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adıninistrator must s'e for the bene- ter's v. C., R. I. & P. R. Co., 36-458. fit of the estate, under $ 2526: Wals |

Sec. 2557. When the precise name of any defendant cannot Name un be ascertained, he may be described as accurately as practicable, KNOWN. R 2758. and when the name is ascertained it shall be substituted in the C. '31, 8 1694.


In a suit brought against “the a known person, who can be described heirs of Otis Reynolds," held, that the with some certainty: Reynolds v. Muy, defendants were not described with 4 Gr., 283. sufficient certainty. The Code con- For similar provision as to proceedtemplates that the defendant shall belings before a justice, see § 3519.

SEC. 2558. When an action is founded on a written instruWritten instru. ment: suit on, ment, suit may be brought by or against any of the parties there10. brought. R. 22786.

shto to, by the same name and description as those by which they C. '51, 2 1692. are designated in such instrument.

Where the name inserted in the Pembinaw and owners;" Steamb ut, ir strument as that of payee is not etc., 1. Wilson, 11-479. that of a person, partnership or cor- Under this section it is not necesporation, the suit cannot be brought sary to allege either copari nership or in that name. So held, where a note corporate cipacity: Hurris Co. was made payable to “Steamboat | v. Marsh, 49-11.

Sec. 2559. No judgment can be rendered against a prisover Prisoner in in the penitentiary until after a defense made for him by his atpenitentiary. R. 2 2781. torney, or if there is none, by a person appointed by the court to

. defend him.

SEC. 2560. The state shall commence and prosecute suits acState: actions cording to the laws of the land as in cases between individuals, by. K. & 2793.

except that no security shall in such cases be required.

SEC. 2561. No action shall abate by the transfer of any interTransfer: abatement.

est therein during its pendency. R.,2794.

Cnder corresponding section of that an action might be continued in C. 'S1, & 1698.

Rev., held, that where plaintifl in an the name of the original party, or the action to recover property, transterred court might allow the person to which his interest pending the action, the the transfer was made to be substisuit might still be prosecutul in his wted: Chicasaw Co. v. Pitcher, :,6– name: Jordan v. Ping, 32-64; and 593. And see cases under $ 2315.


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Sec. 2562. A married woman may in all cases sue and be May suc with- sued without joining her husband with her, to the same extent as out joining

dr if she were unmarried, and an attachment or judgment in such R.%2772.

167 action shall be enforced by or against her as if she were a single woman.

Personal judgments against mar- / same as in case of judgments against ried women may be enforced against oiher persons: Van Metre v. Wolf subsequently acquired property the ( 27–341.

Sec. 2563. If husband and wife are sued together, the wife Defense by.

may defend for her own right; and if either neglect to defend, the 1.2 2774. other may defend for such one also. ('. '51, 1687.

ind SEC. 2564. When a husband has deserted his family, the wife When husband or wile deserts may prosecute or defend in his name any action which he might family. 1. 2776. have prosecuted or delended, and shall have the same powers and 13 G. A. ch. 167, rights therein as he might have had; and under like circumstances 12.

the same right shall apply to the husband upon the desertion of the wise.


Sec. 2565. The action of a minor must be brought by his Action: how

brought. guardian or next friend; but the court has power to dismiss it if it R. 274 is not for the benefit of the minor, or to substitute the guardian C. '51, € & 1695 9. of the minor or other person as next friend.

An infant may sue by his next be discharged and another substitufriend, and on the trial prove his in- ted: Thurston 1. Carenor, 8-15:). faner as establishing his right to sue In an action brought for a minor in that manner : Byers v. Lessees of by his next friend, such next friend D. V. R. Co., 21-54.

is liable for costs : Vance v. Fall, The “next friend” in whose name 48–367. a suit for a ninor is commenced, may

Sec. 2566. The defense of a minor must be by his regular Defense 1: guardian, or by a guardian appointed to defend him where no R .. regular guardian appears, or where the court directs a defense, by a guardian appointed for that purpose. No judgment can be rendered against a minor until after a defense by a guardian.

The court has no authority to ap- 1 213; Carender v. Heirs af Smith, 5point a guardian ad litem to act for 157. a minor until complete service upon Where a guardian ad litem was not such minor has been had: Good v. appointed for the minor defendant Norley, 28-158, 199.

until the trial had commenced and Failure to appoint a guardian ad plaintiff had rested, when an attorney litem, and rendition of judgment for the defendant was appointed as without defense by minor, does not such guardian, helil, that a refusal of render a judgment void. It is erro- the court to re-try the case from the neous, but can only be taken advan- beginning would not be sufficient to tage of by direct proceedings: Drake warrant a reversal; no prejudice apr. Hanshano, 47-291; Myers v. Daris, l pearing to have resulted therefrom: 47-325, 330; Bickel v. Erskine, 4:;- Wickersham v. T'immons, 49–267.

Sec. 2567. The appointment cannot be made until after ser- Guardian: apvice of the notice in the action as directed in this code, and may kazne.

pointment us. then be made by the court or judge thereof, or during vacation, by the clerk ; but the court shall have the power to remove such guardian when the interests of the minor require such change. If made by the judge or clerk, it shall be done hy endorsing the name of the person appointed, and the time thereof, on the petition in the action.

After service by publication in the Where there has not been sufficient sane manner as in case of an alut, service of notice, the appointment and the court may appoint a guardian ad appearance by a guardian ad litem litem for a minor defendant as here will not confer jurisdiction: Allen v. provided: Juld v. Mosely, 30–423. Saylor, 14-435.

Sec. 2568. The appointment may be made on the application when over of the minor if he is of the age of fourteen years, and applies at Orte

fourteen years or before the time he is required to appear and defend. If he R. ¿ 2780, does not so apply, or is under that age, the appointment may be made on the application of any friend of the minor or on that of the plaintiff in the action.


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Sec. 2569. The action of a person judicially found to be of Plaintiff: unsound mind, must be brought by his guardian, and, if he have action by.

none, the court or judge thereof, or the clerk, in vacation, may R. 2 2781.

appoint one for the purposes of the action.

SEC. 2570. The defense of an action against a person judicially Defense: guar- found to be of unsound mind, or a person confined in any state

lunatic asylum, who, by the certificate of the physician in charge, R. & 2782,

appears to be of unsound mind, must be by his guardian or a guardian appointed by the court to defend for him. Such appointment may be made upon the application of any friend of the defendant, or on that of the plaintiff, but not until service has been made as directed in this code, and no judgment can be rendered against him until defense has been made as herein provided.

SEC. 2571. Where a party is judicially found to be of unsound Pending suit. mind, or is confined in any state lunatic asylum, and, by the certiR. 22783.

ficate of the physician in charge, appears to be of unsound mind during the pendency of an action, the fact being stated on the record, if he is plaintiff his guardian may be joined with him in the action as such ; if he is defendant, the plaintiff may, on ten days' notice thereof to his guardian, have an order making the guardian a defendant also.


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SEC. 2572. Upon affidavit of a defendant before answer, in any Interpleader: action upon contract for the recovery of personal property, that subintution of some third party without collusion with him has, or makes a claim posit of prop- to the subject of the action, or on proof thereof as the court mav

direct, the court may make an order for the safe keeping, or for C. 51, & & 1685, 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 person to appear in a reasonable time and maintain or relinquish his claims against the defendant, 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 defendant therein. If such third person 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 payment, deposit, or delivery thereof.

Sec. 2573. The provisions of the last section shall be applicaApplication of ble to an action brought against a sheriff or other officer, for the rule to sheriffs and officers. recovery of personal property taken by him under an attachment R. & 2758.

or execution, or for the value of such property so taken and sold by him. And the defendant in any such action shall be entitled to the benefit of these provisions against the party in whose favor the attachment or execution issued, upon exhibiting to the court the process under which he acted, with his affidavit that the prop. erty, for the recovery of which, or its proceeds, the action was brought, was taken under such process.

The remedy here given the officer that by indemnity bond provided in in such cases, is merely cumulative to 1 $ 3055: Kaster v. Pease, 42-488. SEC. 2574. In an action against a sheriff or other officer, for Same.

R. 2 2769. the recovery of property taken under an attachment or execution," the court may, upon application of the defendant and of the party in whose favor the process issued, permit the latter to be substituted as defendant, sureties for the cost being given.

SEC. 2575. An action to recover the possession of specific In case of land. personal property taken under a landlord's attachment, when it is ment. brought by the tenant or bis assignee or under-tenant, may be R. & 2770. against the party who sued out the attachment; and the property claimed by such action may, under the writ therefor, be taken from the officer who seized it when he has no other claim to hold it than that derived from the writ. The endorsement of a levy on the property made upon the process by the officer holding it, shall be a sufficient taking of the property to sustain action against the party who sued out the writ.



real propery.

Section 2576. Actions for the following causas must be in relation to brought in the county in which the subject of the action, or some !! part thereof, is situated :

C. 51,173. 1. For the recovery of real property, or of an estate therein, or for the determination of such right or interest;

2. For the partition of real property; 3. For injuries to real property.

Sec. 2377. Actions for injuries to real property may be Same. brought either in the county where the property is, or where the defendant resides.

[This section and T 3 of the preceding section seem inconsistent. In the original, the two sections are in different parts of the chapter, but in the re-arrangement by the editor, they are brought together in the printed code as Lere. Sec. 2578. An action for the foreclosure of a mortgage of real Mortgage :,

mechanics property, or for the sale of real property under an encumbrance lien or charge, or to enforce a mechanics' lien on real property, may be brought in the county in which the property to be affected or some part thereof is situated.

Action to foreclose a mortgage and defenılant resides: Cole v. Conner, for general judgment against mort-10-299; Finnagan v. Manchester, 12gagor, may be brought either where 521. See, also, Chadbourne v. Gilthe property is situated or where the man, 29-181.

Fines, forfcit SEC. 2579. Actions for the following causes must be brought Ollicer and on

ures: agains' in the county where the cause, or some part thereof, arose; official bonis.

k. & 2796.

1. An action for the recovery of a fine, penalty, or forfeiture imposed by a statute, except that when the offense for which the claim is made was committed on a water course or highway which is the boundary of two counties, the action inay be brought in either of them;

2. An action against a public officer or person specially appointed to execute his duties, for an act done by him in virtue or under color of his office, or against one who by his command, or in bis aid, shall do anything touching the duties of such officer or for neglect of official duty;

3. An action on the official bond of a public officer.

An action on a bail bond given up- / found. The forleiture belongs to the on change of venue from one county county to which the change was to another, conditioned for the ap- | taken : Decatur Co. v. Maxuell, 26– pearance of defendant in the county | 398. to which the chance is takon, shoulal As to place of bringing action on be brougit in that county ani not in bail boud, see $ 4539. the county where the indictment was 1

SEC. 2580. An action, when aided by attachment, may be Attachment of brought in any county of the state wherever any part of the propproperty.

erty sought to be attached may be found, when the defendant R 22707 7. 31, 1703. whose property is thus pursued is a non-resident of this state.

If such deiendant is a resident of this state, such action must be brought in the county of his residence, or that in which the contract was to be performed, except that is an action be duly brought against such defendant in any other county by virtue of any provisions of this chapter, then such action mıy, if legal cause for an attachment exist, be aided by an attachment.

The word “contract' in the phrase | publication, brought in a county " that (county) in which the contract wh-re no property is found, but in is to be performed,” refers to such which proceedings property in another written contract as is contemplated in county is levied on, are valid and may the following section and not to ver- be removed to the proper county unbal contracts : Hatch 1. Joinson, 44- der $ 2.389 (discussing the question 535.

| with reference to the provisions of As to whether the proceedings in Code of '51), see Luird i. Dickerson, an action by attachment against a 40-665. non-resident defendant served by

Sec. 2581. When, by its terms, a written contract is to be Place of con- performed

performed in any particular place, action for breach thereof may tract. R. 27.8.

be brought in the county wherein such place is situated. C. 31, & 1703. Where defendant bought of plain- , where, by its terms, the property was

tiff fruit trees, agreeing to pay there to be deliveret: Oliver 1. Buss, 30-
for a certain sum on their delivery at 90; Hauger 1. McCarthey, 34-415.
a certain place, held, that the contract Where a certificate of deposit was
to pay was not, by its terms, to be issued payable at a certain date on re-
performed in any particular place, turn of the certificate, held, that by
and suit for the price should be its terms it was “ to be performed”
brought where the defendant resided. at the place where issued, so that an
The agreement to perform in a par- action on it might be brought in that ·
ticular place must be in terms, and county: Sanbourn o. Smith, 44-152.
not by implication merely: Hunt v. Where a bond was given condi-
Bratt, 2:3-171.

tioned for the payment of a penalty Where personal property is to be if the principal failed to erect a schooldelivered by the vendor and received house at a place named, according to by the vendee at a particular place, a certain written contract, etc., held, an action for the breach of such con. that it was not " to be performed in a tract may be brought in the county particular place," and an action

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