In The Lexington and Big Sandy Railroad Co. agt. Goodman, 15 How., 85, 5 Abb., 493, Special Term, December, 1857, PEABODY, J., it was decided, that all the defendants must be affected by each of several causes of action united in one complaint, to warrant the union of them in one suit. It is not sufficient that some of the defendants be affected by each or all of the causes of action; as in an equitable action to compel the surrender of certain securities which have been sold in separate parcels to different persons, under different contracts, the causes of action against the various purchasers cannot properly be united; one has no interest in the case of the other which will authorize their union as defendants.

In Shaver agt. Brainard, 29 Barb., 25, General Term, January, 1857, MASON, J., it was decided, that where an action in the nature of a creditor's suit is brought by a receiver appointed in proceedings supplementary to execution, to set aside as fraudulent a conveyance of real estate made by the judgment debtor to one of the defendants, and a subsequent conveyance from such grantee to the other defendant, the judgment debtor is a necessary party. Whenever it appears that a complete determination of the controversy cannot be had without the presence of other parties, the Code makes it the imperative duty of the court to cause the proper parties to be brought in, whether the defect of parties appears on the face of the complaint or not, and whether or not the defendants fail to demur or to raise the objection in their answer.

In Wallace agt. Eaton and others, 5 How., 99, Special Term, May, 1850, MASON, J., it was decided, that where a complaint set up the recovery of a judgment against one Kelsey, and that an execution had been returned nulla bona, and that the defendants and the debtor (Kelsey, who was not made a defendant) had colluded to defraud the plaintiffs and other creditors by a sale of goods, &c.; and also that the debtor had made a general assignment to one Larned, for the benefit of creditors, and that Larned had neglected and refused to execute the trust created by such assignment; and praying that the sale by Kelsey to defendants might be declared fraudulent, and that they pay over to the creditors of Kelsey, and that Larned (who was made a defendant) might be discharged from proceeding any further under the assignment, and that a receiver be appointed: Held, that Kelsey was a necessary party to the action.

In Sage agt. Mosher, 28 Burb., 287, General Term, September, 1858, E. DARWIN SMITH, J., it was decided, that where a complaint, in the nature of a creditor's bill, alleges the recovery of five judgments by the plaintiff against D. M., and the issuing of executions and the return thereof unsatisfied; that previous to the recovery of the judgments, D. M. was the owner of certain real estate, which he conveyed to J. G. M., without any consideration, and with intent to defraud creditors; and that D. M. has other equitable interests which ought to be applied on said judgments. The complaint prays that the sale and conveyance of the land may be set aside, and for equitable relief, &c. No equitable property has been discovered, and in proof it appears that the real estate had been couveyed to one G. before the commencement of the suit. G. should have been made a party defendant to the suit, as there could be no judgment or decree affecting the land or the title of said G., unless he were a party to the same.

In Jacot agt. Boyle, 18 How., 106, Special Term, November, 1859, SUTHERLAND, J., it was decided, that where an action is brought by a judgment creditor to set aside, as fraudulent and void, several and separate conveyances of real estate made to different grantees by the defendant, the judgment debtor, so that the plaintiff can satisfy his judg ment out of such property, there is but one cause of action, and the several grantees are proper parties defendants.

In Skinner agi. Stewart, 13 Abb., 442, Special Term, December, 1861, ALLEN, J., it was decided, that where an equitable action is brought by an attaching creditor against several defendants, some of whom are alleged to be the bailees of the debtor's property levied on by attachment, some to be the assignees or purchasers of all the interest of the debtor in the attached property subsequent to the attachment, and others to be prior attaching creditors to the plaintiff, there is but one cause of action, namely, that by the plaintiffs to recover their debt from the property which the bailees refuse to subject to the process of the court, and upon which the other defendants have claims adverse to the plaintiff. In such an action, the sheriff to whom the attachments have been issued is not a necessary nor proper party. But the attaching creditors other than the plaintiff are proper parties defendant, as having liens prior and paramount to the plaintiff, and as being necessary to a complete determination and settlement of the questions involved.

In Morton agt. Weil, 33 barb., 34, Special Term, March, 1860, INGRAHAM, J. it was decided, that where several judgment creditors, claiming under different judgments against the same debtor, join in a suit to set aside various liens, by judgments and by assignment, on the debtor's property, for fraud, and to have the property applied to the payment of the plaintiff's debts, they may unite as defendants with the judgment debtor all persons having liens or conveyances by which they claim different portions of the debtor's property, notwithstanding such persons received the property in separate and distinct parcels, and at different times, and each claims to hold the portion in his hands by virtue of a separate lien or conveyance.

In Reid agt. Stryker, 12 Abb., 47, Court of Appeals, December, 1858, HARRIS, J., it was

decided, that where it is alleged, in a creditor's action, that the judgment debtor has made a fraudulent general assignment, with intent to hinder and delay his creditors, and that the assignee is guilty of a breach of faith in the management of the assets, and it is sought to set aside the assignment and render the assignee personally liable; also, that the debtor has at various times made several other conveyances, in fraud of creditors, to various persons made defendants in the action, which are also sought to be set aside; these facts constitute but one cause of action. Though there be no privity between the several transferees, there is a privity between each of them and the debtor, which makes it proper to join them all as defendants in an action to reach the property of the debtor.

In Spicer agt. Hunter, 14 Abb., 4, Special Term, September, 1861, BROWN, J., it was decided, that in an action by a creditor to avoid a conveyance, one who innocently accepts a deed of the property for the benefit of the alleged fraudulent grantee, and who conveys in accordance with the trust, is not a proper party.

In Newbould agt. Warria, 14 Abb., 80, Special Term, March, 1862, MASON, J., it was decided, that it is settled that where a debtor fraudulently disposes of his property to seve ral persons, his judgment creditors may see all such persons in one action, for the purpose of having such property applied to the satisfaction of their claims. (See also Cor agt. Platt, 32 Barb, 126.)

In Monroe agt. Galveston, &c., Railroad Company, 19 Abb., 90, N. Y. Superior Court, Special Term, May, 1862, ROBERTSON, J., it was decided, that in a creditor's suit, the judgment debtors must be made parties by the service of process. It is not enough to name them in the proceedings as defendants.

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?

A. In Slocum agt. Hooker, 13 Barb., 536, General Term, February, 1852, PARKER, J., it was decided, that infancy is a personal privilege, of which only the infant can avail himself; and the contract of an infant is voidable only, not void. Therefore, in an action on contract made by joint contractors, one of whom is an infant, the action is defective as to parties unless the infant is joined as defendant. (Reversing S. C., 12 Barb., 563; 6 How., 167.) (And see to similar effect, 1 Bosw., 333.)

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?

A. In Dean agt. Chamberlain, 6 Duer, 693, General Term, December, 1857, SLOSSON, J., it was decided, that an action by one of several public officers, all of the same office, against another of them, who was appointed by each of them to collect the fees of the whole which might be earned, and who agreed with all of them severally, and became bound to account to them severally, for such fees as he should collect, and pay to them severally their respective shares, praying judgment that defendant account to the plaintiff in writing for all fees collected, and that plaintiff's share be paid to him, carnot be sustained for want of parties, all the officers should be made parties to such an action. It is an equitable action for an accounting, and not an action at law to recover a specific

amount.

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 general assignment of the debtor, is it not necessary to make the assignee a party?

A. In Allen agt. Smith, 16 N. Y. R., 415, December, 1857, BOWEN, J., it was decided, that where the master of a vessel having an unsettled account with the owner, for wages and receipts from earnings of the vessel, and disbursements on her account, assigns his claim to a third person, and the assignee brings an action for balance of account against the owner, the defendant cannot require the master to be made a party to the action for the purpose of enforcing an accounting. The master is a competent witness for either party, and upon his examination the defendant can have every benefit from his testimony, and from the production of books and papers, which he could obtain from his accounting as a party.

In Jessup agt. Hulse, 29 Barb., 539, General Term, January, 1859, EMOTT, J., it was decided, that where an action is brought by a creditor to set aside a conveyance and sale of the debtor's property, against the purchasers thereof from the debtor's general assignee, on the ground of fraud in the assignment, it is not necessary to make the assignee a party defendant, where he has parted with all his title to the property, and no judgment or relief is asked against him.

In Lewis agt. Varnum, 12 Abb., 306, N. Y. Common Pleas, General Term, March, 1861, DALY, J., it was decided, that where the holder of a note, holds also collateral securities as a pledge for its payment, and assigns the securities to a third person; the holder of

the note, as well as such assignee of the securities, are necessary parties to the debtor's action for an accounting. And where, in such case, the holder of the note is not made a party; the court has no power to render judgment for damages against the assignee of the securities, as if the action had been of a legal and not of an equitable nature.

In Garner agt. Wright, 24 How., 144, Special Term, January, 1862, HOGEBOOM, J., it was decided, that in an action against an assignee for the benefit of creditors, brought by a creditor for himself and all other creditors who might come in and avail themselves of the action, claiming an accounting by the assignee, and that the assignment be reformed, by substituting the proper name of an indorser with the plaintiff on a promissory note preferred in the assignment, instead of the name appearing in the assignment, which was alleged to have been mentioned or copied by mistake; the indorsee of the note whose name was sought to be substituted by another, and the assignors, together with other creditors, standing in a lower class than that in which such note was stated, are necessary and proper parties, on a reformation of the assignment. (Affirmed, General Term, March, 1864, 28 How., 92.)

In Freeman agt. Newton, 3 E. D. Smith, 246, General Term, October, 1854, WoODRUFF, J., it was decided, that where an action is brought by the assignee of a demand, it is not, in ordinary cases, necessary to make the plaintiff's assignor a party defendant. But in some cases the court may order an alleged assignor of a claim in suit to be brought in as a party, to protect the defendant against another action in the name of such assignor, in which the execution of any assignment might be denied by the latter.

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?

A. In The New York and New Haven Railroal Co., agt. Schuyler, 17 N. Y. R., 592, June, 1858, COMSTOCK, J., it was decided, that in an action by a corporation for the cancellation of spurious certificates of its stock issued by its agent, where numerous holders become such under different circumstances and conveyances and claim different rights, such holders are all properly joined as defendants in the action. The convenience of settling the whole controversy in a single suit is obvious; because the only alternative is, that the corporation would be entitled to institute, and must institute, a separate action against each of the numerous parties claiming under these certificates. No one of the parties would be bound by a decision against any other one; and intolerable expense and delay might be the consequence of such a course. Where there is a common liability and a common interest, a common liability in the defendants and a common interest in the plaintiffs, different claims to property, at least if the subjects are such as may with out inconvenience be joined, may be united in one and the same suit; and where the interests of the plaintiffs are the same, although the defendants may not have a co-extensive common interest, but their interests may be derived under different, instruments, if the general objects of the action will be promoted by their being united in a single suit. the court will not hestate to sustain the action against all of them. In this case there is a single interest in the plaintiffs directly opposed to the interests of all the defendants: and all the parties can be united, because there is such a unity in the controversy with all of them as to render it fit and proper, according to settled principles, that they should be joined in a single suit.

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?

A. In Trustees of the Theological Seminary of Auburn agt. Kellogg, 16 N. Y. R., 84, September, 1857, DENIO, J., it was decided, that where a testator, after bequeathing several legacies, gives, devises and bequeaths all the rest and residue of his estate, both real and personal, which should remain after payment of his debts, funeral charges and leg. acies before mentioned, unto his daughter (by name) her heirs and assigns forever; and if she should die without lawful issue, then he gives and bequeaths to a certain institution of learning (by name), a certain sum; and on the death of such daughter intestate without lawful issue, an action is brought against the testator's executors by such institution, to recover the sum bequeathed by the will, the administrator of the deceased daughter, having an interest in any claim which tends to take away the fund bequeathed for her benefit upon a specified contingency, or to reduce it, for the benefit of another, is a necessary party defendant.

In Tonnelle agt. Hall, 3 Abb., 205, Special Term, September, 1856, WHITING, J., it was decided, that a residuary legatee who brings an action for his share of the residue, must join all persons interested in the residue, as defendants. And where a legacy is a charge upon real estate, the heir is a necessary party defendant in an action to recover it. So in an action relating to the trusts of a will the heir must be a party.

In Gleason agt. Thayer, 24 Barb.. 82, General Term, January, 1857, BIRDSEYE, J., it was decided, that in an action against an executor, for the recovery of a legacy which

the defendant alleges has been paid by him, to a stranger, for the benefit of the legatees, the stranger need not be made a party defendant.

In Towner agt. Tooley, 38 Barb., 598, General Term, July, 1860, MULLIN, J., it was decided, that where a testator, after making provision, in his will, for his wife, and giving legacies to eight of his children, ordered and directed that his son R., should pay the legacies; and to reward him for doing so, the testator bequeathed to R. all his personal property not given to his wife, and all his freehold property in the town of M., subject to a life estate of the testator's wife in one-third part of it; giving the residue of his real estate to all his children equally. The executrix named in the will having renounced, R. became the administrator of the testator, with the will annexed. All of the personal property of the testator passed into his hands, and he converted the same to his own use and died insolvent, without having paid the legacies. In an action brought by a legatee, upon R.'s administration bond, to recover the amount of his legacy: Held, that but a single suit was necessary, in order to enable all the legatees to recover their legacies, which suit should be in behalf of all who might choose to come in; that as the legacies were or might be a charge on the real estate, the owners of the land should be parties, defendants; and that all the obligor's in the administration bond given by R., or their representatives, should also be parties defendants.

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?

A. In Moore agt. Willett, 2 Hilt., 522, Special Term, May, 1858, HILTON, J., it was decided, that the laws of 1838 (ch. 149, p. 103), expressly provide that, in actions brought by or against executors, it shall not be necessary to join those, as parties, to whom letters testamentary shall not have been issued, and who have not qualified. A sole acting executor can maintain an action respecting the property of the testator.

In Scranton agt. The Farmers' and Mechanics Bank of Rochester, 33 Barb., 527, General Term, September, 1860, E. DARWIN SMITH, J., it was decided, that although the com mon law rule that all executors must join in an action-as well as those who prove the will, as those who renounce-has been changed by statute, so far as to except those to whom letters testamentary shall not have been issued, and who have not qualified, an executor who has proved the will and to whom letters have been issued jointly with another, is a necessary party to a suit brought by the latter.

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

A. In Niles agt. Randall, 2 Code, R., 31, Special Term, August, 1849, PRATT, J., it was decided, that the assignee of a mortgage is properly made a defendant with the mortgagor, in an action to set aside the mortgage on the ground of usury.

In Holcomb agt. Holcomb, 2 Barb., 20, Special Term, September, 1847, HARRIS, J., it was decided, that it is a general rule that, besides the parties to the mortgage, those only are proper parties to a suit for its foreclosure who have, subsequent to the mortgage, acquired rights or interests under the mortgagor or mortgagee. The plaintiff may also, make prior inccumbrancers parties to the bill, for the purpose of having the amount of such incumbrances liquidated and paid out of the proceeds of the sale; or he may, at his option, have the premises sold, subject to such prior incumbrances. A mortgagee, in filing a bill of foreclosure, has no right to make one, who claims adversely to the title of the mortgagor, and prior to the mortgage, a defendant in the suit for the purpose of contesting the validity of such adverse claim of title.

In Denton agt. Nanny, 8 Barb., 618, General Term, June, 1850, BROWN, J., it was was decided, that a purchaser under a decree of foreclosure and sole in equity, in the life time of the husband, the mortgagor, where the wife is not made a party, takes the estate subject to her equity of redemption. And in order to bar her right to redeem, she is a necessary party to the foreclosure suit.

In Corning agt Smith, 2 Seld., 82, December, 1851, Foor. J., it was decreed, that in an action to foreclose a mortgage, one who claims adversely to the title of the mortgagor, and prior to the mortgage, cannot properly be made a party defendant, for the purpose of trying the validity of such adverse claim of title.

In all agt. Nelson, 14 How., 32, S. C., 23 Barb., 88, General Term, April, 1856, EMOTT, J., it was decided, that the owner of the equity of redemption is a necessary party to a suit for the foreclosure of a mortgage. And this, although he holds by a deed unrecorded at the commencement of the suit, and at the filing of the notice of lis pendens. In Crooke agt. Higgins, 14 How., 154, Special Term, April, 1857, CLERKE J., it was decided, that all persons who have joined in a contract, should be made party defendants in an action on the contract. In an action for the foreclosure of a mortgage, where the mortgagor had previously entered into a written agreement with a persou to convey the premises, although the omission to make such person a party to the foreclosure night not prevent the rendition of a valid judgment, yet it is proper that he should be made a party defendant.

In Drury agt. Clark, 16 How., 430, General Term, October, 1857, EMOTT, J., it was decided, that where a mortgagee, in a foreclosure suit, asks a personal judgment only against a defendant, as the owner of the equity of redemption, and who assumed and

covenanted with the mortgagor to pay the mortgage as a part of the consideration of the conveyance of the mortgaged premises, it is not necessary that the mortgagor be made a party to the foreclosure. It is only when the party, against whom the mortgagee asks a personal judgment for any deficiency, is a mere surety of the mortgagor, that it can be insisted that the latter should be made a party, and the plaintiff's remedy exhausted against him for any deficiency in the lands, before resorting to his surety. But it is well settled that a grantee of mortgaged premises, who has assumed the payment of the mortgage, is a proper party to a foreclosure, and can be made liable on such a covenant. In Griswold agt. Fouler, 6 Abb., 113, General Term, 1857, BIRDSEYE, J., it was, decided, that where a mortgagor, after conveyance of the equity of redemption to a third party, made a general assignment for the benefit of his creditors; in an action, subsequently for the foreclosure of the mortgage, it was held that the assignee was not a necessary party, although it was claimed-but ineffectually, that the conveyance of the equity of redeinption was intended as a mere mortgage or security to the grantee from the grantor, although it was absolute in terms. It seems that if the conveyance had been shown to have been defeasible, the assignee would have been a necessary party, although the assignment was not recorded till after the commencement of the foreclosure.

In Case agt. Price, 17 How., 349, Special Term, April, 1859, E. DARWIN SMITH, J., it was decided, that in a mortgage foreclosure case, the plaintiff is entitled to make all persons parties defendants, who have apparent liens upon the mortgaged premises, or are subsequent grantees or mortgagees of any part or parcel thereof. But he should be careful to see that the subsequent deeds or mortgages executed by the mortgagor, and shown in the certificate of the county clerk, convey or cover some part of the mortgaged premises. If a deed of premises is made absolutely to trustees, without qualification, trust of restriction, the title is in the trustees, and they are individually necessary and proper parties in a foreclosure case, where the premises are subject to the lien of the mortgage; but where it appears from the face of the deed, that it is made in trust or for the use of a corporation, no estate, legal or equitable, vests in the trustees, but in the corporation, and the trustees are unnecessary parties.

In Hells agt. Van Voorhies, 20 N. Y. R., 412, December, 1859, SELDEN, J., it was decided, that the wife of a mortgagor of land for the purchase money, whether she has or has not joined in the mortgage, has an inchoate right of dower in the equity of redemption which is not affected by a foreclosure, to which she is not a party. The object of the statute (IR. S., 741, § 5) was not to prescribe a different rule but to prevent the claim of dower of a widow who did not unite in a purchase money mortgage, from having preference to it. (See Mills agt. Van Voorhies, 23 Barb., 125.)

In Wheeler agt. Morris, 2 Bosi., 528, General Term, March, 1858, WoODRUFF, J., it was decided, that a widow is entitled to dower, in an equity of redemption vested in her husband, in lands conveyed to him during the coverture, subject to a mortgage thereon. Her inchoate right of dower will not be defeated or extinguished by the foreclosure of the mortgage during the lifetime of the husband, if she is not made a party to the suit, notwithstanding her husband is made a defendant therein. As against a mortgagee for purchase money, the mortgagor's wife's "right of dower," is in subordination to the mortgage and cannot be set up to impair the mortgage or the lien thereof. If she survives her husband, she cannot claim dower in hostility to the mortgage, nor except on a full recognition of the mortgage lien. But she, nevertheless, is entitled to dower in the equity of redemption, and is entitled to redeem the premises from the mortgage. In this respect she is in the same situation, and has the same rights as the widow who has united with her husband in giving a mortgage to secure some other debt; and as the widow of one who has mortgaged his lands before his marriage, and the same also as the widow of one who purchased land subject to a mortgage and died. If a purchaser who has given a mortgage for purchase money, conveys the premises to another, subject to the mortgage, the wife of the last grantee has an inchoate right of dower in the equity of redemption, in subordination to the mortgage, and on the death of her husband she becomes entitled to dower and may redeem the premises by payment of the mortgage debt. A foreclosure of the mortgage in the lifetime of her husband, by a suit to which he is a defendant, will not defeat nor cut off her right to redeem if she is not also a party. In The Farmer's Loan and Trust Company agt. Dickinson, 6 Abb., 61, Special Term, August, 1859, INGRAHAM, J., it was decided, that where the owner of the equity of redemption is proceeded against as a party in a mortgage foreclosure case, but before the service of the summons on him, his deed of the premises to third parties is executed and put on record; his grantees become necessary parties to the action whenever the summons is served on their grantor.

In Briggs agt. Davis, 20 N. Y. R., 15 September, 1859, DENIO, J., it was decided. that where the grantees of land in trust for creditors, reconveyed to the grantor, by deed reciting that the trusts had been executed, when in fact there were cestui que trusts entitled to a sale and distribution of the proceeds; and the debtor then mortgaged the land for a valuable consideration to one having constructive but not actual notice of the trust and reconveyance; Held, that the mortgagee took subject to the execution of the