manner as an executor represents the estate intrusted to him; and the case of Grover v. Wakeman, 4 Paige 23, and 11 Wendell 187, is referred to as settling the question.

A party, member of a class of persons interested in a particular branch of labor, may maintain a suit in his own name without making the others parties, provided he brings it on behalf of himself, and all others, members of that class. He cannot, however, bring a separate action in his own name only, unless he has an interest in the subject, peculiar to himself, and not enjoyed in common with others -Smith v. Lockwood, 10 L. O. 12; 1 C. R. (N. S.) 319.

Where, at the time of commencing the action, the real defendant is unknown, the plaintiff may sue in a fictitious name, amending when the true one is discovered; sec. 175.-See Pindar v. Black, 4 How. 95.

of

In Fraser v. Greenhill, 3 C. R. 172, it was held that, where an attachment has been issued against a debtor's property under the Code, any other creditors of that debtor may not only be proper parties to the suit, but may apply to the court for the purpose of being brought in as such; and, hard as it may be for a creditor to have his proceedings embarassed by the presence persons who are entire strangers to the main subject of the suit, and whose only claim can be in respect of a surplus, which cannot arise until after satisfaction of his debt, and in which he has therefore no interest whatever; the recent amendment in sec. 122, seems to favor this view, and it may probably be supported.

The question as to who are or are not proper persons to be made parties to an action, either as plaintiffs or defendants, having thus been considered; we now come to the remedial provisions of sec. 122, on the subject of persons, having an interest in the matter in controversy, but who have not been made formal parties to the suit, as inserted for the first time in the measure of 1851.

§ 122. The court may determine 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 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.

The first clause in this section was in the code of 1849, and is little more than declaratory of the inherent powers of the courts, acting as courts of equity, to enforce the bringing in of all proper parties, in relation to the controversies brought before them. The substitution of the word "must" for the word "may," in the last words of that clause, is, however, important, and seems to leave them no discretion in this respect, in cases where any party claiming a really adverse interest has been omitted to be brought in. In Wallace v. Eaton, 5 How. 99, it was held that this is the controling section in cases of a demurrer for want of proper parties. The next clause, the first of those brought in by the amendment of 1851, enables persons not parties to suits for the recovery of property, but having an interest therein, to apply themselves to the court, for the purpose of being brought in by amendment, without waiting for the action of the original parties thereto, an important and novel provision. In reference to an application of this nature by creditors claiming an interest in the surplus realized under an attachment, after satisfaction of the attaching creditor's claim, see Fraser v. Greenhill, 3 C. R. 172, above cited.

The concluding provision is on the subject of interpleader, and has doubtless been suggested by the English statute, 1 and 2 William 4, c. 58, on the same subject. The amendment having been so recently made, it has not as yet become the subject of express decision; and, till that is the case, the English books of practice may advantageously be consulted upon the question. It will be observed that the powers of the court upon this subject are entirely discretionary, and that the relief so asked can only be asked as a matter of favor, and not of right. The op

eration of the court, too, is confined to actions ex contractu, or for the recovery of specific real or personal property. The party applying must prove entire good faith on his part, and entire absence of collusion with the party proposed to be substituted in his place; and he must also place the subject-matter of controversy within the control of the court, entirely and without reserve. Under these circumstances, and under these only, can the application be made; and a failure in any one of these requisites will, of course, be fatal to it, and would probably involve the payment of costs. If it succeed, however, the applicant obtains a complete release from the controversy and its consequences, and the substituted party takes his place in all respects.

Of course this remedy is entirely inapplicable to cases where the party seeking it retains any claim or interest whatever in the subject matter of the controversy, or is in reality directly liable, as in the case of an advertised reward claimed by several, or in those where he has otherwise given occasion for that controversy by his own acts. It is simply and solely intended to meet the case of a mere depositary, or holder of that subject matter, in an official, ministerial or fiduciary capacity, either original,or attaching by implication, under occurrences accruing subsequent to its original coming into his possession. A party into whose hands money or goods may have come in the ordinary course of business, for safe custody, and to be thereafter accounted for to the proper owners, may also become entitled to this remedy; and it would seem, from some of the English cases, that the existence of a mere lien upon such goods, for charges in respect of such custody, which lien does not in its nature attach specially on either of the claimants, and involves no assertion of ownership in any part thereof, will not be a bar to such an application; though any claim of actual ownership, or litigation in respect thereof, in any part of such deposit, however small, will be held to be so. A purchaser of land, unable to pay his purchase money to one or other of two parties claiming title to the estate contracted to be sold, has also been held in England to be a proper subject for this species of relief. Any dealing with either of the parties, calculated to alter their interest in the subject matter in question, or to give either of those parties an independent right against the depositary, the taking of any indem

nity from either, or any illegality in the original transaction, out of which the deposit arose, will of course do away with the bona fides of the application, and form an effectual bar to it, as showing collusion. The reverse, however, seems to be the case with regard to a mere demand of indemnity, prior to the action, when not complied with. It is evident that no remedy of this kind exists before action brought; and, of course, if the party prefer to institute a separate suit for the same purpose, it is competent for him to do so, though probably at the risk of costs, if such separate suit prove to be clearly unnecessary.

The proper mode of applying for this species of relief, or that last previously mentioned, would appear, by analogy, to be by motion, founded on a duly verified petition. The latter appears to be advisable, if not necessary, inasmuch as either of such applications must, of necessity, be grounded upon a substantive statement of facts, unconnected with the matter regularly in question in the cause; and it is of course necessary that such statement should be duly brought before the court, and should duly appear upon the face of the order granted upon it, or rather upon the petition, as, in effect, part of the order, so that the circumstances under which the court has exercised its discretion in the matter may be duly apparent upon the record.

The subject of abatement of suits, and the measures necessary thereon, will be found considered hereafter in that portion of the work which treats of the proceedings intermediate between the original joinder of issue and its trial.

CHAPTER III.

OF THE LIMITATION OF ACTIONS.

THIS subject, as was the case with the last, divides itself naturally, in the first instance, into two branches, involving, 1st, the consideration of the limitations of actions, as applicable to real

estate, and 2dly., in reference to personal property. These two different subjects will accordingly be treated of successively in the above order; the preliminary provision of the Code, abolishing the former law thereon, being previously noticed; and a few supplementary observations, applicable to the limitation of actions in general, being subjoined at the conclusion of the chapter.

The provisions of the Code on these subjects are contained in the second title of part II. of that measure, and consist of four chapters. The three last of these follow the order above prescribed; the first being of a general and preliminary nature, and containing only two sections.

By section 73, the first of those last alluded to, the whole of the provisions of that chapter of the Revised Statutes which contains the general statute law on this subject, are expressly repealed; so that, in relation to all future controversies, the Code, and the Code alone, will henceforth be authority.

As to actions commenced, or rights accrued previously to its passage, the old law still governs.

Where, however, a previous right of action stood already barred at the actual time of that passage, it was held that a subsequent parol acknowledgment of that right, though sufficient to have revived it under the former statutes, had no such effect, the Code being in actual operation at the time such acknowledgement took place, and the provisions of section 90 being applicable accordingly, without attributing to those provisions any retrospective effect whatsoever. The alleged verbal promise was a transaction subsequent to the passage of the Code, and was, as such, governed by the statute law in existence at the time of its actual making.- Wadsworth v. Thomas, 7 Barb. S. C. R. 445; 3 C. R. 227.

The other introductory section, (74), after general provisions in relation to the following limitations, contains a further general reservation of all other cases in which a special limitation is prescribed by statute, independent of the provisions repealed as above, which special limitations will be treated of as they occur.

An important provision has been added at the conclusion of this section, on the amendment of the measure in 1851, i.e., that objections of this nature can only be taken by answer. No restriction, in this respect, was imposed by the Codes, either of 1848 or