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must be made in writing.

promise wherebyto take the case out of the operation of this title,

unless the same be contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest.

See section 73, supra and notes.

Amended 1849.

TITLE III.

Of the parties to civil actions.
SECTION 111. Action to be in the name of the real party in interest.

112. Assignment of a thing in action not to prejudice a defence.
113. Executor or trustee may sue without the persons beneficially

interested. 114. When married woman is party, her husband to be joined,

except, &c. 115. Infant to appear by guardian. 116. Guardian, how appointed. 117. Who may be joined as plaintiffs. 118. Who may be joined as defendants. 119. Parties united in interest, when to be joined. When one or

more may sue or defend for the whole. 120. Plaintiff may sue in one action the different parties to com.

mercial paper.

121. Action when not to abate by death, marriage, or other disa.

bility, &c. Proceedings in such case. 122. Court when to decide controversy, or to order other parties

to be brought in.

Action to § 111. [Sec. 91.] Every action must be prosecuted in the be in the name of

name of the real party in interest, except as otherwise provided real party in interest. in section one hundred and thirteen, but this section shall not Amended be deemed to authorise the assignment of a thing in action not 1949, 1851,

arising out of contract.

The payee of a promissory note endorsed the same, and placed it in the bank for collection, and the bank transferred the same to another bank, for the same purpose; held, that the latter had not such a title to the note as to be able to bring an action and collect the same. Van Namee and others agt. The President &c. of the Bank of Troy, 5 How. 161.

But where a draft was owned by the bank, payable to the order of W. B. S., their cashier "for the said bank." and the complaint alleged the fact; held, on demurrer, the action was well brought. The Camden Bank vs. Rodgers & Britton, 4 How. 63; S. C., 2 Code Rep. 45.

Not real party to the action how plead. Bentley vs. Jones and Allen, 4 How. 202; Russell vs. Clapp, 3 Code Rep. 64.

The objection that plaintiff is not the real party, may be taken by demurrer in certain cases. Wallace et al. agt. Eaton et al., 5 How. 99.

Where the defendant succeeds against the nominal plaintiff on the record,

ment of a

tion not to

Amended 1849.

trustee,

sue out

1651.

the real party is liable for defendant's costs. Giles agt. Halbert, 5 How. 319.

As to the assignment of the right of action for tort, see Kellogg vs. Church, 3 Code Rep. 53.

Ş 112. [Sec. 92.] In the case of an assignment of a thing Assign, in action, the action by the assignee shall be without preju- thing in acdice to any set-off or other defence existing at the time of periudice a or before notice of the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before due.

§ 113. [Sec. 93.] An executor or administrator, a trustee of Executor, an express trust, or a person expressly authorized by statute,

beneficially the action is prosecuted. A trustee of an express trust, within interested. the meaning of this section, shall be construed to include a person with whom or in whose name a contract is made for the Amended benefit of another.

This section (first clause) is an enactment of the rule respecting parties, which has always prevailed in courts of equity , and it should be applied, as far as practicable, according to the principles adopted in those courts. Grinnel et al. vs. Schmidt and Balchen, 2 Sand. 706.

§ 114. [Sec. 94.] When a married woman is a party, her When a husband must be joined with her, except that,

1. When the action concerns her separate property, she may to be joinsue alone:

2. When the action is between herself and her husband she 1851. may sue or be sued alone :

But where her husband cannot be joined with her, as herein provided, she shall prosecute or defend by her next friend.

Wife may sue for a limited divorce without next friend. Shore vs. Shore, 2 Sand, 715; Tippel agt. Tippel, 4 How. 346; Contra, Coit vs. Coit, 4 How. 232; S. C., 2 Code Rep. 94.

Where the wife is defendant in an action for divorce she is entitled to an allowance for her support pending the litigation, and to a further sum to defend the action. Hallock agt. Hallock, 4 How. 160.

A next friend is not necessary when the infant wife is not sole plaintiff. Hulbert and wife agt. Newell, 4 How. 93.

woman is a

party, hus

ed.

Amended

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Infant to appear by guardian.

1849.

Guardian

how ap

Amended 1851.

§ 115. [Sec. 95.] When an infant is a party, he must ap

pear by guardian, who may be appointed by the court in Amended which the action is prosecuted, or by a judge thereof,

or a county judge.

The guardian for infant plaintiff must be appointed before summons is issued. Hill agt. Thatcher, 3 How. 407.

For forms of petition for appointment of guardians. 2 Barb. Chanc. Prac. 387-8-9.

Judgment taken against infant defendant on default, will be set aside on motion, without imposing terms. Kellog vs. Klock, 2 Code Rep. 28.

§ 116. [Sec. 96.] The guardian shall be appointed as folpointed. lows:

1. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years, or if under that age, upon the application of his general or testamentary guardian, if he has any, or of a relative or friend of the infant. If made by a relative or friend of the infant, notice thereof must first be given to such guardian, if he has one, if he has none, then to the person with whom such infant resides:

2. When the infant is defendant, upon the application 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 application of any other party to the action, or of a relative or friend of the infant, after notice of such application being first given to the general or testamentary guardian of such infant, if he has one, if he has none then to the infant himself if over fourteen years of age, or if under that age, to the person with whom such infant resides.

Order of appointment of guardian. 2 Barb. Chanc. Prac. 390. See Su.

preme Court, Rules 55, 56, 57, 58. Who may

§ 117. [Sec. 97.] All persons having an interest in the be joined as plaintiffs. subject of the action, and in obtaining the relief demand

ed, may be joined as plaintiffs, except as otherwise provided in this title.

$ 118. [Sec. 98.] Any person may be made a defendant, Amended who has or claims an interest in the controversy, adverse

Who may be joined as defendants.

1849.

united in

when to be

to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein.

$ 119. (Sec. 99.] Of the parties to the action, those who Parties are united in interest must be joined as plaintiffs or defend-interest ants; but if the consent of any one, who should have been joined. joined as plaintiff, cannot be obtained, he may be made a Amended 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 very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend defend for for the benefit of the whole.

$ 120. [Sec. 100.] Persons severally liable upon the same Plaintiff obligation or instrument, including the parties to bills of one action exchange and promissory notes may, all or any of them, be parties to included in the same action, at the option of the plaintiff.

When one or more may sue or

the whole.

cial

paper.

As to what facts should be stated in the complaint. Spelman and others agt. Weider and others, 5 How. 5.

See Session Laws, 1832, p. 489; Session Laws, 1835, p. 248; Miller vs. McCagg et al. 4 Hill, 35; Paine vs. Chase et al. id. 563; Platner vs. John. son et al. 3 id. 476; The Bank of Genesee vs. Field, 19 Wen. 643; Walace et al. agt. Eaton et al. 5 How. 99.

when not

§ 121. [Sec. 101.] No action shall abate by the death, Action marriage or other disability of a party, or by the transfer to abate by

death, marof any interest therein, if the cause of action survive or con-riage, or

bility tinue. In case of death, marriage, or other disability of a party, the court, on motion, at any time within one year angene thereafter, or afterwards on a supplemental complaint may allow the action to be continued by or against his repre- Amended sentative 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.

such case.

1849.

Court
when to de-

to order

An administrator of a deceased plaintiff may have leave to continue the action if the cause survive. Wing vs. Ketcham, 3 How. 385; S. C. Code Rep. 7.

So far as this section is made applicable to suits, commenced before the code took effect and to transfers of interest made before that time is uncon. stitutional. Vrooman agt. Jones, 5 How. 369.

§ 122. [Sec. 102.] The court may determine any controversy tid Persy, or between the parties before it, when it can be done without prejuother par- dice to the rights of others, or by saving their rights, but when a ties to be brought in. complete determination of the controversy cannot be had without Amended the presence of other parties, the court must cause them to be 1849, 1851.

brought in. And when, in an action for the recovery of real or personal property, a person, not a party to the action, but having an interest in the subject thereof, makes application to the court, to be made a party, it may order him to be brought in by the proper amendment.

A defendant, against whom an action is pending upon a contract, or for specific, real, or personal property, may at

any time before answer, upon affidavit, that a person, not a party to the action, and without collusion with him, makes against him a demand for the same debt, or property, upon due 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 of the debt, 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.

There is no part of the code which permits a plaintiff to change the parties in the cause without leave of the court. Russell agt. Spear and Butler, 5 How. 142; Wallace and another agt. Eaton and others, id. 99.

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