but this section does not authorize the assignment of a thing in action not arising out of contract.

1 M. 82 (105), 136 (162); 2 M. 32 (44), 89 (107); 4 M. 309 (407); 12 M. 375; 14 M. 27. 145; 15 M. 132; 21 M. 385; 23 M. 198, 263, 359. $27. Action by assignee subject to set-off, etc.-exception. In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any set-off or other defence existing at the time of, or before notice of, the assignment; but this section does not apply to a negotiable promissory note or bill of exchange, transferred in good faith and upon good consideration, before due.

19 M. 181; 23 M. 175.

§ 28. Executor, trustee, etc., may sue alone. An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. A person with whom, or in whose name, a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this section.

1 M. 195 (246): 4 M. 230 (313); 22 M. 97.

$29. Married women. A married woman may sue or be sued as if unmarried, and without joining her husband, in all cases where the husband would not be a necessary party aside from the marriage relation. (As amended 1869, c. 58, § 1.)

3 M. 133 (202.)

$30. Infant plaintiff-guardian-appointment-bond-removal. When an infant is a plaintiff, he shall appear by his guardian, who shall be appointed by the court in which the action is prosecuted, or by a judge thereof, and shall be a competent and responsible person, resident of this state, and shall file his written consent to such appointment in the office of the clerk of the district court or court of common pleas before the issuing of the summons in such action. Whenever it shall appear to the court or judge that such guardian is not competent or responsible, he may be removed, and another substituted, without prejudice to the progress of the action; and before such guardian shall receive any money or property of such infant he shall be required, by an order of such court or judge, to give a bond, with sufficient sureties, to be approved by such court or judge, to secure such money or property, and account therefor to such infant. (As amended 1871 c. 581.)

§ 31. Infant defendant--guardian. That whenever an infant is a defendant, he shall appear by guardian, to be appointed by the court in which the action is pending, or the judge thereof, or the proper court commissioner; and such court or judge may make such orders as may be necessary for the protection of the rights of such infant defendant. Such guardian must be a resident of this state, and consent in writing to such appointment, which must be filed in the office of the clerk of such court at the time of said appointment. (As amended 1871. c. 59, § 2.)

*$ 32. Guardian for infant party, how appointed. That whenever it shall be necessary to appoint a guardian for any infant, a party to any action, such guardian shall be appointed as follows:

First. When the infant is plaintiff, upon the application of the infant, if he is of the age of fourteen years, or if under that age, upon the application of a relative or friend, or the general or testamentary guardian of the infant; if upon the application of a relative or friend of the infant, notice thereof shall first be given to the general or testamentary guardian of the infant, if he has one within this state; if he has none, and resides within this state, then to the person with whom such infant resides.

Second. When the infant is defendant, upon the application of the infant, if he is of the age of fourteen years, and applies within twenty days after the service of the summons; if he is under the age of fourteen, or neglects so to apply, then upon the application of any other party to the action, or of the general or testamentary guardian, or of a relative or friend of the infant, notice of such application, when made by such party, relative or friend. fist

being given to such general or testamentary guardian, if the infant has one within this state; if he has none, then to the infant himself, if over fourteen years of age, and within this state; or if under that age, and within the state, then to the person with whom such infant resides. If such infant have no general or testamentary guardian within this state, or if such infant be not within this state, notice of such application shall be given by the publication of a copy thereof, once in each week for three successive weeks, in a newspaper printed and published in the county in which the action is brought; and if there is no such newspaper in the county, then in a newspaper printed and published at the capital of the state. The return of the sheriff of the county in which the action is brought, made upon the summons, that such infant defendant cannot be found within such county, shall be prima facie evidence that such infant is not within this state, and that he has no general or testamentary guardian therein. (1877, c. 80, § 1.)

§ 33. (SEC. 32.) Parents or guardians may prosecute for seduction. A father, or in case of his death, or desertion of his family, the 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 is not living with, or in the service of the plaintiff at the time of the seduction, or afterward, and there is no loss of service.

§ 34. (SEC. 33.) Parents may sue for injuries to infants. A father, or in case of his death, or desertion of his family, the mother. may maintain an action for the injury of the child, and the guardian for the injury of the ward.

23 M. 463.

§ 35. (SEC. 34.) Wife may prosecute or defend in name of husband, when. When a husband has deserted his family, the wife 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.

19 M. 174.

§ 36. (SEC. 35.) Joinder of parties to instruments. Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and sureties on the same instrument, may all or any of them be included in the same action, at the option of the plaintiff.

5 M. 264 (333).

*8 37. Discharge of one or more partners or joint debtors. Any creditor who now has, or hereafter may have, a debt, demand or judgment against any copartnership or several joint obligors, or promisors, or debtors, may discharge one or more of such copartners, obligors, promisors or debtors, without impairing his right to recover the residue of his debt or demand against the other copartners, obligors, promisors or debtors, or preventing the enforcement of the proportionate share of any or all undischarged judgment debtors under such judgment. (1867, c. 78, §1.)

* 38. Same-action against parties not discharged. In all such cases a suit may be brought and maintained against all or any of such copartners, joint obligors, promisors or debtors, not so discharged, setting forth, in the complaint thereof, that the contract was made with the defendants and the party so discharged, and that such party has been discharged. Such discharge shall have no other effect than such as is in this act mentioned. (Id. § 2.)

*8 39. Effect of discharge Such discharge shall have the same effect for all purposes, and as to all persons, as a payment, by the party so discharged, of his equal part of the debt, according to the number of debtors, aside from sureties. (Id. § 3.)

*§ 40. Same-rights of partners, etc., inter se. This act shall not be construed so as to affect or change the liability of such copartners, joint obligors, promisors or debtors to each other. (Id. § 4.)

§ 41. (SEC. 36.) Action not to abate by death, eto-proceedings in such case. An action does not abate by the death, marriage, or other disability of a party, or by the transfer of any interest, if the cause of action survives or continues. In case

of the death, marriage, or other disability of a party, the court, on motion, 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 added or substituted in the action. After a verdict of a jury, decision or finding of a court, or report of a referee, in any action for a wrong, such action shall not abate by the death of any party. (As amended 1876, c. 46, § 1.)

1 M. 195 (246); 7 M. 15 (29); 9 M. 279 (295); 10 M. 127 (158); 12 M. 375; 14 M. 220; 17 M. 215; 20 M. 173, 405; 22 M. 542.

$42. (SEC. 37.) Actions against defendants under firm name. When two or more persons, associated in any business, transact such business under a common name, whether it comprises the names of such persons or not, the associates may be sued by such common name, the process in such case being served on one or more of the associates; the judgment in the action shall bind the joint property of all the associates in the same manner as if all had been named defendants.

7 M. 159 (217).

* 43. Bringing in additional parties defendant. Whenever the plaintiff, his agent or attorney, in any action now or hereafter pending in any of the district courts of this state, shall discover that any party ought, in order to a full and just determination of such action, to have been made defendant therein, and shall make an affidavit stating the pendency of such action, and the reasons why such party ought to have been made defendant therein, and present the same to said court or to a judge thereof, the said court or judge shall, if such reasons are deemed sufficient, grant an order reciting the summons by which the action was commenced, and requiring the said party to appear and answer the complaint in said summons named, within twenty days after the service of such order upon him, exclusive of the day of such service; and in default thereof, the judgment or relief demanded in said complaint will be rendered against him, in all respects as though he had been made a party to such action in the first instance. (1868, c. 79, § 1.)

*§ 44. Same-service of order. The order shall be served upon the party in the manner now provided by law for the service of a summons in said court in civil actions. (ld. §2.)

45. Same-stay of proceedings. The said court or judge may, upon application of the plaintiff, at the time of applying for the order in the first section of this act named, or at any time thereafter, make an order staying all further proceedings in said action, for such time as may be necessary to enable the plaintiff to have the said party in said action named brought into court to defend in said action. (Id. § 3.)

* 46. Same-further proceedings. After a party has been brought into court under the provisions of this act, the action shall proceed against all the parties thereto, in the same manner as though they had all been originally made defendants therein. (Id. § 4.)

NOTE. See post c. 75, § 5, as to suits affecting real property against unknown heirs.

TITLE. 4.

THE PLACE OF TRIAL OF CIVIL ACTIONS.

§ 47. (SEC. 38.) What actions to be tried in county where subject is situated. Actions for the following causes shall be tried in the county in which the subject of the action, or some part thereof, is situated, subject to the power of the court to change the place of trial as hereinafter provided:

First. For the recovery of real property, or of an estate or interest therein, or for the determination in any form of such right or interest, and for injuries to real property

Second.-For the partition of real property.

Third.-For the foreclosure of a mortgage of real property.

Fourth.-For the recovery of personal property detained for any cause. (As amended 1876, c. 51, § 1.)

1 M. 223 (287); 5 M. 113 (148); 21 M. 15.

$48. (SEC. 39.) What actions to be tried in county where cause of action arose.

Actions

for the following causes shall be tried in the county where the cause or some part thereof arose, subject to the power of the court to change the place of trial as provided by law:

First. For the recovery of a penalty or forfeiture imposed by statute, except that where it is imposed for an offence committed on a lake, river, or other stream of water situated in two or more counties, the action may be brought in any county bordering on such lake, river or stream.

Second. Against a public officer, or person specially appointed to execute his duties, for an act done by him in virtue of his office, or against a person who, by his command or in his aid, does anything touching the duties of such officer.

5 M. 113 (148.)

§ 49. (SEC. 40.) Other actions, where triable—change of venue-actions of replevin— residence of corporations. In all other cases, except when the state of Minnesota is plaintiff, the action shall be tried in the county in which the defendants, or any of them, shall reside at the commencement of the action; or if none of the parties shall reside or be found in the state, or the defendant be a foreign corporation, the same may be tried in any county which the plaintiff shall designate in his complaint, subject, however, to the power of the court to change the place of trial, in the cases provided by law. If the county designated for that purpose in the complaint be not the proper county, the action may, notwithstanding, be tried therein, unless the defendant, before the time for answering expires, demand in writing that the trial be had in the proper county, and the place of trial shall be thereupon changed to the proper county, by the order of the court, unless the parties consent thereto: provided, that in an action for the claim and delivery of personal property wrongfully taken, the action may be brought and maintained in the county where the wrongful taking occurred, or where the plaintiff resides. A corporation shall be deemed to reside in any county where it has an office, agent, or place of business, within the meaning of this section. The court may change the place of trial of actions included in this section, as provided by law, as in other actions. (As amended 1877, c. 68, § 1, and 1878, c. 38, § 1.)

1 M. 223 (287); 5 M. 113 (148).

§ 50. (SEC. 41.) Actions by attachment against non-residents. If the defendant is a non-resident of this state, and the plaintiff proceeds against him, by attaching his property, such action may be brought in any county where the defendant has property liable to attachment.

§ 51. (SEC. 42.) Change of venue, in what cases—in what manner. If the county designated for that purpose in the complaint is not the proper county, the action may, notwithstanding, be tried therein, unless the defendant, before the time for answering expires, demands in writing that the trial be had in the proper county, and the place of trial is thereupon changed by consent of parties or by order of court, as is provided in this section. The court may change the place of trial in the following cases:

First. When the county designated for that purpose in the complaint is not the proper county;

Second. When there is reason to believe that an impartial trial cannot be had therein;

Third. When the convenience of witnesses, and the ends of justice, would be promoted by the change;

Fourth. A change of venue may, in all civil cases, be made, upon the con

sent in writing of the parties or their attorneys. When the place of trial is changed, all other proceedings shall be had in the county to which the place of trial is changed unless otherwise provided by the consent of the parties in writing duly filed, or order of the court; and the papers shall be filed or transferred accordingly.

21 M. 15

TITLE 5.

SERVICE OF SUMMONS, PLEADINGS, NOTICES, AND APPEARANCE OF PARTIES.

$52. (SEC. 43.) Actions, how commenenced. Civil actions in the several district courts of this state shall be commenced by the service of a summons, as hereinafter provided.

$53. (SEC. 44.) Requisites of summons. The summons must be subscribed by the plaintiff or his attorney, and directed to the defendant, requiring him to answer the complaint, and serve a copy of his answer on the person whose name is subscribed to the summons, at a place within the state therein specified, in which there is a post-office, within twenty days after the service of the summons, exclusive of the day of service. (As amended 1867, c. 62, § 1.)

9 M. 206 (221); 12 M. 80. 255; 14 M. 537.

§ 54. (SEC. 45.) Notice to be contained in summons. The summons shall also contain a notice, in substance as follows:

First.-In an action arising on contract for the payment of money only, that he will take judgment for a sum specified therein, if the defendant fails to answer the complaint.

Second.-In other actions for the recovery of money only, that he will, upon such failure, have the amount he is entitled to recover ascertained by the court, or under its direction, and take judgment for the amount so ascertained. Third.-In other actions, that, if the defendant fails to answer the complaint, the plaintiff will apply to the court for the relief demanded therein.

14 M. 537.

$55. (SEC. 46.) Service of complaint-proceedings when complaint is not served. A copy of the complaint must be served upon the defendant with the summons, unless the complaint itself be filed in the office of the clerk of the district court of the county in which the action is commenced, in which case the service of the copy may be omitted; but the summons in such case must notify the defendant that the complaint has been filed with the clerk of said court; and if the defendant appear within ten days after the service of the summons, the plaintiff must serve a copy of the complaint on the defendant or his attorney, within five days after the notice of such appearance, and the defendant shall have at least ten days thereafter to answer the same; and no judgment shall be entered against him for want of an answer in such case till the expiration of the time. (As amended 1867, c. 62, § 2.)

§ 56. (SEC. 47.) Summons, by whom served. The summons may be served by the sheriff of the county where the defendant is found, or by any other person not a party to the action; and the service shall be made, and the summons returned and filed in the clerk's office, with all reasonable diligence.

15 M. 288.

*8 57. Fees for service not allowed, when. Whenever any person, other than a sheriff or other proper officer, shall serve a summons issued out of the district court, no fee shall be allowed therefor, either for travelling in making such service, or for serving such summons. (1874, c. 80, § 1.)

*8 58. Service in Ramsey county. That all writs of summons to be hereafter issued in any civil action, to be served within the said county of Ramsey, shall be served NOTE. As to the appointment, by a non-resident land-owner, of an agent to accept service, and as to service on unknown heirs, see post, c. 75, §§ 1, 5.