McKeever, 184 Ind. 686, 112 N. E. 765; American Surety Co. v. State ex rel., 50 App. 475, 98 N. E. 829.

Acts 1915, ch. 165, reducing punishment for burglary of a store, does not impair the prior law in so far as it applies to offenses which occurred before Acts 1915 went into effect. Burk v. State, 185 Ind. 47, 113 N. E. 294.

Under this section and § 7721, where a highway improvement is completed and bonds issued and taxes imposed for payment of the cost under Acts 1909, ch. 148, § 2, the right of the township to reimbursement does not cease to exist with the going into effect of Acts 1913, ch. 183. Wise v. McKeever, 184 Ind. 686, 112 N. E. 765.

CHAPTER 2.

CIVIL PROCEDURE.

Section numbers to notes refer to Revised Statutes of 1914 and sections herein.

Under the provisions of our code there is but one form of action to administer legal and equitable remedies. Pittsburgh etc. R. Co. v. Home Ins. Co., 183 Ind. 355, 108 N. E. 525; Lesh v. Bailey, 49 App. 254, 95 N. E. 341.

This section does not abridge the power of courts to grant equitable relief, nor change the rules of law or the principles of equity in determining the substantial rights of parties, but in instances it changes the form of procedure by which the remedy is obtained. Moore-Mansfield etc. Co. v. Marion etc. Traction Co., 52 App. 548, 101 N. E. 15.

See note to § 1244.

Where a complaint seeks to enjoin a nuisance and asks damages, and the nuisance has subsequently been abated prior to the trial, the court may award legal relief by way of damages, notwithstanding the injunctive relief can not be awarded. Miller v. Gates, 62 App. 37, 112 N. E. 538.

This section does not pretend to abridge the powers of the court, nor affect the rights of the parties in any way or the remedies formerly given for the violation of such rights further than to change in some instances the means by which the remedy may be obtained. Fidelity & Columbia Trust Co. v. M. A. Sweeney Shipyard & Foundry Co., App. 129 N. E. 252.

SEC.

ARTICLE 2.-PARTIES TO ACTION.

SEC.

263. Who plaintiffs.

267. Child, injury, death, suit for.
273. Making new parties.

277. Assignor when defendant-Rule as

to set-off, etc.

278. New party, how brought in by defendant.

Only those persons who have an interest in the subject-matter of a will can contest the validity of the will. Crawfordsville Trust Co. v. Ramsey, 178 Ind. 258, 98 N. E. 177.

If a suit is commenced in the name of the agent of the real party in interest the complaint may be amended by substituting the names of the real party as plaintiff. Davis v. King, 180 Ind. 387, 103 N. E. 98.

If money is due to an incorporated town, a suit to recover the same can not be brought in the name of the state on the relation of the town. State ex rel. v. Liberty Tp., 50 App. 208, 98 N. E. 149.

If a bond in an injunction suit is conditioned for the payment of damages to any of the defendants, any defendant who may sustain damages may sue on the bond. Crawford v. Spindler, 55 App. 1, 103 N. E. 388.

In view of this section and § 252, requiring every action to be prosecuted by the real party in interest, and § 1356 in which the word "person" is extended to bodies politic and corporate, and Workmen's Compensation Act, § 67, authorizing the industrial board to sue for the penalty prescribed by him, an action for such penalty may be brought by the state as the real party in interest, or by the industrial board. In re Burk, App., 118 N. E. 540.

Under these sections, all persons who join as plaintiffs must have an interest in the subject-matter of the action, and must be united in such interest, although their interest may not be equal. Continental Ins. Co. v. Bair, 65 App. 502, 114

N. E. 763, 116 N. E. 752.

Action on a saloon keeper's bond for death of person to whom liquor was unlawfully sold is properly brought in the name of the state under this section and § 253. Massachusetts Bonding & Ins. Co. v. Gary, App.

-

-, 126 N. E. 84.

Every action must be prosecuted in the name of the real party in interest except as provided in the following section of this act. Fidelity & Columbia Trust Co. v. M. A. Sweeney Shipyard & Foundry Co., App. 129 N. E. 252.

252. Executors, trustees, etc.-How may sue.

An assignee of an insolvent debtor may sue without joining the person for whose benefit the action is prosecuted. Kinney v. Riddle, 181 Ind. 400, 103 N. E. 835.

When a suit is brought by a trustee, the complaint should disclose the name of the cestui que trust, and facts should be stated which show that the suit is prosecuted for his benefit. Guyer v. Union Trust Co., 55 App. 472, 104 N. E. 82. See note to section 251.

Where a fire policy was issued by the insurer's agent in the name of the record owner, the real owner who had negotiated for the insurance was the real party in interest and under this section the only person who could maintain action on the policy. Niagara Fire Ins. Co. v. Abell, App., 122 N. E. 667.

The 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 and it is not provided that the trustee shall so sue. Fidelity & Columbia Trust Co. v. M. A. Sweeney Shipyard & Foundry Co., - App., 129 N. E. 252.

253. Actions on official bonds.

The right of the tax payers of a township to sue upon the bond of a township trustee to recover money unlawfully expended is considered. Miller v. Jackson Tp., 178 Ind. 503, 99 N. E. 102.

See note to sections 251, 6405.

The relator in an action on official bond is the real party in interest, the state being merely a nominal party. State ex rel. Salt Creek Civil Tp. v. Stevens, 63 App. 561, 114 N. E. 873.

255. Married women.

This section and § 7867 are permissive and do not prohibit a husband joining with his wife in the prosecution of an action to recover compensation for her services rendered on her sole and separate account. Delaski v. Kovacich, App. 123 N. E. 223.

259. Guardian ad litem.

The general authority of a guardian ad litem is to defend the action, and it is discretionary with the court to permit such a guardian to file a cross-complaint. Benbow v. Studebaker, 51 App. 450, 99 N. E. 1033.

261. Poor person, attorney for.

Non-residents of the state may be permitted to prosecute actions as poor persons. Sissenguth v. Bourne, 58 App. 97, 107 N. E. 743.

263. Who plaintiffs.

Persons who have a vested or contingent interest in real estate may be joined as plaintiffs in actions concerning the property. Wheatcraft v. Wheatcraft, 55 App. 283, 102 N. E. 42.

See note to section 251.

Under this section, a corporation which has erected a dam for water power, and the stockholders, who are entitled as an incident to their ownership of stock to the use of water for power, may join in a suit to compel the removal of obstructions below the dam, although the injury to each plaintiff is not the same in degree. Bissell Chill Plow Works v. South Bend Mfg. Co., 64 App. 1, 111 N. E. 932.

267. Child, injury, death, suit for.

When a father has the right to sue for the death of a child, he is entitled to recover a sum sufficient to compensate him for the pecuniary loss sustained. American Motor Car Co. v. Robbins, 181 Ind. 417, 103 N. E. 641.