Warnock v. Richardson, 50-450; Allison v. Barrett, 16-278; a verbal assignment will be sufficient: Green v. Marble, 37-95. The party holding the legal title of a note or instrument, may sue on it, though he be an agent or trustee and liable to account to another for the proceeds of the recovery; but defendant in such cases may interpose any defense which he may have against the party beneficially interested. The party beneficially interested may also sue in his own name: Cottle v. Cole, 20-481; Farwell v. Taylor, 5-535; Pearson v. Cummins, 28-344; thus an indorsee may sue in his own name, although he holds the note only as security: Sheldon v. Middleton, 10 17. A party suing on an instrument not negotiable by delivery, must show by what right he claims to sue. It is not sufficient to aver simply that he is the owner: Montague v. Reineger, 11-503; and he must have the legal title, or a beneficial interest. A surety, prior to the payment of the note, has no right of action thereon against his principal: Dennison v. Soper, 33-183. While parties may not, by agreement, upon assignment of the legal title of a note, provide that suit shall be prosecuted thereon in the name of the assignor, yet a party may, pending an action on a note, assign to another his interest in the recovery, without rendering it necessary to change the name of the party plaintiff: Allen v. Newberry, 8-65; Howey v. Willtrout, 10-105; but where there is a transfer of the ownership of the note during the pendency of the suit, the new owner may be substituted as plaintiff on his own motion : Ferry v. Page, 8-445; Fannon v. Robinson, 10-272. The assignee of a chose in action may sue thereon in his own name: Roberts r. Corbin, 26–315, 325. The assignee, by parol assignment, of a bond may sue thereon: Conyngham v. Smith, 16-471; and a bond given partly for the benefit of a party not named therein, may be sued by such person in his own name: Hunt |ington v. Fisher, 27–276. The beneficiary in a trust deed may sue in his own name: Devin v. Hendershott, 32-192. The holder of the legal title of real property is the real party in interest in an action for the recovery thereof, although he be under obligation to account to another for the proceeds: Boardman v. Beckwith, 18-329. The assignee by verbal assignment of an instrument of guaranty may sue thereon: Green v. Marble, 37–95. A judgment may be assigned, and action thereon should be prosecuted in the name of the assignee: Edmonds v. Montgomery, 1-143. Where a subscription was made payable to the treasurer of an unincorporated association, held, that he might sue thereon in his own name: McDonald v. Gray, 11-508. A surviving partner of a firm is the real party in interest as to claims existing in favor of the partnership and he should sue as surviving partner, without joining the representatives of the deceased partner: Brown v. Allen, 35-306. It would seem that the mortgagee of property might maintain an action on a policy of insurance issued to the mortgagor, notwithstanding a provission therein prohibiting its assignment: Mershon v. Nat'l. Ins. Co., 34-87. The claim of the wife for damages for a tort against her should be prosecuted in her own name, and not jointly with her husband. The sections allowing her to sue alone in such cases are not simply permissive but imperative: Musselman v. Galligher, 32-383. Where the plaintiff in an action to recover real property conveys his title during the pendency thereof, the action may be continued in his name. (See § 2561): Jordan v. Ping, 32-64. An action cannot be prosecuted in a name which is not that of a partnership, corporation or person. Steamboat Pembinaw and owners, held not to be the name of a party within the meaning of this section: Steamboat, &c., v. Wilson, 11–479. C. '51, 1676. SEC. 2544. An executor or administrator, a guardian, a trustee Exception. of an express trust, a party with whom, or in whose name a con- R. 275 tract is made for the benefit of another, or party expressly authorized by statute, may sue in his own name without joining with him the party for whose benefit the suit is prosecuted. Where a contract is made with an agent or trustee, the real party in interest may sue in his own name with out joining such agent or trustee, or the latter may sue without joining the former: Rice v. Savery, 22-470. Plaintiffs joined. R. 2 2759. C. 51, 1678. Assignment: right of de 66 The trustee of an unincorporated | payable into the county treasury for association may sue in his own name the benefit of the school fund, renders for the benefit of the association, as the county such a trustee therethe trustee of an express trust: for, that it may bring action for such Laughlin v. Greene, 14-92. penalty: Shelby Co. v. Simmonds, 33-345. Where a bond in a replevin suit concerning property of an intestate was made payable to the executor in his individual capacity, held, that he might sue thereon either in his representative capacity or individually: Oliver v. Townsend, 16-430. And so in a case where no es were devised by will and the devisee was male executrix, held, that she might recover thereon in a suit brought as executrix: Grimmell v. Warner, 21-11. In an action brought by a rarty to recover an amount deposited by him for himself and others as a wager, held that the contract being void, he could not recover as the "party with whom or in whose name a contract is is made," but could only recover the amount of the deposit belonging to him individually: Toney v. Snyder, 50-73. The section applied: Moorehead v. Hyde, 38-382. The penalty of a bail bond being SEC. 2545. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except where it is otherwise provided in this code. Where there is unity of interest as paid, held, that plaintiffs could not to the object to be attained by a bill join, but must bring separate actions in equity, all parties seeking redress | for their proportionate shares: Ind. may join in the same complaint: Sch. Dists. of Graham Tp. v. Ind. Powell v. Spaulding, 3 Gr. 443. So Sch. Dist. No. 2, 50-322. a number of separate property owners equally interested in restraining the collection of an illegal tax may join in an action by injunction for that purpose: Brandirff v. Harrison Co., 50-164. The fact that two parties who join in a contract to perform certain work, are each to receive certain distinct, specified sums of money therefor, does not make it necessary that they should bring separate suits on such contract: Fauble v. Daris, 48-462. Sureties who have paid money for their principal, inay join in an action against him therefor: Skiff v. Cross, 21-459. But in an action to compel reimbursement of money paid by plaintiffs which defendants should have Two plaintiffs cannot join in an action for slanderous words spoken of them jointly: Hinkel v. Davenport, 38-355; nor for fraudulent representations made to them: Bort v. Yaw, 46-323; nor can parties who are jointly arrested and tried for larceny join in an action for malicious prosecution: Rhoads v. Booth, 14-575. Misjoinder of parties is not a ground for demurrer, but should be taken advantage of by motion to strike out the names of the parties improperly joined: Dist. Tp. of White Oak v. Dist. Tp. of Oskaloosa, 44-512; Ind. Sch. Dist. of Graham Tp. v. Ind. Sch. Dist. No. 2, 50–327. Such defect is not waived by failure to set it up by way of demurrer or auswer: Bort v. Yaw, 46-323. SEC. 2546. In case of the assignment of a thing in action, the action by the assignee shall be without prejudice to any counter fendant saved. claim, defense, or cause of action whether matured or not, if R.& 2760. matured when plead, existing in favor of the defendant and against the assignor before notice of the assignment; but this section shall not apply to negotiable instruments transferred in good faith and upon valuable consideration before due. This section applies only to an assignment of a non-negotiable thing in action. The transferee of a negotiable note after maturity, takes it subject to equities arising out of the note itself, but not subject to an independent set-off: Richards v. Daily, 34-427. A judgment passes to an assignee charged with all the equities which could be asserted against it in the hands of the assignor: Burtis v. Cook, 16-194; Ballinger v. Tarbell, 16-491. As bearing on this section, see notes to § 2084. In proposing the change made in this section from the corresponding section of the Rev., the commissioners say, "Parties may have claims against each other, but not connected with or growing out of the same transaction. One may assign and become insolvent; in an action by an assignee the other party cannot bring R. 22761. SEC. 2547. Any person may be made a defendant who has, or Defendants. claims, an interest in the controversy adverse to the plaintiff; or who is a necessary party to a complete determination or settlement of the question involved in the action, except as otherwise expressly provided by law. To entitle a party to be made a de- | fore his marriage, on property which fendant, his claim must be made in subsequently to such marriage became good faith with an apparent interest his homestead, the wife is a necessary in the controversy. A mortgagor party defendant, and her rights in who has conveyed mortgaged proper- the homestead cannot be otherwise ty with covenants, my, on his own cut off: Chase v. Abbott, 20-154. motion, be made a party to a suit to foreclose the mortgage: Gifford v. Workman, 15-34 The administrator is a proper, if not a necessary, party in a proceeding to foreclose a mortgage executed by his decedent: Darlington v. Effey, 13 1.7. And so in an action to foreclose a mortgage executed by defendant be The trustee of a deed of trust of real property, should be made a party in a foreclosure proceeding thereon: Tucker v. Silver, 9-261. In an action by equitable proceedings to correct a mistake in a chain of a title, previous grantors may be made parties defendant: Walkup v. Zehring, 13-306. partics. SEC. 2548. Persons having an united interest must be joined United Interon the same side either as plaintiff's or defendants, except as other- est joinder of wise expressly provided by law. But when some who should thus R. 22762. be made plaintiffs refuse to join, they may be made defendants; the reason thereof being set forth in the petition. C. '51, 1679. est: one suing SEC. 2549. When the question is one of a common or general Common interinterest to many persons, or when the parties are very numerous for all. and it is impracticable to bring them all before the court, one or R. 2753. more may sue or defend for the benefit of the whole. Persons severally charged with a tax have no such common or general interest in resisting its collection as will authorize one to sue for all Fleming v. Mershon, 36-413. Where one party sues for the benefit of others, those for whose benefit the ac.ion is brought are not parties to the suit in such sense as to have a One or more of the members of an C. '51, 1680. tions: how R. 2764. SEC. 2550. Where two or more persons are bound by contract, Joint and or by judgment, decree, or statute, whether jointly only, or jointly several obligaand severally, or severally only, and including the parties to nego- sued. tiable paper, common orders, and checks, and sureties on the same, C. 1,21681, or separate instruments, or by any liability growing out of the 1682 same, the action thereon may, at the plaintiff's option, he brought against any or all of them. When any of those so bound are dead, the action may be brought against any or all of the survivors, with any or all of the representatives of the decedents, or against any or all such representatives. An action or judgment brought in. against any one or more of several persons jointly bound, shall not be a bar to proceedings against the others. The maker and assignor or guarantor of an instrument not negotiable, may be made joint defendants in an action thereon: Tucker v. Shiner, 24334; Huse v. Hamblin, 29–501; so the maker and assignors of a negotiable instrument may be joined: Marvin v. Adamson, 11-371; Mix v. Fairchild, 12-351; and so an endorser may be joined as defendant with the maker: Stout v. Noteman, 30-414. An action on a promissory note against a surety, may be brought where there is judgment by confession against the principal: Citizens', etc., Bank t. Oleson, 47-492. The provisions of this section are applicable to the members of a partnership, and an action on an obligation of a firm may be brought against one partner alone (and held that this was so irrespective of Rev. $2785, which was similar to, but not identical with § 2553 of this Code): Ryerson v. Hendrie, 22-480. as defendants by reason of the provi sion of this section, when they would not be otherwise jointly liable: La France v. Krayer, 42-143, 146. Where a district township was divided into independent school districts, held, that action could not be brought on an indebtedness of the township against one of such independent districts alone: Knoxville Nat. Bank v. Ind. Dist. of Washington, 40-612; but that a joint action might be brought against all the independent districts composing what was formerly the district township, and a judgment against all of them might be rendered: Dist. Tp. of White Oak v. Dist. Tp. of Oskaloosa, 52-73; Kennedy v. Ind. Dist. of Derby Grange, 48-189. Action may be brought against the personal representatives of one of two or more joint obligors, although the other joint obligor or obligors are still living: Sellon v. Braden, 13 A judgment in favor of a sole plain-365. tiff against two defendants jointly, In an action on a joint policy of inmay be set off against a judgment surance made by four companies, in against such plaintiff in favor of one which each bound itself in case of a of the defendants: Ballinger v. Tar-loss to pay one-fourth of the amount bell, 16-491. of insurance, held, that the cause of action against each was separate, and they could not properly be joined as defendants in one action: Viele v. Germania Ins. Co., 26-9, 45. Parties who, under § 1557, are each liable to action for separate injuries committed thereunder, are not so bound "by statute" as to be joined SEC. 2551. The court may determine any controversy between Other parties parties before it, when it can be done without prejudice to the rights of others, or by saving their rights. But 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. to state, county, or municipal corporation. This section is especially applicable to cases where the debtor is under an apparent liability to two different parties for the same debt, and only one of them is before the court: Fowler v. Doyle, 16-534. scription of the premises, running through prior deeds, held, that the original grantor conveying with such mistaken description, or if dead, his heirs, were necessary parties, and should have been brought in: Flan In a proceeding to correct a misde-ders v. McClanahan, 24–486. SEC. 2552. When a bond or other instrument given to the Bond payable state or county, or other municipal corporation, or to any officer or person, is intended for the security of the public generally, or of particular individuals, suit may be brought thereon in the name of any person intended to be thus secured who has sustained an injury in consequence of a breach thereof. R. 2787. C. '51, 1693. A person intended to be secured, | curity of a county was improperly though his name be not mentioned in the bond, may bring suit thereon: Huntington v. Fisher, 27-276. Where a bond intended for the se given to the county judge, held, that the county might sue thereon: Collins v. Ripley, 8-129. In case of a bond given to release attached proper y under § 2994, to the sheriff instead of the plaintiff, held, the plaintiff might sue thereon: Moorman v. Collier, 32–138. A bond, though not such as is required in a particular case by statute, may still be good as a common law bond, and the party for whose benefit it was given may sue thereon: Shep | pard v. Collins, 12–570; Garretson v. Where a bond is executed to the R. 2785. SEC. 2553. Suits may be brought by or against a partnership Partnership. as such, or against all or either of the individual members thereof, C. 51, 1690, and a judgment against the firm, as such, may be enforced against 1691. the partnership property or that of such members as have appeared or been served with notice. But a new action may be brought against the other members on the original cause of action. Service on one member of a copartnership, after dissolution, held sufficient to warrant judgment against the firm, to be satisfied out of the partnership property: Hale v. VanSaun, 18-19. A judgment against a firm does not become a lien on real property held in the name of one partner, until made so by proper proceedings, although the firm may be the equitable owners: Stadler v. Allen, 44-198. Whether a judgment against the firm alone, as such, is a lien upon any- The surviving partner should sue as thing but firm property, quaere, but such for claims in favor of the partthe individual property of the mem- nership without joining the reprebers may be made liable by proper sentative of the deceased partner: action: Markham v. Buckingham, | Brown v. Allen, 35–306. SEC. 2554. Foreign corporations may bring suit in the courts Foreign cor of this state in their corporate name. porations. R. 2 2789. SEC. 2555. An unmarried female may prosecute as plaintiff C. 51, 169, an action for her own seduction, and recover such damages as woman. may be found in her favor. It is contemplated that the person seduced shall be unmarried at the time of the seduction: Gover v. Dill, 3–337. This section does not take away, criminal prosecution for seduction, § from the father the right to sue for 3867). Without that, she may recover damages for the seduction of his for loss of health, etc., but not for loss minor daughter. The action may be of character: Smith v. Milburn, 17 brought after she becomes of age, and -30. in a suit by the father exemplary damages may be given. He may maintain the action although the daughter be not living with him or in his service, and though there be no loss of service. (Decided under Code of '51): Stevenson v. Belknap, 6-97. To enable an unmarried female to recover for her own seduction, it is not necessary that she be of previously chaste character (as is required in a Such action survives under § 2525 to the personal representatives of the female: Shafer v. Grimes, 23–550. Section applied: Gray v. Bean, 27-221. For other cases as to seduction, see notes to § 3867. Unmarried R. 22790. of may sue. SEC. 2556. A father, or in case of his death or imprisonment When parents or desertion of his family, the mother may prosecute as plaintiff R. 2792. an action for the expenses and actual loss of service resulting C. 51, 1697. from the injury or death of a minor child. The damages to be thus recovered the minor's attaining majority. For are those accruing before the date of damages accruing subsequently, the |