50. When two or more disabilities co-exist in the same person at the time the right of action accrues, the limitation does not attach, until they are all removed.

§ 51. After a mortgagee of real property, or any one claiming under him, has had fifteen years' continued possession thereof, no action shall be brought by the mortgagor, or any one claiming under him, to redeem it, unless, in the meantime, the mortgagee, or person claiming under him, in possession of the property, has made a written acknowledgment of the right to redeem in which case, the action to redeem may be brought within fifteen from the time of such acknowledgment.

years

Same of per. sonal property,

§ 52. The provisions of the last section shall apply, in the case of a mortgage of personal property, with the dif- except years. ference that the period within which the action to redeem may be brought, shall be five years.

Written acknowledg ment necesssary to

statute.

§ 53. No acknowledgment or promise shall be sufficient evidence of any new or continuing contract, by which to take any case out of the limitations prescribed in this title, take case out of unless the same is in writing, and signed by the party to be charged thereby, or his agent. But no acknowledgment or promise by a personal representative of a decedent, or by one of several joint contractors, shall charge the estate of such decedent, or any other of such joint contractors, in any case in which, but for the promise or acknowledgment, the limitation would apply.

§ 54. Where, by the laws of any other state or country, an action upon a judgment or decree rendered in such state or country, cannot be maintained there by reason of the lapse of time, and such judgment or decree is incapable of being otherwise enforced there, an action upon the same cannot be maintained in this state, except in favor of a resident thereof who has had the cause of action from the time it accrued. And no action shall be brought, upon a judgment or decree rendered out of this state more than ten years before the commencement of such action, against a person who has resided in this state ten years next preceding it.

55. When a cause of action has arisen in another state or country, between residents of such state or country, and by the laws thereof an action cannot be maintained thereon by reason of the lapse of time, no action can be maintained thereon in this state.

56. The provisions of this title shall not apply in the following cases:

Acknowledg. ment of person. al representa tive or co-obli gor not suffi. cient.

Cause barred

in one state cannot tained against a resident.

be main.

Ten years resi. state bars right

dence in this of action.

Cause between

other state,

if

residents of anbarred there, is

barred here.

Provisions of title do not apply to trusts, or

dee to obtain a conveyance.

1. In the case of a continuing and subsisting trust. to action by ven2. To an action by a vendee of real property in possession thereof to obtain a conveyance of it.

1851.

TITLE III.

PARTIES TO CIVIL ACTIONS.

CHAP. 1. Parties to actions generally.

2. Parties to certain actions.

Action to b

prosecuted

name of party in interest.

Action by assignee subject to

3. Married women.

4. Infants.

5. Persons of unsound mind, and prisoners.

CHAPTER 1.

Partics to actions generally.

57. Every action must be prosecuted in the name of the in real party in interest, except as provided in section sixty. § 58. In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any discount, set-off, or defense now allowed. And where the assignment is not authorized by statute, the assignor must be a party, as plaintiff or defendant. This section does not apply to bills of exchange, nor to promissory notes placed upon the footing of bills of exchange, nor to common orders or checks.

discount, set off, If assignment

"&c.

not authorized by statute, as

signor must be

party.

Does not apply

to bills of exchange and negotiable notes.

If right is trans

ferrera the action, to be

continued in his name, or

as

signee made

party.

$59. Where the right of the plaintiff is transferred or assigned during the pendency of the action, it may be continued in his name, or the court may allow the person to whom the transfer or assignment is made, to be substituted in the action, proper orders being made as to security for the costs.

§ 60. An executor, administrator, guardian, trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute to do so, may bring an action, without joining with him the person for whose benefit it is prosecuted.

§ 61. All persons having an interest in the subject of an All persons action, and in obtaining the relief demanded, may be joined as plaintiffs, except where it is otherwise provided in this code.

§ 62. Any person may be made a defendant, who has, or claims, an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination and settlement of the question involved in the action. § 63. Of the parties to the action, those who are united in interest, must be joined as plaintiffs or defendants; but if the consent of one who should have been joined as plaintiff, cannot be obtained, he may be made a defendant, the reason being stated in the petition.

64. Where the question is cne of a common or general Where parties interest of many persons, or where the parties are numerous and it is impracticable to bring them all before the court within a reasonable time, one or more may sue, or defend, for the benefit of all.

One or more may sue or defend for all.

§ 65. Persons severally liable upon the same contract, including the parties to bills of exchange, and promissory notes placed upon the footing of bills of exchange, common orders and checks, and sureties on the same or separate instruments, may all, or any of them, or the representatives of such as may have died, be included in the same action, at the plaintiff's option.

§ 66. Where two or more persons are jointly bound by contract, the action thereon may be brought against all or any of them, at the plaintiff's option. Where any of the persons so bound, are dead, the action may be brought against any or all of the survivors with the representatives of all or any of the decedents, or against the latter, or any of them. Where all the persons so bound are dead, the action may be brought against the representatives of all, or of any of them. An action or judgment against any one or more of several persons jointly bound, shall not be a bar to proceedings against the others.

But

If any are dead representatives may be joined

with survivors.

If all are dead action may be

against repre

sentatives of all
Action or judg.
ment against
some jointly
bound
no bar

against others. sy cannot be decided without be brought in.

If controver

others they must

§67. 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. when a determination of the controversy between the parties before the court, cannot be made without the presence of other parties, the court must order them to be brought in. § 68. Where, in an action for the recovery of real or personal property, any person having an interest in the proper- sonal property ty, applies to be made a party, the court may order it to be done.

CHAPTER 2.

Parties to certain actions.

§ 69. Upon affidavit of a defendant before answer, in any action upon contract or for the recovery of personal property, that some third party, without collusion with him, has or makes a claim to the subject of the action, and that he is ready to pay or dispose thereof as the court may direct, the court may make an order for the safe keeping, or for the payment, or deposit in court, or delivery of the subject of the action to such person as it may direct, and an order requiring such third party to appear in a reasonable time and maintain or relinquish his claim against the defendent, and, in the meantime, stay the proceedings. If such third party, being served with a copy of the order, fails to appear, the court may declare him barred of all claim in respect to the subject of the action, against the defendent therein. If such third party appears, he shall be allowed to make himself defendant in the action, in lieu of the original defendant, who shall be discharged from all liability to either of the other parties in respect to the subject of the action, upon his compliance with the order of "the court for the payinent, deposit, or delivery thereof.

In an action for real or per

all interested may be made parties.

i

1851.

Last section to apply to sher

ff, have benefit of it.

In action against officer for

property, plain may be substi

tiff in execution

tuted.

Tenant may

Bue landlord

for property un

der a distress warrant.

Indorsement

by officer of levy

sufficient taking

Action against

steamboat may

be brought a

gainst owners without naming them.

§ 70. The provisions of the last section shall be applicable to an action brought against a sheriff, or other officer, for the recovery of personal property taken by him under an execution or distress warrant, or for the proceeds of such property so taken, and sold by him. And the defendant in any such action, shall be entitled to the benefit of those provisions against the party in whose favor the execution or distress warrant issued, upon exhibiting to the court the process under which he acted, with his affidavit that the property, for the recovery of which, or its proceeds, the action is brought, was taken under such process.

§71. In an action against a sheriff, or other officer, for the recovery of property taken under an execution or distress warrant, the court may, upon the application of the defendant, and of the party in whose favor the execution or distress warrant issued, permit the latter to be substituted as the defendant, security for the costs being given.

§ 72. An action to recover the possession of specific personal property taken under a distress warrant, where it is brought by the tenant, or his assignee or undertenant, may be against the party who sued out the warrant; and the property claimed in such action may, under the order for its delivery, be taken from the officer who seized it, where he has no other claim to hold it than that derived from the warrant. The indorsement of a levy on the property, made upon the warrant by the officer holding it, shall be a sufficient taking of the property, to sustain the action against the party who sued out the warrant.

§ 73. An action to enforce the liability of a steamboat, or other vessel, for the removal of a slave, or to enforce a lien upon a steamboat for the wages of its officers or crew, or for work done upon, or materials, supplies, stores, or provisions furnished to such boat, or the liability thereof for an injury to another boat or craft, or for a trespass of its officers or crew, and in which no relief is sought beyond the subjection of the boat or vessel to the satisfaction of the plaintiff's claim, may be brought against the owners thereof without naming them, or they may be named and summoned as other defendants. An owner, or part owner, or person having claim or title to the boat or vessel, whether named or not, named as a defendant in the petition, and summoned, or not, may appear and make defense in the action, where it satisfactorily appears by his affidavit that he is an owner, or part owner, or has a claim or title to the boat, the nature and extent of which must be stated.

Owner or part owner, whether

may defend action.

Several per

sons having dis

tinct claims a

gainst steam

boat may unite in action.

§74. An action to enforce a lien upon a steamboat, may be brought jointly by several persons having distinct claims for work, materials, stores, provisions, or supplies. In such cases, the statement in the petition of the claim of every plaintiff, and the verification thereof, must be separately made.

$75. In an action to enforce a lien, by statute, upon a steamboat for wages, work, materials, stores, or supplies, other persons having claims for any of these things, shall, upon exhibiting the same to the court by petition verified by affidavit, be made partics.

CHAPTER 3.
Married women.

Husband must

he joined with wite in

§ 76. Where a married woman is a party, her husband must be joined with her, except that, where the action concerns her separate property, she may sue alone; and, where we to action. the action is between herself and her husband, she may sue, or be sued, alone.

thent

tween
she may sue
alone.

If husband &

$77. If a husband and wife are sued together, the wife may defend for her own right; and if the husband neglects wife are sued she to defend, for his also.

may defend her. right.

If husband dewife may sue or dejend.

§ 78. Where a husband being a father, has deserted his family, the wife being a mother, may prosecute or defend, serts his family, in his name, any action which he might have prosecuted or defended, and shall have the same powers and rights therein as he might have had.

§ 79. Where a female party to an action marries, the fact being stated upon the record, the husband may be made a party with his wife, and the action shall proceed.

CHAPTER 4.
Infants.

§ 80. The action of an infant must be brought by his guardian, or his next friend. Any person may bring the action of an infant, as his next friend; but the court has power to dismiss it, if it is not for the benefit of the infant, or to substitute the guardian of the infant, or another person, as the next friend.

$81. The guardian, or next friend, is liable for the costs. of the action brought by him, and, where he is insolvent, the court may require him to give security for them. Either may be a witness in an action brought by him, after he has deposited in court a sum which the judge may deem suf ficient to cover the costs, or, where the action is by a next friend, after the substitution of another solvent person as next frien'l, and an order of the court, with the consent of such person, that he shall be liable for all the costs of the action.

If female mar

ries

tion,

pending ac

husban l

may be Inade

party by order.

Who must de

fant.

§ 82. The defense of an infant must be by his regular guardian, or by a guardian appointed to defend for him, fend for an inwhere no regular guardian appears, or where the court directs a defense by a guardian appointed for that purpose. No judgment can be rendered against an infant, until after a defense by a guardian.

§ 83. The guardian to defend shall be appointed by the court, or by the judge thereof. The appointment cannot be made, until after service of the summons in the action

Must be appoint.

ed by the court.