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Limitation from

date of last payment.

Prosecutions in

the name of real party.

When set-off's not

to be good against assignee.

How executors, guardians or

actions.

SEC. 31. In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same, shall have been made, an action may be brought on such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.

TITLE III.

PARTIES TO CIVIL ACTIONS.

SEC. 32. Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section thirty-four; but this section shall not be deemed to authorize the assignment of a thing in action, not arising out of contract.

SEO. 33. In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any setoff or other defence now allowed; but this section shall not apply to negotiable bonds, promissory notes, or bills of exchange, transferred in good faith and upon good consideration before due.

SEC. 34. An executor, administrator, guardian, trustee of an agents may bring express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him, the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way.

Officers how sued,

A married

woman must be joined with her husband.

Actions between

SEC. 35. When a married woman is a party, her husband must be joined with her; except when the action concerns her separate property, she may sue without her husband. When the action is husband and wife. between herself and her husband, she may sue or be sued alone. SEC. 36. If a husband and wife be sued together, the wife may defend for her own right; and if the husband neglect to defend, she may defend for his right also.

Wife may defend.

How action for an infant must be brought.

Guardian liable

for costs; secur

ity required.

SEC. 37. The action of an infant must be brought by his guardian or next friend. When the action is brought by his next friend, the court has power to dismiss it, if it is not for the benefit of the infant, or to substitute the guardian of the infant, or any person, as the next friend.

SEC. 38. The guardian, or next friend, is liable for the costs of the action brought by him, and when he is insolvent, the court may require security for them. Either may be a witness in an action brought by him.

The

defend for ward.

SEC. 39. The defence of an infant must be by a guardian for Guardian must the suit, who may be appointed by the court in which the action. is prosecuted, or by a judge thereof, or by a probate judge. appointment cannot be made until after the service of the summons in the action, as directed in this code.

pointed.

SEC. 40. The appointment may be made upon the application Guardian how apof the infant, if he be of the age of fourteen years, and apply

within twenty days after the return of the summons. If he be under the age of fourteen, or neglect so to apply, the appointment may be made upon the application of any friend of the infant, or on that of the plaintiff in the action.

SEC. 41. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title.

Persons in inter

est may be joined

as plaintifs.

or Any person in in

SEC. 42. Any person may be made a defendant, who has claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.

terest may be de

fendant."

consent cannot

be made defend

SEC. 43. Of the parties to the action, those who are united in when a plaintif's interest must be joined, as plaintiffs or defendants; but if the be obtained, may consent of one who should have been joined a plaintiff cannot be ant. obtained, he may be made a defendant, the reason being stated in the petition.

sue for benefit of

all.

SEC. 44. When the question is one of common or general in- One or more may terest 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 all.

SEC. 45. 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.

one or more may tiff's option.

be sued at plain

not abate

SEC. 46. An action does not abate by the death, marriage or When actions do other disability of a party, or by the transfer of any interest therein, during its pendency, if the cause of action survive or continue. In case of the marriage of a female party, the fact being suggested on the record, the husband may be made a party with his wife, and in the case of the death or other disability of a party, the court may allow the action to continue by or against his representative or successor in interest. In case of any other transfer of interest, the action may be continued in the name of thed in origina the original party, or the court may allow the person to whom the transfer is made to be substituted in the action.

Transferred in

sued

name.

When parties

must be present.

Persons interested made parties upon application.

Respecting third party.

SEC. 47. The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.

SEC. 48. When, in an action for the recovery of real or personal property, any person having an interest in the property, applies to be made a party, the court may order it to be done.

SEC. 49. Upon affidavit of a defendant before answer, in any action upon contract, or for the recovery of personal property that some third party, without collusion with him, has or makes a claim to the subject of the action, and that he is ready to pay or dispose of the same, as the court may direct, the court may make an order for the safe keeping, or for the payment, or deposit in court, or delivery of the subject of the action, to such person as it may direct, and an order requiring such third party to appear, in a reasonable time, and maintain or relinquish his claim against the defendant. If such third party, being served with a copy of the order, by the sheriff, or such other person as the court may direct, fail to appear, the court may declare him. barred of all claim in respect to the subject of the action, against the defendant therein. If such third party appear, he shall be allowed to make himself defendant in the action, in lieu of the Original defend- original defendant, who shall be discharged from all liability to either of the other parties in respect to the subject of the action, upon his compliance with the order of the court for the payment, deposit or delivery thereof.

How served.

ant discharged.

Applies to sheriff when.

Actions against aberiff.

SEC. 50. The provisions of the last section shall be applicable to an action brought against a sheriff, or other officer, for the recovery of personal property, taken by him under execution, or for the proceeds of such property so taken, and sold by him. And the defendant in any such action, shall be entitled to the benefit of those provisions against the party in whose favor the execution issued, upon exhibiting to the court the process under which he acted, with his affidavit that the property for the recovery of which, or its proceeds, the action is brought, was taken under such process.

SEC. 51. In an action against a sheriff or other officer, for the recovery of property taken under an execution and replevied by the plaintiff in such action, the court may, upon application of the defendant and of the party in whose favor the execution issued, permit the latter to be substituted as the defendant, security for the cost being given.

TITLE IV.

THE COUNTY IN WHICH ACTIONS ARE TO BE BROUGHT.

con

be brought in the the subject of ac

county in which tion is situated.

counties, action brought in either.

SEC. 52. Action for the following causes must be brought in what action must the county in which the subject of the action is situated, except as provided in section fifty-three: First, For the recovery of real property, or of any estate or interest therein. Second, For the partition of real property. Third, For the sale of real property, under a mortgage, lien, or other incumbrance or charge. SEC. 53. If the real property, the subject of the action, be an When in two entire tract and situated in two or more counties, or if it sists of separate tracts, situated in two or more counties, the action may be brought in any county, in which any tract or part thereof is situated, unless it be an action to recover the possession thereof. And if the property be an entire tract, situated in two or more counties, an action to recover the possession thereof, may be brought in either of such counties; but, if it consists of separate tracts in different counties, the possession of such tracts must be recovered by separate actions, brought in the counties where they are situated. An action to compel the specific performance of a contract of sale of real estate, may be brought in the county where the defendants, or any of them reside.

What actions

must be brought

in

county where

cause arose-recovery of fines.

SEC. 54. Actions for the following causes must be brought in the county where the cause, or some part thereof arose: First, An action for the recovery of a fine, forfeiture or penalty, imposed by a statute, except that when it is imposed for an offence committed on a river, or other stream of water, or road, which is the boundary of two or more counties, the action may be brought in any county bordering on such river, water course or road, and opposite to the place where the offence was committed. Second, Against public ofAn action against a public officer, for an act done by him in virtue or under color of his office, or for a neglect of his official duties. Third, An action on the official bond or undertaking of On official Bond. a public officer.

ficer.

tion.

SEC. 55. An action other than one of those mentioned in the Against corporafirst three sections of this chapter, against a corporation created by the laws of this Territory, may be brought in the county in which it is situated or has its principal office or place of business, or in which any of the principal officers thereof may reside; but, if such corporation be an insurance company, the action may be brought in the county where the cause of action, or some part thereof arose.

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SEC. 56. An action against a railroad company, or an owner of a line of mail stages or other coaches, for any injury to persons or property upon the road or line, or upon a liability as a carrier, may be brought in any county through or into which said road or line passes.

SEC. 57. An action, other than one of those mentioned in the first three sections of this chapter, against a turnpike road company, may be brought in any county in which any part of the road lics.

SEC. 58. The provisions of this chapter shall not apply in the case of any corporation created by a law of this Territory, whose charter prescribes the place where alone a suit against such corporation may be brought.

SEC. 59. An action, other than one of those mentioned in the first three sections of this chapter, against a non-resident of this Territory or a foreign corporation, may be brought in any county in which there may be property of, or debts owing to said defendant, or where said defendant may be found; but if said defendant be a foreign insurance company, the action may be brought in any county where the cause, or some part thereof

arose.

SEC. 60. Every other action must be brought in the county in which the defendant, or some one of the defendants reside, or may be summoned.

SEO. 61. In all cases in which it shall be made to appear to the court that a fair and impartial trial cannot be had in the county where the suit is pending, the court may change the place of trial to some adjoining county.

TITLE V.

COMMENCEMENT OF A CIVIL ACTION.

CHAPTER 1. Manner of commencing a Civil Action.

flow actions are SEC. 62. A civil action may be commenced in a court of record, by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued therein.

Defendant en

titled to copy of
petition or paper mons,

from clerk.

Precipe to be filed.

SEC. 63. A copy of the petition need not accompany the sumbut the defendant or plaintiff shall be entitled to a copy of the petition, or any other paper filed in the action, upon application to the clerk therefor; and the costs of such copy shall be taxed among the costs in the action.

SEC. 64. The plaintiff shall, also, file with the clerk of the

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