apply to our law concerning sheep-killing dogs acting together.-Denny v. Correll, Ind. 72. 9 4. The members of a firm are necessary parties in a suit against it.-Durham v. Bischof, 47 Ind. 211. 5. Joint contractors must all be made parties.-Gilbert v. Allen, 57 Ind. 524. 6. A writ of ne exeat may be had against one party to a note, without joining the others. Fitzgerald v. Gray, 59 Ind. 254. 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. (19.) 1. 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. 2. The Code re-enacts the equity rule for the joinder of parties. When many have a common interest, one or more of the number may sue for all.-Tate v. R. R. Co., Io Ind. 174. 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. (20.) 1. 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. In 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. 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. 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. (21.) 1. 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. 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. (22.) 1. 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. 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. (23.) 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. (786.) 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. (791.) 1. An unpaid vendor is entitled to proceed as a mortgagor.-Amory v. Reilly, 9 Ind. 490; Scott. Crawford, 12 id. 410; Bowen v. Fisher, 14 id. 104; McCaslin v. Evans, 44 id. 151. 2. An action to compei specific performance of the conveyance of real estate must be brought in the county where it is situated.-Parker v. McAllister, 14 Ind. 12. 3. 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 Blackf. 242; Truitt v. Truitt, 38 Ind. 16; Bibbler v. Walker, 69 id. 362. 276. Assignor when defendant-Rule as to set-off, etc. 9. When any 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. (6.) I. 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. 2. Part of a note may be assigned, and the assignee may join with the other joint. owner in a suit on it.-Groves v. Ruby, 24 Ind. 418. 3. 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. 4. In a suit on a note by an assignee, he must aver the mode of assignment.-Keller . Williams, 49 Ind. 504. 5. Under the statute of this State, a contract of guaranty is assignable.—-Cole v. Bank, 60 Ind. 350. 6. Assignment and indorsement are not synonymous terms.-Reed v. Garr, 59 Ind. 299; Reed v. Finton, 63 id. 288. 277. New party, how brought in by defendant. 99. When it is necessary for the defendant to bring a new party before the Court, he may state the matter relating thereto in his answer, and demand relief; and thereupon a summons shall issue and other proceedings be had against him as if such matter had been exhibited in the original complaint. (63.) 1. The complaint of one defendant against a co-defendant, that he is surety for the latter, is not an answer or cross-complaint, but is a new proceeding which can not be tried upon the plaintiff's summons.-Joyce v. Whitney, 57 Ind. 550. SEC. ARTICLE 3-JOINDER OF CAUSES OF ACTION. 278. What causes of action joined. 279. Actions for title papers Reformation, etc. SEC. 280. Joinder in matters of contract-Separate trials. [1881 S., p. 240. In force September 19, 1881.] 278. What causes of action joined. 106. The plaintiff may unite several causes of action in the same complaint, when they are included in either of the following classes: First. Money demands on contract. Second. Injuries to property. Third. Injuries to person or character. Fourth. Claims to recover the possession of personal property, with or without damages for the withholding thereof, and for injuries to the property withheld. Fifth. Claims to recover the possession of real property, with or without damages, rents, and profits for the withholding thereof, and for waste or damage done to the land; to make partition of and to determine and quiet the title to real property. Sixth. Claims to enforce the specific performance of contracts, and to avoid contracts for fraud or mistakes. Seventh. Claims to foreclose mortgages; to enforce or discharge specific liens; to recover personal judgment upon the debt secured by such mortgage or lien; to subject to sale real property upon demands against decedents' estates, when such property has passed to heirs, devisees, or their assigns; to marshal assets; and to substitute one person to the rights of another; and all other causes of action arising out of a contract or a duty, and not falling within either of the foregoing classes. But causes of action so joined must affect all the parties to the action, and not require different places of trial, and must be separately stated and numbered. (70.) 279. Actions for title papers-Reformation, etc. 107. When the plaintiff desires to recover the possession of title papers or other instruments of writing, or correct any mistakes therein, a separate action may be brought therefor; or the possession of such title papers or other instruments of writing may be recovered, or mistakes corrected in any other action, when such recovery or correction would be essential to a complete remedy. (71.) 1. A mortgage may be reformed and foreclosed in the same suit.-Miller v. 47 Ind. 220. Kalb, 2. A deed may be reformed and title quieted in the same action.-Hunter v. McCoy, 14 Ind. 528. 3. A note may be reformed and enforced in the same cause.-Conger v. Parker, 29 Ind. 380. 280. Joinder in matters of contract - Separate trials. 108. When the action arises out of contract, the plaintiff may join such other matters in his complaint as may be necessary for a complete remedy and a speedy satisfaction of his judgment, although such other matters fall within some other one or more of the foregoing classes. When several causes of action are united, belonging to any of the foregoing classes, the Court may order separate trials, for the furtherance of justice. (72.) 1. The same proceeding may include the collection of a debt and the setting aside of a fraudulent conveyance.-Love v. Mikals, 11 Ind. 227. 2. Judgment upon a claim against the husband may be had in the same case with decree, to avoid a fraudulent conveyance to the wife.-Frank v. Kessler, 30 Ind. 8. Sec. ARTICLE 4-CAUSES OF ACTION THAT SURVIVE. 281. Where actions survive - Representatives, SEC. 283. All other actions survive - Exception. [1881 S., p. 240. In force September 19, 1881.] 281. Where actions survive Representatives. 5. In all cases where actions survive, they may be commenced by or against the representatives of the deceased to whom the interest in the subject-matter of the action has passed. (5.) 282. What actions die-Exception. 6. A cause of action arising out of an injury to the person dies with the person of either party, except in cases in which an action is given for an injury causing the death of any person, and actions for seduction, false imprisonment, and malicious prosecution. (782.) 1. An action for injury to the person abates with the death of the plaintiff. Its pendency can not be pleaded to bar an action for the death of such person.~ Indianapolis, etc., R. K. Co. v. Stout, 53 Ind. 143. 2. A cause of action in favor of a parent for seduction survives. Gimbel v. Smidth, 7 Ind. 627. 3. A right of action for bastardy survives the death of the defendant. r. Williams, 8 Ind. 191. State, ex rel., 4. Where the death of a married woman was caused by malpractice of a physician, It was held that a cause of action survived to her husband and administrator. Long r. Morrison, 14 Ind. 595. 5. The personal representatives of a deceased can only recover for an injury causing his death when he might have recovered for such injury if he was alive. Lofton v. Yogles, 17 Ind. 105. 6. If the plaintiff in a suit for any injury that dies with the person dies before final judgment, his administrator can not continue the action. Stout . Indianapolis, etc., R. R. Co., 41 Ind. 149. 7. An action for causing the death of a person does not survive against the personal representatives of the wrong-doer. Hamilton v. Jones, 125 Ind. 176. 8. If a parent sues for the death of a child and dies pending suit, his personal representatives may continue the action. Penn. Co. r. Davis, 4 App. 51. [1897 S., p. 227. In force April 15, 1897.] 282a. Survival of claim on appeal. I. That whoever has a claim for personal injuries and obtains judgment for the same against any person, company or corporation in any trial court of this state, and from which judgment any person, company or corporation, against whom or which the same was obtained, shali appeal to the supreme or appellate court of this state, and such judgment be reversed by such supreme or appellate court, and a new trial be granted to appellant thereon; and if the person who obtained such judgment should die, pending such appeal, or before a new trial after such reversal can be had; such claim for personal injuries shall survive and may be prosecuted by the personal representatives of such decedent, as other claims are prosecuted for and on behalf of decedents' estates. [1881 S., p. 240. In force September 19, 1881.] 283. All other actions survive - Exception. 7. All other causes of action survive, and may be brought by or against the representatives of the deceased party, except actions for promises to marry. (783.) 1. An action survives against the personal representatives of a deceased surety. McCoy v. Payne, 68 Ind. 327; Hudelson v. Armstrong, 70 Ind. 99. 2. The penalty imposed by statute for giving a false list of taxables survives against the personal representative of the tax-payer. Davis v. State, ex rel., 119 Ind. 555. 284. Action for death of another — Limitation. 8. When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he or she (as the case may be) lived, against the latter for an injury for the same act or omission. The action shall be commenced within two years. The damages can not exceed ten thousand dollars, and must inure to the exclusive benefit of the widow, or widower (as the case may be), and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased. [As amended 1899 S., p. 405. In force April 28, 1899. (784.) 1. The action for damages for death, under this section, is wholly statutory, and can not be joined with one for another cause.-Cincinnati, etc., R. R. Co. v. Chester, 57 Ind. 297. 2. The father may, under this section, maintain an action for damages for the death of a minor child, but section 560 forbids a new trial for "smallness of damages" assessed.-Gann v. Worman, 69 Ind. 458; Mayhew v. Burns, 103 Ind. 328. 3. Compensatory damages in such cases include compensation for pain and suffering, as well as for pecuniary expenditures of the injured party.-Ohio, etc., R. R. Co. v. Dickerson, 59 Ind. 317. 4. The names, and relationship to the deceased, of the persons entitled to receive the damages, should be stated in the complaint. Indianapolis, etc., R. R. Co. v. Keely, 23 Ind. 133; Stewart v. Terre Haute, etc., R. R. Co., 103 Ind. 44. 5. The action must be commenced within two years after the death and the complaint should show that the action is not barred. Hanna v. Jeffersonville R. R. Co., 32 Ind. 113. 6. A foreign administrator may sue in this state to recover for the death of his decedent in this state. Jeffersonville, etc., R. R. Co. v. Hendricks, 41 Ind. 48. 7. Where the relation of parent and child does not exist the action must be brought by the personal representative, regardless of the age of the deceased. Mayhew v. Burns, 103 Ind. 328. 8. In an action by a parent for the death of a child the damages are confined to the pecuniary injury sustained. Pennsylvania Co. v. Lilly, 73 Ind. 252. 9. A defendant is not a competent witness generally, in his own behalf, in actions to recover for the death of a person. Hudson v. Houser, 123 Ind. 309. 10. The action can not be inamtained against the personal representatives of the wrong-doer. Hamilton v. Jones, 125 Ind. 176. 11. If the death of a minor is wrongfully caused his administrator can not sue therefor while the minor has a living parent, unless such minor had been emancipated. Berry v. Louisville, etc., R. R. Co., 128 Ind. 484. 12. See Hecht v. Ohio, etc., R. W. Co., 132 Ind. 507. [1899 S., p. 58. In force February 17, 1899.] 284a. Contributory negligence-Need not allege or prove. 1. That hereafter in all actions for damages brought on account of the alleged negligence of any person, copartnership or corporation for causing personal injuries, or the death of any person, it shall not be necessary for the plaintiff in such action to allege or prove the want of contributory negligence on the part of the plaintiff, or on the part of the person for whose injury or death the action may be brought. Contributory negligence, on the part of the plaintiff, or such other person, shall be |