the mortgagors. Conde v. Shepherd, 4 Pra. R., 75. S. C. Conde v. Nelson, 2 Code Rep. 58.

It is not necessary to join all the parties to a tort as defendants, one or more or all may be sued jointly or each separately. 6 Johns. R. 26, 31. Where the tort, however, consists of verbal slander by two or more, a separate action must be brought against each, they cannot be sued jointly. Ib.

An action to recover real property should be brought against the person in the actual occupation or possession of the premises, and it is now proper to add as defendants, all persons who have or claim an interest in the controversy adverse to the plaintiff. Waldorph v. Bortel, 4 Pr. R. 358.

Under the former practice when the premises were actually occupied, the action of ejectment could only be brought against the person in possession. It was only where the premises were not so occupied that the action might be brought against some person exercising acts of ownership over the premises claimed, or claiming title thereto, or some interest therein. (2 R. S. 400.) Shaver v. McGraw, 12 Wend. 558. This rule, however, as to parties in action to recover possession of real property is now changed, and section 118 is applicable to every civil action, including as well, cases in which the remedy would formerly have been at law, as those in equity. The practice in all actions now, is the same as in our late court of chancery, and in an action to recover possession of land, all persons claiming title to, or an interest in the property, may be made defendants as well as the persons in actual possession. The plaintiff now makes parties defendants at the peril of paying the costs of those who have judgment in their favor. Ib. And see note to section 111.

§ 119. [99.] Parties to be joined, &c.—Of the parties to 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, cannot 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 when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.

$120. [100.] Parties to bills and notes, &c.—Persons severally 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.

See section 304 of this code as the effect of bringing several actions on one bond, recognizance, promissory note, bill of exchange, or other instrument in writing, or in any other case for the same cause of action against several parties who might have been joined as defendants in the same action.

As a joint judgment against all the parties is as effectual as a separate judgment against each would be, it is generally advisable to include all in one action, especially as no costs other than disbursements are allowed to the plaintiff in more than one action, if he bring several actions against parties who may be joined in one. See section 304 of this code.

121. [101.] Action when not to abate.-No action shall abate by the death, marriage or other disability of a party, or by the transfer of any interest therein, if the cause of action survive

or continue. In case of death, marriage or other disability of a party, the court, on motion, at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. In 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.

This section is identical with section 101 in the code of 1848, and under that code it was held that a bill of revivor and supplement was necessary to revive a suit commenced before July, 1848, except in cases where the party sought to be made a defendant would voluntarily come in as a party to the suit. Phillips v. Drake, 1 Code Rep. 63.

Thus in a suit pending on the 1st of July, 1848, one of the defendants died after July 1, 1848, and motion was made for an order under this section, to allow the suit to be continued against the successor in interest of such deceased defendant. The successor in interest had notice of the motion, and opposed its being allowed, and per Edmonds, J. "I do not see that granting this motion would serve the party making it. It is true, that under section 101 (now 121) I may grant this motion, and if this was an action commenced since the code took effect, section 102 (now 122) would enable me to make such an order as would be of some utility; but this was a suit pending when the code went into operation, and section 101 (now 121) applies, but that section only gives me power to allow the successor in interest to be substituted; and section 102 (now 122) is not made applicable to this case; unless, therefore, the successor in interest will come in voluntarily and be made a party to the suit, I have no power in the matter. In this case the successor in interest, the trustee of the deceased defendant, refuses to consent to be made a party, and any order I may make will be inoperative. The code does not provide any means either of compelling the successor in interest to be made a party or of taking judgment against him by default. The only remedy open to the plaintiff is that provided by the former practice, a bill of revivor and supplement." Phillips v. Drake, 1 Code Rep, 63.

It has since, however, been adjudged that this section, so far as it is made applicable to suits pending before July, 1848, and to transfer of interest made before that time, is unconstitutional. Vrooman v. Jones, 5 Pr. R. 369. This was held in an action of ejectment which was commenced, tried, and a new trial ordered, prior to July, 1848. Such a case must be governed by the revised statutes, (2 R. S. 387, s. 4.) which enact in substance that the death of either party after verdict or plea of confession, and before judgment, shall not abate the action, but the court may within two terms after such verdict or confession, enter final judgment in the names of the original parties. An administrator of a deceased plaintiff may have leave to continue the action if the pleadings show a cause of action which survives without regard to the merits of the action. Wing v. Ketcham, 3 Pr. R. 385, 2 Code Rep. 7.

An action brought against a sole defendant to recover the possession of land, may be continued after the death of the defendant intestate against his heirs at law, claiming to have succeeded to his legal rights and to own the land. Waldorph v. Bortel, 4 Pr. R. 358.

After the death of one of several plaintiffs, in an ejectment suit commenced before the code took effect, a motion was made by the surviving plaintiffs at special term, to substitute the names of two individuals and the people of the State, to prosecute the suit, as representatives or successors in interest of the deceased plaintiff. It being a matter of doubt which of the three parties proposed was entitled to the right, the first being sole trustee under the will, it being doubtful whether he would take the title or only a power in trust, the second being an heir, but doubtful whether a citizen of the United States-and if neither of the two had the right, it was doubtful whether it did not pass by escheat to the people of the State. The motion was denied. St. John v. West, 4 Pr. R. 329, 3 Code Rep. 85.

And per Selden, J., on dismissing an appeal from the order denying the motion. In this case the motion was threefold: to substitute the names of the heir of the deceased, the trustee under the will, and of the people of the State.

The defendant insists that, conceding that the statutory provision referred to would authorize the substitution of the names of the heir and trustee, it does not extend to the people, and consequently, so far as that branch of the motion is concerned, it must be regarded as an application to amend the declaration by adding a new party; and as addressed to the discretion of the court.

To this it is answered, that in case of an escheat, the people in respect to the ownership of the property, succeed directly to the deceased proprietor; that they and the last owner bear to each other the relation strictly of predecessor and successor, and consequently by the express terms of the section, the people have the same right to be substituted as the heir. Is this a sound interpretation of the statute? The object of the provision is to prevent the abatement of a suit, where the same rights which the suit is brought to enforce, continue; and where nothing is changed but the person in whom the right is vested. But do the people of the State in case of an escheat succeed to the rights of the last proprietor? Is their title the same, to be deduced through the same channels, and supported by the same evidence? Manifestly not. Theirs is a prior right, which has become paramount by reason of the extinction of that upon which the action was founded. It cannot be said in any sense that they derive their title from the last owner. His was secondary and derivative; theirs original and primary. My conclusion therefore, is, that the term successor as used in the statute, does not include the people when they claim by escheat; and that even if it would be proper in any case to allow them to be joined as plaintiffs in the same suit with private persons, for the benefit of the latter, the application for such a privilege must be considered as asking a favor of the court, and not as a matter of strict right.

The statute gives the right of continuing the suit in the name of the representative or successor in interest. In order to avail himself of this right, the party must show who is the successor. He must make out a prima facie case before the right attaches. This certainly he cannot do in the case of two persons not claiming in the same character.

He may, as is assumed to have been done here, make a case of doubt which of the two is entitled to the right. But this does not give to either the right, under the statute, of being substituted in the suit. The person to whom the title has passed, being ascertained, the statute gives to him the right of prosecuting the suit, and to no other. It gives no right of experimenting as to the proper party. It was decided in the case of Boynton v. Hoyt (1 Denio, 50), that a party claiming to be substituted under the corresponding provisions of the revised statutes, must show himself prima facie to have succeeded to the title. The applicants here have not asked that the court should determine upon the facts presented, which of the three parties has succeeded, and to substitute such party. This perhaps they might have done: but they ask to be permitted to include two persons who are conceded to be without title. It may be proper in many cases to avoid a multiplicity of suits, or to save a right from. the operation of the statute of limitations, that the court should permit, in a case of doubt, a number of names to be used; but this is clearly not a matter of strict right,. but a question of discretion. Ib.

And see amendment to section 122.

Where in an action against a non-resident defendant, the summons is served by publication under an order of the judge, the suit is not commenced until the expiration of the time prescribed for publication, so that if the defendant die before the expiration of such time, no action is pending that can be revived against his representatives. McEwens Ex'r. v. Public Administrator. 3 Code Rep. 139.

The motion to continue the action must in the case of a sole plaintiff be made by his executor or administrator. In the case of several plaintiffs it may be made by a surviving plaintiff or by the executor or administrator of the deceased plaintiff, and. it is said that the motion to continue the suit may be made by the defendant in case no motion for that purpose be made by a surviving plaintiff or the representative of a deceased plaintiff, within a reasonable time. The motion should be noticed for a special term, and be supported by an affidavit of the facts on which the motion is founded. It will be observed, that the motion is to be made within one year from the happening of the death, marriage, or other disability, and if the party entitled to

move, omit to do so within a year and afterwards desire to continue the suit, he may do so, it is said, by resorting to a supplemental pleading.

§ 122. [102.] (Amended.)-Court may determine controversy, &c.-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.

Interpleading.—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 amendments are in italic.

This section is the controlling section in determining whether a demurrer for defect of parties is well taken or not. Mason, J., in Wallace v. Eaton, 5 Pr. R. 99, 102. See note to section 121 of this code.

The amendment is taken from the codifiers report, of 1850, (Civil code, ss. 613, 614,) and they observe in a note that, "the object of this section is to save the necessity in most cases of an action to compel two parties claiming the same thing to settle the controversy between them by interpleading. The interpleader act in England was passed for the same purpose." The statute referred to by the commissioners is the 1 & 2 William 4, cap. 58, which enacts in effect as follows: That upon application made by or behalf of any defendant" after declaration and before plea, by affidavit or otherwise, showing that such defendant does not claim any interest in the subject matter of the suit, but that the right thereto is claimed or supposed to belong to some third party who is sued or has expected to sue for the same, and that such defendant does not, in any manner collude with such third party, but is ready to bring into court, or to pay or dispose of the subject matter of the action in such manner as the court (or any judge thereof,) may order or direct, it shall be lawful for the court, or any judge thereof, to make rules and orders calling upon such third party to appear and state the nature and particulars of his claim, and maintain or relinquish his claim, and upon such rule or order to hear the allegations as well of such third party as of the plaintiff, and in the meantime to stay the proceedings in such action, and finally to order such third party to make himself defendant in the same or some other action, or to proceed to trial on one or more feigned issue or issues, and also to direct which of the parties shall be plaintiff

or defendant on such trial, or, with the consent of the plaintiff and such third party, their counsel or attorneys, to dispose of the merits of their claims and determine the same in a summary manner, and to make such other rules and order therein as to costs and all other matters as may appear to be just and reasonable."

The object of this statute, says Mr. Chitty, is to give relief without compelling the party seeking it to have recourse to a bill of interpleader. The act does not take away the right of a party to file a bill of interpleader, for the remedy is merely concurrent. Chitty's Genl. Pr. vol. 2, p. 345. With reference to the persons entitled to the benefit of the act, a party who by his own act is placed in a position to be sued, cannot call upon the court to substitute another defendant in his stead. 9 Bing. 82; and a defendant who is sued for the recovery of property in his possession in which he has no interest, but which is claimed by a third party, cannot apply to be relieved under the statute against the claim of the plaintiff, and such third party, if he has an indemnity from the claimant. Tucker v. Morris, and M. 1 C. 73, S. C. 1 Dowl. 639. A lien however attaching upon the goods in dispute, and which must be satisfied by the party who ultimately turns out to be entitled to them, does not prevent the party who holds the goods from applying to the court for relief. Cotter v. Bank of England, 3 Mo. & S. 180, S. C. 2 Dowl. 728, But the case of a wharfinger who claims a lien on goods for wharfage, &c. which attaches only on one of the parties by whom the goods are claimed, is not within the act. 2 Mo. & S. 131 9 Bing. 84. Goods consigned to A. and warehoused in the London docks, were claimed by B. The dock company refused to deliver them to A. without an indemnity, whereupon A. brought trover, with counts for special damage for the detention. The company applied for relief under this act, and it was granted to them. Lucas v. London Dock Co., 4 B. and Ad. 378. The court cannot relieve a stakeholder until action brought against him, and declaration, but if acting in good faith he will be allowed his costs out of the fund in court. Parker v. Linnett, 2 Dowl. 562.

Where a party is sued in two courts, he must obtain interpleader orders in both. Allen v. Gilby, 3 Dowl. 143. If the parties do not appear to oppose the making of the order there must be an affidavit of the service of notice, &c. upon them, and the court will make the order in their absence. Jervis's Rules, p. 40.

Where the plaintiff sold to the defendant goods of a party deceased, to whom a third party afterwards took administration and claimed the price, held that was not a case within the act; but the ground of refusal to pay to the plaintiff was to be shown by plea. James v. Pritchard, 8 Dowl. 890; 7 Mees. & W. 216.

Where the defendant advertised a reward for information leading to the discovery of a felony, and several parties having given information, more or less material, claimed the reward, held not a case within the statute. Gay v. Whitman, 5 Sc.

795.

Where the defendant was liable to pay purchase money to one or other of two parties, held, that it being a matter of interest to him to know to whom he was to pay, it could not be said that he did not claim any interest in the subject-matter of the suit, and that it was not a case within the act. Newton v. Moody, 7 Dowl.

582.

Where the depositary claimed a personal interest in part of the fund claimed by one of the claimants; held, that it was not a subject of an interpleading order. Moore v. Usher, 7 Sim. 384.

So where he had by admission given to one of the claimants a right of action against him in respect of the subject of claim. Crawshay v. Thornton, 7 Sim. 391. Confirmed on appeal, 2 Myl. & Cr. 1, and see Pearson v. Cardon, 4 Sim. 218; and affirmed on appeal, 2 Russ. and M. 606.

Where the adverse claim was set up in respect of money due on a contract for work and labor, held that the act did not apply. Turner v. Kendall, Mayor of, 2 Dowl. and L., 197; 13 Mees. and W., 171.

A purchaser cannot call upon his vendor to interplead with a third party, claiming to be the owner of the goods sold, although the one is suing for the price and the other to recover the goods in trover, such being a case to which the statute does not apply. Slaney v. Sidney, 14 Mees. and W., 800; 3 Dowl. and L., 250.

The rule refused at the instance of a stake-holder of money on an illegal wager. Applegarth v. Colley, 2 Dowl. N. S., 223. Where a party, seeking relief, has given to any other of the litigant parties a right against himself independent of the property in dispute, held not a case within the act; held also that the court had no right to bar