stockholders in an action against the president and treasurer of the corporation, alleging fraudulent acts of the defendants, by means of which his (plaintiff's) stock had become valueless.-(Quere? ED.)

12. An action may be brought by preferred creditors in an assignment for the benefit of creditors, in behalf of themselves and other creditors of the assignment, (where the creditors are very numerous), against the assignee for an accounting, judgment, &c.

13. Where the plaintiff makes a claim which is antagonistic to the claim of another, a hostile interest occurs within the meaning of the cases, which will prevent the joining of the parties as plaintiffs.

14. Where the right to have assigned property converted into cash, is common to all the creditors, the only question being as to the time when it shall be done, there is no antagonism.

15. (6 Q.) An action for a libel by members of a company or of an association, neither being partners nor persons having a community of pecuniary interests (fire company), wherein they could sustain damage, cannot be maintained by them jointly.

16. Where a lease of a vessel has been given by several joint owners, and part of them subsequently bring an action for her hire, the action cannot be maintained at law.

17. Where less than the whole number of joint owners (as lessees of a vessel), proceed to enforce their rights in equity, they must show, in their complaint, facts which excuse them from joining the other co-owners as plaintiff's; and in such case, must join them as defendants.

18. Though the several owners of a vessel are tenants in common as to the ownership of the vessel, yet they own in shares, and are partners in regard to its earnings during any voyage.

19. The several owners of a vessel being partners in regard to its earnings, they should all join in an action for the recovery of freight.

20. Where there is a defect from the non-joinder of parties as plaintiffs, advantage can only be taken under the Code, by answer or demurrer; and an answer upon the merits waives all such defects.

21. All the defendants in a judgment should join as plaintiffs in bringing an action to stay proceedings on the judgment; or if one of them brings the action the others should be made defendants.

22. (7 Q.) The personal representatives of a deceased grantor who was entitled to interest under a trust deed, must bring an action for accumulated interest, after the death of the grantor. The persons entitled to the principal of the trust fund, cannot sustain such an action.

23. (3 Q.) All persons may be made parties in an interpleader suit, who claim au interest in the property in dispute, and whose presence is necessary to a complete determination of the controversy.

24. (10 Q.) Tenants in common, must join in actions for trespass upon their lands, or for a nuisance to the land.

25. Tenants in common must join in trespass or trover, for taking or converting personal property. The same rule as to parties is prescribed by the Code.

26. Where tenants in common have united in an action to recover damages, one of them cannot release, discharge or settle the action, so as to defeat the right of the other to proceed and recover his portion of the damages. He could settle only for his own portion of damages.

27. The settlement of an action for the conversion of personal property by one tenant, in common, without the consent of the other, will only enure as a settlement to the party settling.

28. As one tenant in common has no right to sell the entire property, he has no right to release an entire cause of action belonging to both.

29. Joint owners of land derived from a common ancestor, for an injury to their com mon property, where the damage is common to all, may maintain a joint action.

30. Tenants in common may join in an action for use and occupation, although there has been no express contract between the parties for the letting of the premises.

31. Where one has received a sum of money-the proceeds of real estate belonging to tenants in common, each tenant may maintain a separate action for his proportion.

32. (11 Q.) In an action brought against a trustee for a distributive share of a fund, which he is bound to distribute to different persons in unequal proportions, and the proportionate share of each is not ascertained, all who are interested in the distribution, are necessary parties to the action.

33. Where the proportionate share of each distributee has been definitely ascertained, by a proceeding binding on the trustee holding the fund, each is entitled to demand payment of his share, and may maintain a separate action for its recovery.

34. Where A. places a sum of money in the hands of B.-to be paid over to C.—the latter may maintain an action against B. for its recovery, as so much money had and received to his use.

35. (12 Q.) One of several heirs at law of an owner in fee of demised premises for a term of years, can sue alone to recover his aliquot part of subsequently accruing rent, where the owner dies intestate before the expiration of the lease.

36. Devisees in remainder of premises out of which rent issues. may maintain a joint action against the executor of the life tenant, for rent collected by him, which became due after the termination of the life estate.

37. (13 Q.) Where a breach of covenant converts the claim into a chose in action, the remedy must be sought by the parties in it at the time the cause of action accrued (the breach), unless it had been subsequently assigned.

38. (14 Q.) Two or more persons having separate judgments against the same party, whose remedies at law have been exhausted, may join in a creditor's suit in equity. It is not necessary that they should file separate bills.

39. Although in equity several judgment creditors may join in one suit to reach the equitable property of their common judgment debtor, or remove a fraudulent imcumbrance, they cannot thus unite in an action at law.

40. The remedy, when a creditor's bill was proper before the Code, is still preserved in the form of an action in the supreme court.

41. A creditor may commence an action for his own benefit, or in behalf of himself and all others in the same situation with himself, who may choose to come in and contribute to the expenses of the suit. The rule has not been changed by the Code.

42. It is not a subject of demurrer that all the creditors of the judgment debtor are not joined as plaintiffs.

43. (15 Q.) Under the Code, there cannot be several plaintiffs claiming under distinct titles for distinct interests.

44. where the state have leased premises for a term of years, of which they are owners in fee, the people cannot unite with the lessees and bring an action for the possession of the premises, or the recovery of the rents and profits thereof accrued, either before or after the lease was given.

45. The Code precludes not only all nominal parties, but all having a mere speculative interest in the subject matter of the controversy.

46. (16 Q.) Where the people unite with the individual owners of rights of property in an action to restrain the defendants from entering upon a public street in a city, for the purpose of establishing a railroad thereon, they have no property which is traversed by the proposed railroad by which they can require an injunction on that ground. They are improper parties in such a case.

47. (17 Q.) Where one of several owners of a vessel sues to recover his share of the net earnings, the objection that all the owners do not join as parties must be taken by demurrer, where the defect appears on the face of the complaint.

48. That all of several partners do not join as plaintiffs, is no objection to a recovery

by those who do sue, where the defect appears on the face of the complaint, without being demurred to.

49. Joint owners of a vessel, not otherwise partners, are, in respect to such vessel tenants in common.

50. One of the joint owners of a vessel may sue for his share of a demand due such owners, without joining his co-tenant, whose share has been paid.

51. Persons having no interest in the controversy, although they are general partners of the plaintiff, cannot properly be made parties plaintiff.

52. (18 Q.) As between the executor and heir of a vendor, a contract for the sale of lands is personal estate, and goes to the executor, and not to the heir. Consequently, in an action by the devisees of the vendor against the vendee, to recover the balance of purchase money due upon such contract, the executor of the vendor should be joined as plaintiff.

53. (19 Q.) At common law, all the obligees in a joint penal bond must unite as plaintiffs in an action of debt on the bond, although the condition of the bond be to perform distinct acts for the benefit of the obligees severally.

54. Where a statute bond, given to several attaching creditors, conditioned to pay each creditor the amount due him, and the statute authorizing the bond to be prosecuted by them jointly, or by any one of them separately, in respect to his separate demand, a single creditor may maintain an action on the bond in his own name.

§ 118. Who may be joined as defendants.

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 therein; and in an action to recover the possession of real estate, the landlord and tenant thereof may be joined as defendants; and any person claiming title or a right of possession to real estate may be made parties plaintiff or defendant, as the case may require, to any such action.

1. Question. Has this section been amended since its passage in 1848? Answer. It has, in 1849 and 1867, which last amendment reads as above. 2. Q. How did this section read in 1848 and 1849 ?

A. A follows:

$98. [1848.] Any person may be made a party defendant who has an interest in the controversy adverse to the plaintiff.

§ 118. [1849.] 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 therein.

Questions.

3. Q. Who are properly made defendants in actions in the nature of creditors' bills?

4. Q. In an action on contract made by joint debtors, one of whom is an infant, is it proper to make the infant a party defendant?

5. Q. Is an action brought by one of several public officers against another, for fees collected for the whole, but under an agreement to pay over to each his separate share, an action for accounting requiring all the officers to be made parties?

6. Q. When, in an action for an accounting brought by an assignee, is it not necessary to make the assignor a party? And when, in a creditor's action to set aside a conveyance for fraud in the geueral assignment of the debtor, is it not necessary to make the assignee a party?

7. Q. In an action by a corporation to cancel spurious certificates of its stock, is it proper to make parties defendants all the numerous holders of such certificates?

8. Q. In an action against an executor, to recover a certain sum bequeathed to the plaintiff by the will of the testator, upon the happening of the death of a certain daughter, without lawful issue, is it necessary to make the administrator of the deceased daughter a party defendant?

9. Q. Is it necessary, in actions by or against executors, to join those to whom letters have not issued, and who have not qualified?

10. Q. Who are proper parties in mortgage foreclosure cases?

11. Q. Can a state or a soverign be sued in the courts of another state or nation?

12. Q. When may a joint action be brought against several defendants, for injuries caused by the negligence of one of them?

13. Q. Who are proper parties to be made defendants in actions for partition of real estate?

14. Q. In actions on contract against co-partnership firms, is it necessary to make dormant or other silent partners defendants, in all cases?

15. Q. Is the receiver of a bank properly made a party defendant with the bank, in an action against the bank for a money demand?

16. Q. When may an action for trespass or misfeasance be sustained against both the sheriff and his deputy jointly?

17. Q. When will a joint action for libel or slander lie against two or more persons? 18. Q. In actions for specific performance, and actions affecting those holding written contracts for the conveyance of real estate, what parties are necessary or proper?

19. Q. When are arbitrators proper parties in actions to set aside their awards for acts done by them?

20. Q. Who are proper parties defendant in actions of ejectment, or for the recovery of possession of real property?

21. Q. Is the fraudulent vendee of goods, and his general assignee, liable in a joint action to recover possession of the goods?

22. Q. When may the owner of property, who sells it subject to the payment of a specific claim, which is agreed to be paid by the purchaser, maintain an action therefor against the first purchaser and several subsequent purchasers thereof, some of whom have and some of whom have not agreed to pay such original claim?

23. Q. Where funds of a railroad company are deposited with a trust company, to the credit of a trustee of the former company, who is invested with the title to the funds, on an application by the trustee to the court for instructions, where the conflicting claims of bondholders are made, is it necessary to make the railroad company and trust company parties? 24. Q. Where a creditor of a bank sues a stockholder to recover the debt, is the bank a necessary party?

25. Q. In an action to recover damages for fraud and deceit on a sale of stock to the plaintiff by the defendant, through an agent of the defendant, is it necessary to make the agent a party?

26. Q. In an action by the people with others, to declare unconstitutional a certain act of the legislature, granting liberty to build a railroad in a city, and to restrain the grantees in

the act and the city authorities from proceeding under the act, is the corporation of the city a necessary party?

27. Q. Who are proper parties to be joined as "owner" of a public school building in the city of New York, in an action to enforce a mechanic's lien thereon!

28. Q. Can a suit to recover a joint or joint and several demand be brought jointly against both the surviving debtor and the representatives of a deceased co-debtor ?

29. Q. Can persons be joined as defendants in an action to recover the possession of real property and damages for withholding possession, who have never been in possession, nor received any rents or profits from the premises?

30. Q. Should heirs, inheriting real estate from their intestate parent, be sued jointly to recover debts of the intestate?

31. Q. Who are proper parties defendants in an action by a widow for an assignment of dower, and for rents and profits?

32. Q. When is a person, not a party to a contract alleged to be violated, a proper party to an action for a violation of the contract?

33. Q. In an action for a breach of covenant occurring after the death of the covenantor, who are proper parties defendants?

3. Q. Who are properly made defendants in actions in the nature of creditors' bills? A. In Davis agt. Turner and others, 4 How., 192, Special Term, December, 1849, WILLARD, J., it was decided, that a person not a party to the judgment may be made a party to supplementary proceedings. And an action in the nature of a creditor's bill, against the judgment debtor and others colluding with him to defraud the creditor, may be com

menced.

In Gray agt. Schenck, 4 Comst., 460, April, 1851, GARDINER, J., it was decided, that where the plaintiff, in a judgment creditor's suit, attempts to reach the moneys due upon a mortgage which he alleges has been fraudulently assigned by the debtor, the assignee of the mortgage must be made a party, although he resides out of the state.

In Bank of British North America agt. Suydam and others, 6 How., 379, Special Term, February, 1852, ROOSEVELT, J., it was decided, that where a complaint in the nature of a creditor's bill, against the original debtors and their assignees, seeks to set aside the assignment made for the benefit of creditors, it is not necessary to make all the creditors parties defendant. The assignees in such case represent all the creditors interested in the trust. It would be otherwise if the action was to establish and carry out the assignment, or for portions of the trust fund.

In Vanderpool agt. Van Valkenburgh, 2 Seld., 190, April, 1852, GARDINER, J., it was decided, that where a receiver of the property of a judgment debtor, appointed by the court under a creditor's bill, commences a suit in equity against a trustee of the judg ment debtor, to reach the equitable interest of the latter in a fund held in trust for him, the judgment debtor is a necessary party to the suit.

I Hammond agt. The Hudson River Iron and Machine Company, 20 Barb., 382, Special Term, September, 1855, BoCKES, J., it was dec.ded, that a judgment creditor who has exhausted his remedy at law may obtain relief against his debtor's property in the hands of a fraudulent assignee, by a direct action against the debtor and the assignee, to reach the property thus held under the void assignment. Where an action is brought by a judgment creditor against the judgment debtor, in aid of a suit at law, and the complaint alleges that property and money received by third persons under and by virtue of a fraudulent assignment and judgment is the property of the judgment debtor, such third persons are necessary partics to the action.

In Reid agt. Stryker, 6 Abb., 110, General Term, October, 1857, MASON, J., it was decided, that where, in a creditor's action, the complaint alleges that the judgment debtor has made a fraudulent general assignment, with intent to hinder and delay his creditors, and that the assignee has been guilty of a breach of faith in the management of the assets; and also alleges that the debtor has at various other times made several other conveyances, in fraud of creditors, to various persons made defendants in the action, and seeks to set aside the general assignment, and to render the assignee personally liable, and to set aside such other conveyances as fraudulent; on demurrer, the several transferees will be held to be improperly joined in the action, no connection between the several conveyances, or any privity or concert of action among the different transferees, being shown. Besides, several causes of action are improperly joined or united. (This is reversed by the court of appeals; see S. C., post, under this question.)