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 v. 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 . 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.)

1. 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 jointowner 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. Kalb, 47 Ind. 220.

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. 282. What actions die - Exception.

SEC.

283. All other actions survive - Exception. 284. Action for death of another- - Limitation.

[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. R. Co. v. Stout, 53 Ind. 143.

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.) 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 lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages can not exceed ten thousand dollars, and must inure to the exclusive benefit of the widow and children, if any, or next of kin, to be distributed in the same manner as personal property of the deceased. (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.

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.

[1881 S., p. 240. In force September 19, 1881.]

285. Charges of incest, etc., how actionable. 850. Every charge of incest, fornication, adultery, or whoredom, falsely made by any person against a female; also, words falsely spoken of any person, charging such person with incest, or the infamous crime against nature, either with mankind or the brute creation,— shall be actionable in the same manner as in the case of slanderous words charging a crime, the commission of which would subject the offender to death or other degrading penalties. (788.) 1. For construction, see Blickenstoff v. Perrin, 27 Ind. 527; Schurick v. Kollman, 50 id. 336; Acker v. McCullough, id. 447; Emerson v. Marvel, 55 id. 265.

286. Waste- Forfeiture and eviction. 706. Wrongs heretofore remediable by action of waste shall be subjects of action, as other wrongs in which there may be judgment for damages, forfeiture of the estate of the party offending, and eviction from the premises. Judgment of forfeiture and eviction shall only be given in favor of the person entitled to the reversion against the tenant in possession when the injury to the estate in reversion shall be adjudged in the action to be equal to the value of the tenant's estate or unexpired term, or to have been done in malice. (627.) 287. Waste or trespass - Suit by remainder-man. 707. A person seized of an estate in remainder or reversion may maintain an action for waste or trespass, for injury to the inheritance, notwithstanding an intervening estate for life or years.

I. Owner in fee may injoin tenant for life from cutting and removing valuable growing timber, to the irreparable injury of the fee-simple.-Robertson v. Meadors, 73 Ind. 43.

2. Tenant for life who commits actionable waste is liable to all of the remaindermen.-Stout v. Dunning, 72 Ind. 343. See Dawson v. Coffman, 28 Ind. 220.

288. Suit against co-tenant. 708. A joint tenant, or tenant in common, or tenant in coparcenary, may maintain an action against his cotenant or coparcener, or their personal representatives, for receiving more than his just proportion.

289. Nuisance. 709. Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. (628.)

1. The Board of County Commissioners may be liable for nuisance, by keeping and maintaining a pest-house in such manner and so near a dwelling-house as to be offensive.-Haag . Board, 60 Ind. 511.

2. A city hospital is neither prima facie nor per se a nuisance.—Bessonies v. City, 71 Ind. 189.

3. A cemetery is not, per se, a nuisance.-Begein v. City, 28 Ind. 79. Nor is a railroad in the street of a town.--New Albany, etc., R. R. Co. v. O'Daily, 12 Ind. 551. 4. Prescription is no defense.-State v. Phipps, 4 Ind. 515.

5. A nuisance may be adjudged such, and ordered to be abated, either in a civil or criminal case.-McLaughlin v. State, 45 Ind. 338.

6. Abatement does not necessarily follow a recovery of damages for a nuisance. -Cromwell v. Lowe, 14 Ind. 234.

290. Who may sue. 710. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance. (629.)

291. Nuisance-Remedy. 711. Where a proper case is made, the nuisance may be injoined or abated, and damages recovered therefor.

[1881 S., p. 240. In force September 19, 1881.]

292. Accounts, etc.- Limitation. 37. The following actions shall be commenced within six years after the cause of action has accrued, and not afterward:

First. On accounts and contracts not in writing

Second. For use, rents, and profits of real property.

Third. For injuries to property, damages for any detention thereof, and for recovering possession of personal property.

Fourth. For relief against frauds. (210.)

1. An action by the debtor, to set aside a sale of lands on execution, must be brought within ten years after the sale.-Brown v. Maher, 68 Ind. 14.

2. Actions for breach of covenants in a deed may be commenced within twenty years.-Hyatt e. Mattingly, 68 Ind. 271.

44

3. A judgment is not a "contract within the meaning of contracts" in this section.-Niblack v. Goodman, 67 Ind. 174.

4. An action to contest a will must be brought within three years from the time it is offered for probate.-Potts v. Felton, 70 Ind. 166.

293. Injury to person, etc.-Limitation. 38. The following actions shall be commenced within the periods herein prescribed, after the cause of action has accrued, and not afterward:

First. For injuries to person or character, and for a forfeiture or penalty given by statute, within two years.

Second. All actions against a Sheriff, or other public officer, or against such officer and his sureties on a public bond, growing out of a liability incurred by doing an act in an official capacity, or by the omission of an official duty, within five years; but an action may be brought against the officer or his legal representatives, for money collected in an official capacity, and not paid over, at any time within six years.

Third. For the recovery of real property sold on execution, brought by the execution-debtor, his heirs, or any person claiming under him, by title acquired after the date of the judgment, within ten years after the sale. Fourth. For the recovery of real property sold by executors, administrators, guardians, or commissioners of a Court, upon a judgment specially directing the sale of property sought to be recovered, brought by a party to the judgment, his heirs, or any person claiming a title under a party, acquired after the date of the judgment, within five years after the sale is confirmed.

Fifth. Upon promissory notes, bills of exchange and other written contracts for the payment of money, hereafter executed, within ten years: Provided, That all such contracts as have been heretofore executed may be enforced, under this Act, within such time only as they have to run before being barred under the existing law limiting the commencement of actions, and not afterward.

Sixth. Upon contracts in writing other than those for the payment of