mother) may prosecute, as plaintiff, for the seduction of the daughter, and the guardian for the seduction of the ward, though the daughter or ward be not living with, or in the service of, the plaintiff, at the time of the seduction or afterward, and there be no loss of service. When the action is brought by the guardian, the damages recovered shall inure to the ward.

A father may sue for the seduction of an unmarried daughter though she be not living with him. Boyd v. Byrd, 8 Blkf. 113; Bolton v. Miller, 6 Ind. 262.

A release by the daughter can not be set up to an action by the parent. Gimbel v. Smidth, 7 Ind. 627.

As to the measure of damages, and what may be considered. Felkner v. Scarlet, 29 Ind. 154; Pruitt v. Cox, 21 Ind. 15; Shattuck v. Myers, 13 Ind. 46.

The character of the seduced person is in issue. Shattuck v. Myers, 13 Ind. 46.

266. (265.) When wife or mother may sue.-28. When a husband or father has deserted his family, or is imprisoned, the wife or mother may prosecute or defend, 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.

267. (266.) Father or guardian may sue for injury to child.—29. A father (or in case of his death, or desertion of his family, or imprisonment, the mother) may maintain an action for the injury or death of a child, and a guardian for the injury or death of his ward. But when the action is brought by the guardian for an injury to his ward, the damages shall inure to the benefit of his ward.

An action for an injury causing the death of a child must be brought by the father, the mother or guardian of the child, or, in the absence of these, by the administrator. Pittsburgh, etc., R. W. Co. v. Vining, 27 Ind. 513; Mayhew v. Burns, 103 Ind. 328. To recover damages for loss of service, they should be specially averred. Pennsylvania Co. v. Lilly, 73 Ind. 252.

A widow may sue for the death of her infant child caused by negligence. Ohio, etc., R. R. Co. v. Tindall, 13 Ind. 366; Pennsylvania Co. v. Long, 94 Ind. 250.

If the same act causes injury to a wife and child the husband may recover for both injuries in the same action. Cincinnati, etc., R. R. Co. v. Chester, 57 Ind. 297.

A guardian can only recover for expenditures paid out of the ward's estate. Louisville, etc., R. W. Co. v. Goodykoontz, 119 Ind. 111.

An administrator of a minor child can not sue for the death of the child when the parents are living, unless the child has been emancipated. Berry v. Louisville, etc., R. R. Co., 128 Ind. 484.

268. (267.) Joinder of plaintiffs barred-Striking from record.53. In cases where part only of the persons entitled to bring an action are barred by the statute of limitations, all may be joined as plaintiffs; and when it shall appear to the satisfaction of the court, by admission or otherwise, that part of the plaintiffs are barred by the statute, the court, upon motion, shall order the names of such plaintiffs to be stricken from the record, and the action may be prosecuted by those not barred.

269. (268.) Who defendants.-20. 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 or settlement of the questions involved.

Junior mortgagees are proper, but not necessary, parties in foreclosure. Mack v. Grover, 12 Ind. 254.

The vendee of real estate, who buys pending a suit to foreclose a lien, is not a necessary party, and is bound by the decree. Kern v. Hazlerigg, 11 Ind. 443.

Those liable for tort may be sued either jointly or severally; but this does not apply to our law concerning sheep-killing dogs acting together. Denny v. Correll, 9 Ind. 72. The members of a firm are necessary parties in a suit against it. Durham v. Bischof, 47 Ind. 211.

Joint contractors must all be made parties. Gilbert v. Allen, 57 Ind. 524; Boorum v. Ray, 72 Ind. 151.

A writ of ne exeat may be had against one party to a note, without joining the others. Fitzgerald v. Gray, 59 Ind. 254.

All persons who have an adverse interest to the plaintiff, or who are necessary parties to affect a complete settlement of the matters in issue, are proper parties defendant. Bittinger v. Bell, 65 Ind. 445; Curtis v. Gooding, 99 Ind. 45; Merritt v. Wells, 18 Ind. 171.

If persons who should be plaintiffs refuse to join they may be made defendants. Shoemaker v. Board, 36 Ind. 175; Hill v. Marsh, 46 Ind. 218.

When a mortgagor has conveyed the land he is not a necessary party to a foreclosure suit. Bennett v. Mattingly, 110 Ind. 197.

In actions to recover for damages done by animals of several owners, all or part of such owners may be sued. Brady v. Ball, 14 Ind. 317.

The makers and indorsers of a promissory note can not be joined as defendants when the note is not governed by the law merchant. Mix v. State Bank, 13 Ind. 521; Dale v. Moffitt, 22 Ind. 113.

Persons who have parted with their interest in lands are not necessary parties to suits to enforce liens thereon. Kellenberger v. Boyer, 37 Ind. 188.

The owner of land is a necessary party to a suit to enforce a lien thereon. Marvin v. Taylor, 27 Ind. 73; Simonds v. Buford, 18 Ind. 176.

The wife of a mortgagor who has conveyed the mortgaged lands is a proper party defendant. Watt v. Alvord, 25 Ind. 533.

The assignor of a note secured by mortgage is not a proper party defendant in a foreclosure suit. Gower v. Howe, 20 Ind. 396.

If one person promises to pay an unliquidated debt due from another, the original debtor is a necessary party defendant in a suit to recover the debt. Luark v. Malone, 34 Ind. 444.

In an action to set aside a judicial sale the owner of the judgment is a necessary party defendant, but the officer making the sale is not a proper party. Nelson v. Brown, 20 Ind. 74; Draper v. Vanhorn, 15 Ind. 155.

The owner of property attached for the debt of another can not be made a party defendant to try his claim to the property. Risher v. Gilpin, 29 Ind. 53.

If a defect of parties is not properly raised it is waived. Womack v. McAhren, 9 Ind. 6; Mewherter v. Price, 11 Ind. 199; Thomas v. Wood, 61 Ind. 132.

In an action by a minor to recover for his services, his father is not a necessary party. Haugh, etc., Co. v. Duncan, 2 App. 264.

270. (269.) Joint interest-When one may sue for all.-21. Of the parties in the action, those who are united in interest must be joined as plaintiffs or defendants; but, if the consent of any one who should have been joined as plaintiff can not be obtained, he may be made a 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 where the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.

When suit is brought by one party in behalf of many others, too numerous to be named, it is sufficient if the latter be described with as much certainty as the nature of the case will admit. Sourse v. Marshall, 23 Ind. 194.

The code re-enacts the equity rule for the joinder of parties. common interest, one or more of the number may sue for all. Ind. 174.

When many have a
Tate v. R. R. Co., 10

Persons having separate causes of action against the same defendant can not unite as plaintiffs, but where several persons have a common interest in the relief sought, they may join as plaintiffs though each may have a separate claim. Tate v. Ohio, etc., R. R. Co., 10 Ind. 174; Heagy v. Black, 90 Ind. 534; Greensburgh Co. v. Sidener, 40 Ind. 424; Field . Holzman, 93 Ind. 205; Shoemaker v. Board, 36 Ind. 175; Strong v. Taylor Tp., 79 Ind. 208.

0.

Several creditors may join in a suit on a delivery bond. Mandlove v. Lewis, 9 Ind. 194. All creditors should be parties plaintiff in a suit on an attachment bond. Moore v. Jackson, 35 Ind. 360.

If persons who should join as plaintiffs refuse to do so, they may be made defendants. Shoemaker v. Board, 36 Ind. 175; Hill v. Marsh, 46 Ind. 218.

The cause of such refusal need not be stated in the complaint. Wall v. Galvin, 80 Ind. 447.

271. (270.) Persons liable on same instrument.-22. Persons severally and immediately liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, may, all or any of them, be included in the same action, at the option of the plaintiff.

A joint suit can not be maintained generally against the maker and assignor of a note not negotiable by the law-merchant. Mix v. Bank, 13 Ind. 521.

If the indorser of a note is notified of non-payment of the note he may be sued with the maker. Norvell v. Hittle, 23 Ind. 346.

The makers and indorsers of a note payable in bank may be sued jointly. Hall r. Suitt, 39 Ind. 316.

The principal and sureties on an official bond may be all sued in the same action. State, ex rel., v. Roberts, 40 Ind. 451.

272. (271.) When no abatement- Proceedings-Transfer.-23. No action shall abate by the death or disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of the death or disability of a party, the court, on motion or supplemental complaint at any time within one year, or on supplemental complaint afterward, may allow the action to be continued by or against his representative or successor in interest. 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.

If a defendant die during the pendency of a personal action, after service of process, it may generally be prosecuted to completion against his administrator. Lawson v. Newcomb, 12 Ind. 439.

If there is a transfer of interest pending suit the action may be continued as commenced, or the purchaser may be substituted as plaintiff. Harvey v. Myer, 9 Ind. 391; Mathis v. Thomas, 101 Ind. 119; Pond v. Irwin, 113 Ind. 243.

An assignee in bankruptcy may continue a suit commenced by the bankrupt. Sutherland v. Davis, 42 Ind. 26.

A suit can not be continued in the name of a deceased person. Taylor v. Elliott, 52 Ind. 588.

The administrator of a deceased defendant may be substituted as defendant. Clodfelter v. Hulett, 92 Ind. 426; Holland v. Holland, 131 Ind. 196.

If pending a suit a receiver is appointed the suit should be continued in same name as commenced. Hasselman v. Japanese, etc., Co., 2 App. 180.

273. (272.) Making new parties.-24. 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 can not be had, without the presence of other parties, the court must cause them to be joined as proper parties. 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 made a party by the proper amendment.

A new party should not be made merely for the purpose of settling matters between him and the defendant, in which the plaintiff has no concern. Frear v. Bryan, 12 Ind. 343; Fischer v. Holmes, 123 Ind. 525.

When full and complete justice can not be done without bringing in of new parties, they should be brought in. Scobey v. Finton, 39 Ind. 275; Pickrell v. Jerauld, 1 App. 10.

274. (273.) Interpleader-Notice.-25. 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.

An interpleader will only lie when both the defendants claim the same right. Crane v. Burntrager, 1 Ind. 165; Ketcham v. Brazil Co., 88 Ind. 515; Hall v. Craig, 125 Ind. 523. The court has jurisdiction of parties outside of the county where the lands in controversy are situate. Nofsinger v. Reynolds, 52 Ind. 218.

The application for an inter-plea must show that the persons sought to have substituted have made a demand or claim on the defendant, and an offer to deposit the debt or deliver the property. Mansfield v. Shipp, 128 Ind. 55.

275. (274.) New party-Notice.-848. When a new party is introduced into an action as a representative or successor of a former party, such new party is entitled to the same notice, to be given in the same manner as required for defendants in the commencement of an action.

276. (275.) Party, in action for purchase-money-Decree.—853. In any action brought for the recovery of the purchase-money against any person holding a contract for the purchase of lands, the party bound to perform the contract, if not plaintiff, may be made a party, and the court, in the final judgment, may order the interest of the purchaser to be sold or transferred to the plaintiff upon such terms as may be just; and may also order a specific performance of the contract in favor of the complainant or the purchaser, in case a sale be ordered.

An unpaid vendor is entitled to proceed as a mortgagor. Amory v. Reilly, 9 Ind. 490; Scott v. Crawford, 12 Ind. 410; Bowen v. Fisher, 14 Ind. 104; McCaslin v. Evans, 44 Ind. 151.

An action to compel specific performance of the conveyance of real estate must be brought in the county where it is situated. Parker v. McAllister, 14 Ind. 12.

When one buys real estate pending an action to enforce a vendor's lien against it, he is bound by the decree, and need not be made a party thereto. Green v. White, 7 Blkf. 242; Truitt v. Truitt, 38 Ind. 16; Bibbler v. Walker, 69 Ind. 362.

It is not necessary to aver the insolvency of the purchaser. Huffman v. Cauble, 86 Ind. 591.

277. (276.) Assignor when defendant-Rule as to set-off, etc.- -9. -When an action is brought by the assignee of a claim arising out of contract, and not assigned by indorsement in writing, the assignor shall be made a defendant, to answer as to the assignment or his interest in the subject of the action. And all actions by assignees shall be without prejudice to any set-off or other defense existing at the time of or before notice of the assignment, except actions on negotiable promissory notes and bills of exchange, transferred in good faith and upon good consideration before due.

Any chose in action is assignable by delivery, and the assignee may sue in his own name, making the assignor a party to answer as to his interest. Lynam v. King, 9 Ind. 3.

Part of a note may be assigned, and the assignee may join with the other jointowner in a suit on it. Groves v. Ruby, 24 Ind. 418.

When the assignor of a note without indorsement is dead, his personal representative must be made defendant, or it must be shown that there is none. St. John v. Hardwick, 11 Ind. 251.

In a suit on a note by an assignee, he must aver the mode of assignment. Keller v. Williams, 49 Ind. 504.

Under the statute of this state, a contract of guaranty is assignable. Cole v. Bank, 60 Ind. 350.

Assignment and indorsement are not synonymous terms. Reed v. Garr, 59 Ind. 299; Reed v. Finton, 63 Ind. 288; Gordon v. Carter, 79 Ind. 386.

In an action by an equitable assignee the assignor should be made a party. Nelson r. Johnson, 18 Ind. 329; Clough v. Thomas, 53 Ind. 24.

Can notice be given to an assignor by publication? Nelson v. Johnson, 18 Ind. 329; Swingle v. Bank, 41 Ind. 423.

If the assignment is made by a separate writing, the assignor should be made a party. Strong. Downing, 34 Ind. 300.

The defect of parties may be reached by demurrer. Strong v. Downing, 34 Ind. 300; Clough. Thomas, 53 Ind. 24; Watson v. Conwell, 3 App. 518.