liability express words are necessary. Brady v. Reynolds, 13 Cal. 31. 4. Where a promissory note was made payable to S., and previously to its delivery to the payee, was indorsed for the accommodation of the maker by H. and brother and defendant, upon an agreement of the indorsers with each other that each would become surety if the other would: Held, that the indorsers were guarantors, and were jointly and not severally liable in a suit by the payee, or a third person taking the note after maturity. Id. 5. Where a Sheriff seizes goods on two attachments in behalf of different plaintiffs, and the property being claimed by a third person, the plaintiffs in the attachment suits execute to the Sheriff separate indemnifying bonds, there is no joint liability between the plaintiffs to the Sheriff. Each bond must be sued on as an independent obligation. White v. Fratt, 13 Cal. 521. 6. Under section one hundred and twenty of the Code of Procedure, which provides that 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. A joint action lies against a lessor and a surety, who is a party to the lease and therein guaranties the performance of the lessor's covenants. Charman v. Plass, 23 N. Y. 286. 7. A joint action lies under section one hundred and twenty of the Code against a lessor and one who is a party to the lease, and therein guaranties the performance of the lessor's covenants. Id. § 16. Action, when not to abate by death, marriage or other disability. 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 the 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 be continued in the name of the original party, or the Court may allow the person to whom the transfer is made te be substituted in the action. N. Y. Code, § 121, J. P. 1. The sixteenth and seventeenth sections of the Practice Act, and the seventysecond, seventy-third and seventy-fourth sections of the amendments of 1854 to the Practice Act, give a party the right to intervene in an action in case of the transfer of any interest during the pendency thereof, or where he is directly interested in the subject matter in litigation, and this can be done either before or after issue has been joined in the case. Brooks v. Hager, 5 Cal. 281. 2. The death of the wife, after suit brought by herself and husband for the homestead, defeats a recovery by the husband, though the right to recover existed at the commencement of the suit. Gee v. Moore, 14 Cal. 472. 3. In a suit in chancery for partition, one of the defendants died after the bill had been taken as confessed as against him. The suit was prosecuted to judgment without bringing in his heirs, (who were not parties to the suit) and after sale under the judgment and delivery of the master's deed, an order was made reviving the suit against his heirs, who thereafter made applications to the Court in relation to the disposition of the proceeds: Held, that the heirs were not bound by the decree. By the death of their ancestor the action became defective, and the title which he had at the time of his death could not be affected without bringing in those who succeeded to his interests. Russell v. Sharp, 1 Ves. and B. 500; Randall v. Mumford, 18 Ves. 424; Story's Eq. Pl. §§ 329, 331, 354, 369; Hind's Ch. Pr. 46; 1 R. L. 514, 488; Washington Ins. Co. v. Slee, 1 Paige, 365; Kelly v. Hooper, 3 Yerg. 395; Garr v. Gomez, 9 Wend. 649; Pet. 482, 487; Vroom v. Ditmas, 5 Paige, s28; Williams v. Kinder, 4 Ves. Sr. 487. 4. In an action under the Code, to recover the possession of land, corresponding to the former action of ejectment, the death of a sole defendant before the verdict abates the action; and the Court has no power to authorize the continuance of the action, by supplemental complaint or otherwise, against his heirs at law. Mosely v. Mosely, 11 Abbott's Pr. 105. 5. If a sole defendant die pending an action, after issue joined therein and before trial, his personal representatives have no right to an order requiring the plaintiff to continue the action against them as the defendants therein. In such a case the plaintiff, at his election, may require it to be discontinued. Souillard v. Dias, 9 Paige, 393; Keene v. La Farge, i Bosw. 671; 16 How. Pr. 377. 6. An order of revivor, in the name of A "as executor" of a deceased plaintiff, standing in full force at the time of the trial, is conclusive to show that the action has been properly revived, and that A can recover all that the testator might have recovered. Underhill v. Crawford, 29 Barb. 664; 18 How. Pr. 112. 7. Section one hundred and twenty-one of the Code, which provides that in case of a 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, contemplates a transfer other than by death-contemplates an existing, pending action-and the substitution of one person in the place of another; not a case where the action has abated by the death of a party. Kissam v. Hamilton, 20 How. Pr. 367. 8. If a party dies pending a motion, the decision of which will not finally determine the action, an order of revival must be had before the decision of such motion can be entered. Reed v. Butler, Id. 128. § 17. Court, when to decide controversy, or to order other parties to be brought in. 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 complete determination of the controversy cannot be had without the presence of other parties, the Court shall order them to be brought in. N. Y. Code, § 122, J. P.; Van Sant. Eq. Pr. 82. 1. The provisions of sections sixteen and seventeen sustained. Brooks v. Thayer, 5 Cal. 281. 2. It is the duty of a Court of Equity, when all the parties to a controversy are before it, to adjust the rights of all, and leave nothing open for future litigation, if it can be helped. Ord v. McKee, 5 Cal. 515. 3. When a husband sues to recover a homestead, and the wife does not appear in the action, the Court should order her to be brought in, so that a final decree may be binding upon them. Marks v. Marsh, 9 Cal. 96. 4. The right to demur was given to enable the Court to carry out the provisions of the foregoing section. Warner v. Uncle Sam, 9 Cal. 697. 5. A Court of Equity will not permit litigation by piecemeal. The whole subject matter and all the parties should be before it, and their respective claims determined once and forever. Wilson v. Lassen, 5 Cal. 114. 6. The receiver of a judgment debtor brought an action against a grantee of the latter, to set aside his conveyance as fraudulent, without making the debtor a party. The defendant did not raise the objection by demurrer or answer, nor upon the trial: Held, on appeal, that the debtor was an indispensable party, whose absence could not be waived by the defendant. It was the duty of the Court to cause him to be brought in. Judgment for plaintiff reversed, with leave to amend by adding the debtor as a party. Code, § 122; 4 Paige, 75; 7 Barb. 221; 1 Pet. 138, 139; 2 Duer, 663; 3 Id. 121, 1859; Strover v. Brainard, 29 Barb. 25. 7. In an action by a creditor of a corporation for the recovery from a stockholder of a debt of the corporation, omission to make the corporation a party is not ground for demurrer. It is only where the parties are united in interest that they must be brought in by the plaintiff. In other cases, if necessary, the Court may order such to be made parties. Perkins v. Church, 31 Barb. 84. 8. The Court will not order new parties defendant to be brought in against the will of the plaintiff, unless their presence is necessary to the determination of the action. Sawyer v. Chambers, 11 Abbott's Pr. R. 110. 9. A judgment, declaring the rights of parties in a fund in Court, reversed because persons who made claims upon it were not made parties. Valentine v. Wetherill, 31 Barb. 655. 10. The Court will not grant an order substituting third parties as defendants in place of the original defendants, unless the facts clearly justify the substitution, and the proof is satisfactory that the change of parties can work no real prejudice to the plaintiff. If the proposed defendants have not appeared, upon the motion, and made their claim, or signified to the Court its particular character, so as to enable the Court discreetly to judge whether the plaintiff will not be prejudiced by the substitution of parties, and have not disclosed their willingness to assume the position of real defendants, nor their pecuniary ability to respond for the costs of an unsuccessful litigation, the motion should be denied, especially if they are nonresidents. Lund v. Seaman's Bank, 20 How. Pr. 461. TITLE II. OF THE PLACE OF TRIAL OF CIVIL ACTIONS.* SEC. 18. Actions to be tried where subject matters situated. * STATUTES OF 1854, 153; WOOD'S DIGEST, ART. 1378. An Act Relative to Transferring Actions and Proceedings from one Court to another Court. Passed May 6th, 1854. 1. If an action or proceeding is commenced or pending in a Court, as is hereinafter mentioned, and the Judge or Justice thereof is by law disqualified from acting as such, or if for any other cause the Court orders the place of trial to be changed, it shall be transferred for trial to a Court the parties may agree upon, by stipulation in writing, or made in open Court |