any of his deputies, requiring him to summon | Legislature, prescribing the mode of obtaining twenty-four eligible men to serve as petit jurors. panels of grand and petit jurors, is obligatory These men were to be taken by lot, in the upon the District Courts of the Territory. mode pointed out by the statute, from the list previously made by the clerks of the county court, and their names were to be returned by the marshal to the clerk of the District Court. Provision was further made for the drawing of the trial panel on this further list, and for its completion by a new drawing or summons, in case of non-attendance or excuse from service upon challenge or for other reason. It was insisted in argument that the challenge to the array was waived by the defendants through the exercise of their right to challenge peremptorily and for cause; and we were referred to the judgment of the Supreme Court of New York, in the case of The People v. Me Kay, 18 Johns., 217, as an authority for this proposition. But that case appears to be an authority for the opposite conclusion. "We are not of opinion" says the court, "that the prisoner's peremptory challenge of jurors was a waiver of his right to object now to the want of a venire." In that case there had been no venire, but the jury had been summoned in a mode not warranted by law. In the case before us there was a venire, but if it was not authorized by law it was a nullity; and we are not prepared to say that the efforts of the defendants to secure as far as they could, by peremptory challenges and challenges for cause, a fair trial of their case, waived an inherent and fatal ob jection to the entire panel. For the trial of the cause, the record shows that the court originally directed a venire to be issued in conformity with this law, and that a venire was issued accordingly, but not served or returned. The record also shows that, under an order subsequently made, an open renire was also issued to the Federal Marshal; which was served and returned with a panel of eighteen petit jurors annexed. These jurors were sum moned from the body of the county at the discretion of the marshal. Twelve jurors of this panel were placed in the jury-box, and the defendants challenged the array on the ground that the jurors had not been selected or summoned in conformity to the laws of the Territory, and with the original order of the court. This challenge was overruled. Exception was taken and the cause proceeded. Both parties The theory upon which the various govern challenged for cause. Each of the defendants ments for portions of the territory of the United claimed six peremptory challenges. This claim States have been organized, has ever been that was also overruled, and exception was taken. of leaving to the inhabitants all the powers of Other exceptions were also taken in the prog- self-government consistent with the supremacy ress of the cause. Under the charge of the and supervision of national authority, and with court, a verdict was rendered for the plaintiff, certain fundamental principles established by under which judgment was entered for $59,- Congress. As early as 1784 an ordinance was 063.25, and on appeal was affirmed by the Su-adopted by the Congress of the Confederation preme Court of the Territory. A writ of error to that court brings the cause here. It is plain that the jury was not selected or summoned in pursuance of the Statute of the Territory. That statute was, on the contrary, wholly and purposely disregarded, and the controlling question raised by the challenge to the array is whether the law of the Territorial vent him from giving an impartial verdict, is cause of challenge. Smith v. Eames, 3 Scam., 76; S. C., 36 Am. Dec., 515; Leach v. People, 53 III., 311. Unless regulated by statute, the opinion which disqualifies a juror must be of fixed and determined character, deliberately formed, still entertained, and one that shuts out a different belief. O'Mara v. Commonwealth, 75 Pa. St., 424; Brown v. Com., 2 Leigh, 769; State v. Kingsbury, 58 Me., 238; People v. King, 27 Cal., 507; State v. Millian, 3 Nev., 409; Proffat on Jury Trials, sec. 187; McGregg v. State, 4 Blackf., 101; Staup v. Com., 74 Pa. St., 458. It makes no difference that the opinion is based on rumor or newspaper reports of the cause of action. Armistead v. Com., 11 Leigh, 657; S. C., 37 Am. Dec., 633; People v. Reynolds, 16 Cal., 129; People v. Edwards, 41 Cal., 640; People v. Johnston, 46 Cal., 78; Wormeley's case, 10 Gratt., 658; Jackson v. Cóm., 23 Gratt., 919; Wright v. Com., 32 Gratt., 941; State v. Benton, 2 Dev. & Bat., 196. It is held in most States that an opinion founded on rumor or newspaper report does not disqualify a juror if he says he can try the case fairly and impartially, unbiased by his opinion. Guetig v. State, v6 Ind., 94; S. C., 32 Am. Dec., 99; State v. Williams, 3 Stew., 454: Grissom v. State, 4 Tex. App., 374; State v. Caulfield, 23 La. Ann., 148; State v. Bunger, 14 La. Ann., 461: People v. McCauley, 1 Cal., 379; O'Mara v. Com., 75 Pa. St., 424; State v. Anderson, 5 Har., 493; Waters v. State, 51 Md., 430; O'Connor v. State, 9 Fla., 215; Montague v. State, 17 Fla., 662: Ulrich v. People, 39 Mich., 245; Balbo v. People, 19 Hun, 424; State v. Davis, 29 Mo., 391; State v. Collins, 70 N. C., 24; S. C., 16 Am. Rep., 771; We are, therefore, obliged to consider the question whether the District Court, in the selec tion and summoning of jurors, was bound to conform to the law of the Territory. providing for the division of all the territory ceded, or to be ceded, into States, with boundaries ascertained by the ordinance. These States were severally authorized to adopt for their tem porary government the Constitution and laws of any one of the States, and provision was made for their ultimate admission by delegates into the Congress of the United States. We thus Van Vacter v. McKelly, 7 Blackf., 578; Curry v. An impression on the mind, or hypothetical opinion, dependent on the truth or falsity of reports, unless there is actual bias, does not disqualify. Gold Mining Co. v. Natl. Bk., 96 U. S., 640; Thomas v. People, 67 N. Y., 218; State v. Kingsbury, 58 Me., 238; Howerton v. State, Meigs, 26. People v. Reynolds, 16 Cal., 132; Reynolds v. U. s. 98 U. S., 145; People v. Mather, 4 Wend., 29; S. C. 21 Am. Dec., 122; Thomas v. People, 67 N. Y., 18: State v. Sater, 8 Iowa, 420; State v. Ostrander, i Iowa, 435; Mann v. Glover, 14 N. J. L., 195; People v. Mallon, 3 Lans., 224; State v. Potter, 18 Conn.. 166; Lee v. State, 45 Miss., 114; Loach v. Peopie, 5) Ill., 311; State v. Kingsbury, 58 Me., 238; State v. Medlicott, 9 Kan., 257; Gray v. People, 28 III., 344. If it influence his mind and require evidence to remove it, he is disqualified. Greenfield v. People, 6 Abb. N. C., 1; S. C., 74 N. Y., 277. A juror related to counsel whose fees depend upon recovery, is disqualified. Melson v. Dickson, 63 Ga., 682; S. C., 36 Am. Rep., 128. One who has expressed an opinion that a person imprisoned for a criminal offense has been punished enough and who has signed a petition for his pardon, is not a competent juror in a civil action against the prisoner founded upon the same charge. Asbury L. Ins. Co. v. Warren, ó Me., 33: S. C., 22 Am. Rep., 590. find the first plan for the establishment of gov-cerning the qualifications of jurors. The 16th ernments in the Territories, authorized the adop- section of the Act provided that all free tion of state governments from the start, and white male adults, not disqualified by any legal committed all matters of internal legislation to proceeding, should be qualified as grand and the discretion of the inhabitants, unrestricted petit jurors in the courts of the Territory, and otherwise than by the State Constitution origi- should be selected, until the General Assembly nally adopted by them. should otherwise direct, in such manner as the courts should prescribe. This ordinance, applying to all Territories ceded or to be ceded, was superseded three The Territory of Alabama, in 1817 (3 Stat. years later by the Ordinance of 1787, restricted at L., 371) was formed out of the Mississippi in its application to the territory northwest of Territory, and upon the same plan. The Suthe River Ohio-the only territory which had perior Court of the Territory was clothed with then been actually ceded to the United States. the federal jurisdiction given by the Act of It provided for the appointment of the gov- 1805. The Territory of Arkansas was organernor and three judges of the court, who are ized in 1819 (3 Stat. at L., 493) in the southern authorized to adopt, for the temporary govern part of Missouri Territory. The powers of the ment of the district, such laws of the original government were distributed as executive, legStates as might be adapted to its circumstances. islative, and judicial, and vested respectively But, as soon as the number of adult male in- in the Governor, General Assembly and the habitants should amount to fine thousand, they courts. The Governor and Judges of the Suwere authorized to elect representatives to a perior Court were to be appointed by the PresiHouse of Representatives, who were required to dent, and the Governor was to exercise the legisnominate ten persons from whom Congress lative powers until the organization of the Genshould select five to constitute a legislative couneral Assembly. The Act for the organization cil; and the house and the council thus selected of the Territorial Government of Florida made and appointed were thenceforth to constitute the same distribution of the powers of the the Legislature of the Territory, which was au- government as was made in the Territory of thorized to elect a delegate in Congress with Arkansas, and contained the same provision in the right of debating, but not of voting. This regard to jurors as the Act for the Territorial Legislature, subject to the negative of the gov Government of Missouri. ernor and certain foundamental principles and provisions embodied in articles of compact, was clothed with the full power of legislation for the Territory. In all the Territories full power was given to the Legislature over all ordinary subjects of legislation. The terms in which it was granted were various, but the import was the same in all. Except in the Acts relating to Missouri and Arkansas, no power was given to the courts in respect to jurors, and the limitation of this power until the organization of the General Assembly indicates very clearly that, after such organization, the whole power in relation to jurors was to be exercised by that body. The Territories south of the Ohio, in 1790 (1 Stat at L., 123); of Mississippi, in 1798 (1 Stat. at L., 549); of Indiana, in 1800 (2 Stat. at L., 58); of Michigan, in 1805 (2 Stat. at L., 309); of Illinois, in 1809 (2 Stat. at L., 514); were organized upon the same plan, except that the prohibition of slavery, embodied in the Ordi nance of 1787, was not embraced among the In 1836 the Territory of Wisconsin was orfundamental provisions in the organization of ganized under an Act, which seems to have the Territories south of the Ohio; and the peo-received full consideration, and from which all ple in the Territories of Michigan, Indiana and Illinois were authorized to form a legislative assembly, as soon as they should see fit, with out waiting for a population of five thousand adult males. Upon the acquisition of the foreign territory of Louisiana, in 1803, the plan for the organization of the government was somewhat changed. The Governor and Council of the Territory of Orleans, which afterwards became the State of Louisiana, were appointed by the President, but were invested with full legisla tive powers, except as specially limited. A District Court of the United States distinct from the courts of the Territory was instituted. 2 Stat. at L., 283. The rest of the Territory was called the District of Louisiana, and was placed under the government of the Governor and Judges of Indiana. 2 Stat. at L., 287. Jurisdiction of cases in which the United States were concerned, subject to appeal to the Supreme Court of the United States, was for the first time expressly given to a Territorial Court in 1805. 2 Stat. at L., 338. The Territory of Missouri was organized in 1812 (2 Stat. at L., 743) and upon the same plan as the Territories acquired by cessions of the States. In the Act for the government of this Territory appears for the first time a provision con subsequent Acts for the organization of Territories have been copied, with few and inconsiderable variations. Except those in the Kansas and Nebraska Acts in relation to slavery, and some others growing out of local circumstances, they all contained the same provisions in regard to the Legislature and the legislative authority, and to the judiciary and the judicial authority, as the Act organizing the Territory of Utah. In no one of them is there any provision in relation to jurors. The language of the section conferring the legislative authority in each of these Acts is this: "The legislative power of said Territory shall extend to all rightful subjects of legisla tion, consistent with the Constitution of the United States, and the provisions of this Act; but no law shall be passed interfering with the primary disposal of the soil. No tax shall be imposed upon the property of the United States, nor shall the lands or other property of nonresidents be taxed higher than the lands or other property of residents." As there is no provision relating to the selection of jurors in the Constitution or the Organic Act, it cannot be said that any legislation upon this subject is inconsistent with either. The method of procuring jurors for the trial of cases is, therefore, a rightful subject of legis have annulled it. It is no unreasonable inferlation, and the whole matter of selecting, imence, therefore, that it was approved by that paneling and summoning jurors is left to the body. Territorial Legislature. In the next place, we are of opinion that the The action of the Legislatures of all the Ter-making of the jury lists by the county courts ritories has been in conformity with this con- was not a judicial act. Conceding that it was struction. In the laws of every one of them from not in the power of the Territorial Legislature that organized under the Ordinance of 1787 to to confer judical authority upon any other the Territory of Montana are found Acts upon courts than those authorized by the organic this subject. And it is worth while to remark law, and that it was not within its competency that in three of the Territories, Nevada, New to organize county courts for the administra Mexico and Idaho, the judge of the probate tion of justice, we cannot doubt the right of has been associated with other officials in the the Territorial Legislature to associate select selection of the lists for the different counties. men with the judge of probate, and to call This uniformity of construction by so many the body thus organized a county court, and Territorial Legislatures of the Organic Acts into require it to make lists of persons qualified relation to their legislative authority, especially when taken in connection with the fact that none of these jury laws have been disapproved by Congress, though any of them would be annulled by such disapproval, confirms the opinion, warranted by the plain language of the Organic Act itself, that the whole subject-matter of jurors in the Territories is committed to Territorial regulation. If this opinion needed additional confirmation it would be found in the Judiciary Act of 1789. The regulations of that Act in regard to the selection of jurors have no reference what ever to Territories. They were framed with reference to the States, and cannot, without violence to rules of construction, be made to apply to Territories of the United States. If, then, this subject were not regulated by Territorial law, it would be difficult to say that the selection of jurors had been provided for at all in the Territories. to serve as jurors. In making the selection, its members acted as a Board, and not as a judicial body. Nor do we think the other objection sound, viz.: that the required participation of the Territorial Marshal in summoning jurors invalidated his acts, because he was elected by the Legislature, and not appointed by the Governor. He acted as Territorial Marshal under color of authority, and if he was not legally such, his acts cannot be questioned indirectly But, we repeat, that the alleged defects of the Utah jury law are not here in question. What we are to pass upon is the legality of the mode actually adopted for impaneling the jury in this case. If the court had no authority to adopt that mode, the challenge to the array was well taken, and should have been allowed. Acting upon the theory that the Supreme and District Courts of the Territory were courts of the United States, and that they were gov It is insisted, however, that the jury law of erned in the selection of jurors by the Acts of Utah is defective in two material particulars: Congress, the District Court summoned the first, that it requires the jury lists to be select-jury in this case by an open venire. We need ed by the county court, upon which the organic law did not permit authority for that purpose to be conferred. Second, that it requires the jurors to be summonded by the Territorial Marshal, who was elected by the Legislature, and not appointed by the Governor. We do not perceive how these facts, if truly alleged, would make the mode actually adopted for summoning the jury in this case legal. But we will examine the objections. not pause to inquire whether this mode was in pursuance of any Act of Congress, for, if such Act was not intended to regulate the procuring of jurors in the Territory, it has no application to the case before us. We are of opinion that the court erred both in its theory and in its action. The judges of the Supreme Court of the Territory are appointed by the President under the Act of Congress, but this does not make the In the first place, we observe that the law has courts they are authorized to hold, courts of the received the implied sanction of Congress. It United States. This was decided long since in was adopted in 1859. It has been upon the The American Insurance Company v. Canter, statute book for more than twelve years. It 1 Pet., 546, and in the later case of Benner v. must have been transmitted to Congress soon Porter, 9 How., 235. There is nothing in the after it was enacted, for it was the duty of the Constitution which would prevent Congress Secretary of the Territory to transmit to that from conferring the jurisdiction which they body copies of all laws, on or before the first exercise, if the judges were elected by the proof the next December in each year. The simple of the Territory, and commissioned by the ple disapproval by Congress at any time, would 1.-Wisconsin, organized April 20, 1836, 5 Stat. at L., 10; Iowa, organized June 12, 1838, 5 Stat. at L., 235; Oregon, organized August 14, 1848, 9 Stat. at L. 323; Minnesota, organized March 3, 1849, 9 Stat. at L., 403; New Mexico, organized September 9, 1850, 9 Stat. at L., 446; Utah, organized September 9, 1850, 9 Stat. at L., 453; Nebraska, organized May 30, 1854, 10 Stat. at L., 277; Kansas, organized May 30, 1853, 10 Stat. at L., 277; Washington, organized March 2, 1853, 10 Stat. at L., 172; Colorado, organized February 28, 1861, 12 Stat. at L., 172; Nevada, organized March 2, 1861, 12 Stat. at L., 209; Dakota, organized March 2, 1861, 12 Stat. at L., 239; Arizona, organized Feb. 24, 1863, 12 Stat. at L., 664: Idaho, organized March 3,1863, 12 Stat. at L., 808; Montana, organized May 26, 1864, 13 Stat. at L., 85. Governor. They might be clothed with the same authority to decide all cases arising under the Consitution and laws of the United States, subject to the same revision. Indeed, it can hardly be supposed that the earliest Territorial courts did not decide such questions, although there was no express provision to that effect, as we have already seen, until a comparatively recent period. There is no Supreme Court of the United States, nor is there any District Court of the United States, in the sense of the Constitution, in the Territory of Utah. The judges are not appointed for the same terms, nor is the juris LOUISA CHEW, Piff. in Err., v. RICHARD A. BRUMAGEN. (See S. C., 13 Wall., 497-506.) que trust. diction which they exercise part of the judicial power conferred by the Constitution or the General Government. The courts are the leg. islative courts of the Territory, created in virtue of the clause which authorizes Congress to make all needful rules and regulations respect- State judgment, effect of in other State—cestui ing the Territories belonging to the United States. Am. Ins. Co. v. Canter, 1 Pet., 545. The Supreme Court of the Territory was doubtless misled by the inadvertent use of the words "Marshal of the District Court of the United States for the Territory of Oregon" in the organic law. This Act defines the duties, liabilities and fees of the Marshal for the Territory by reference to those of the Marshal of the District Court of the United States for the Territory of Oregon. On reference to the Act or ganizing that Territory, we find that the duties 1. The same legal effect must be given to a New York judgment, in New Jersey, as would be given to it in New York. 2. Where, by the laws of New York, a trustee of Submitted Feb. 23, 1872. Decided Apr. 15, 1872. IN State of New Jersey. The case is stated by the court. Messrs. Edward P. Cowles, John Sherwood and John H. Reynolds, for plaintiff in error: The rule recognized and followed by the courts of New York is: of the Marshal were to be the same as those of the Marshal for the District Court of the United States for the Territory of Wisconsin. On reference to the Act organizing the last named Territory, the duties, liabilities and fees of the Marshal were described to be the same as those of the "Marshal of the District Court of the United States for the Northern District of New York." Hence, the words "Marshal of the District Court of the United States" have crept into the various Acts organizing these Territories. But the description of the court which was 2. That both by general law and by section proper in a State would be improper in a Terri-112 of the N. Y. Code, Chew could set up in tory. The Organic Act authorized the appointment of an attorney and a Marshal for the Territory, who may properly enough be called the attor ney and Marshal of the United States for the Territory; for their duties in the courts have exclusive relation to cases arising under the laws and Constitution of the United States. 1. That Wood, as assignee in the courts of New York, could maintain suit on the bond in his sole name as plaintiff, without joining Walker or his administratrix as a party, either plaintiff or defendant. that suit whatever defense he had against Walker, and that the judgment in that suit concluded Walker, his personal representatives and assigns. Hasting v. McKinley. 1 E. D. Smith, 273-277; see, also, Sheldon v. Wood, 2 Bosw., 272; Boynton v. Ins. Co., 16 Barb., 254; St. John v. Ins. Co., 13 N. Y., 31; Cummings v. Morris, 25 N. Y., 625; Poor v Guilford, 10 N. Y., 373; Grant v. Tallman, 20 N. Y., 191; Nelson v. Eaton, 26 N. Y., 410; Voorhis v. Childs, 17 N. Y. A distinction is to be observed between cases where the entire title is conveyed, and those cases where only a fractional interest in the thing is conveyed. The process for summoning jurors to attend in such cases may be a process for exercising the jurisdiction of the Territorial Courts when acting, in such cases, as Circuit and District Courts of the United States; but the making up of the lists and all matters connected with the designation of jurors are subject to the regula- In that class of cases where the assignee holds tion of territorial law. And this is especially but one third, one half, or some fractional intrue in cases arising, not under any Act of Con-terest in the bond, he never could, at law nor gress, but exclusively, like the case in the record, under the laws of the Territory. There is nothing in this opinion inconsistent with the cases of Orchard v. Hughes, 1 Wall., 73 [68 U. S., XVII., 560], or of Huntv. Palao, 4 How., 589, properly understood. The first of these cases went upon the ground that the chancery jurisdiction conferred upon the courts of the Territories by the Organic Act was beyond the reach of territorial legislation; and the second, in which the Territoral Court of Appeals was called a court of the United States was only intended to distinguish it from a state court. Upon the whole, we are of opinion that the jury in this case was not selected and summoned in conformity with law, and that the challenge to the array should have been allowed. This opinion makes it unnecessary to consider the other questions in the case. The judgment of the Supreme Court of the Territory of Utah must be reversed. Cited-95 U. S., 98; 98 г. S., 154; 99 U. S., 24: 102 U. 8., 669; 103 U. S., 310; 109 U. S., 145; 1 Wood, 515, 522; Sawy., 271-273. in equity, and cannot now, recover a judgment for his fractional interest, without bringing in the other parties, either as co-plaintiffs or defendants, since he does not represent the entire, but a fractional portion of the subject-matter of the suit, and the splitting up of demands is not permitted. Mr. Edward T. Green, for defendant in error: The plaintiff in error insists that the judgment in New York operated as an extinguishment of the bond, and that upon the payment thereof, the debt secured by the mortgage was satisfied, and the mortgage thereby discharged. On the other hand, the defendant in error claims that the whole effect of the judgment was simply the reduction pro tanto of the amount due upon the bond, and that he has the right to look to the security for the balance. Was Wood a necessary party to the suit upon the bond, instituted by Wood against Chew in New York? It is a well settled principle, that to make a judgment binding and effective, the court must have jurisdiction over both the cause and all necessary parties thereto; or, as it is sometimes | in error has no standing here, for it is an unexpressed, over the parties and the things to be doubted rule in New York, that upon the foreaffected. closure of a mortgage, the assignor who has assigned a mortgage has collateral security, is a necessary party, and this, too, although the assignment is absolute in its terms, and expresses the receipt of a full consideration. Flanders v. Ins. Co., 3 Mason, 158; Story, Confi. L., 492. When an adjudication is made upon a particular subject-matter, the rights of all parties whose interests are immediately connected with that adjudication and affected by it, shall be provided for, as far as they reasonably may be. Bissell v. Briggs, 9 Mass., 462; Newell v. New ton, 10 Pick, 472; healy v. Root, 11 Pick., 390; Kilburn v. Woodworth, 5 Johns., 41; Fenton v. Garlick, 8 Johns., 197; Borden v. Fitch, 15 Johns., 121; Shumway v. Stiliman, 4 Cow., 294; S. C., 6 Wend., 449; Starbuck v. Murray, 5 Wend., 148; Mervin v. Kumbel, 23 Wend., 293; Adams v. Rowe, 11 Me., 95; Whittier v. Wendell, 7 N. H., 257; Aldrich v. Kinney, 4 Conn., 380: Wernwag v. Pawling, 5 Gill. & J., 500; Hodges v Deaderick, 1 Yerg., 125; Rogers v. Coleman, Hard. (Ky.) 413; Rust v. Frothing ham, 1 Breese, 259; Miller v. Miller, 1 Bailey, 244; Oakley v. Aspinwall, 4 N. Y., 513; Hulbert v. Ins. Co., 4 How. Pr., 275; Brewster v. R. R. Co., 5 How. Pr., 183; Rose v. Himely, 4 Cranch, 269; D'Arcy v. Ketchum, 11 How., 165. Johnson v. Hart, 3 Johns. Cas., 332; Whitney v. McKinney, 7 Johns. Ch., 145; Kittle v. Van Dyck, 1 Sandf. Ch., 76; 1 Dan. Ch. Pr. (marg.) 304, 305, 307. The rule in England is the same. Palmer v. Carlisle, 1 Sim. & S., 423; Wetherell v. Collins, 3 Madd., 255; Hobart v. Abbot, 2 P. Wms., 642; Norrish v. Marshall, 5 Madd., 475; Coop. Eq. Pl., 34; Cathcart v. Lewis, 1 Ves., Jr., 463; Calv. Part., 11: Palk v. Clinton, 12 Ves., 48; Lowe v. Morgan, 1 Brown (C. C.) 368; Lewis v. Nangle, 2 Ves., 431; Clerkson v. Bowyer, 2 Vern., 67. That this is the proper construction of the section in question, has been clearly determined by the courts of New York. Wallace v. Eaton, 5 How. Pr., 99; Hollenbeck v. Van Valkenburgh, 5 How. Pr., 281; Cook v. Ins. Co., 8 How. Pr., 514; Lewandov. Dunham, 1 Hilt., 114; Secor v. Keller, 4 Duer, 416; Considerant v. Brisbane, 22 N. Y., 389; Bk. v. Sherex-wood, 29 Barb., 383; Boynton v. Ins. Co., 16 Barb., 254; Richtmyer v. Richtmyer, 50 Barb., 55; Tr. of Auburn Theol. Sem. v. Kellogg, 16 N. Y., 83. Wood was interested in the bond to the tent of $1,900, it having been assigned to him as collateral security for that amount. Walker was interested in the same bond to the extent of $1,600, that being the amount due to him, after he satisfaction of the debt for which it was held by Wood as collateral; and Chew was interested in the bond to the extent of $3,500, for that was the amount which he had obligated himself to pay to Walker. It is apparent, therefore, that Wood, Walker and Chew were the real parties in interest. Now, by the Code of Civil Procedure of N. Y., this principle, that all parties in interest must be before the court to perfect an adjudication, is affirmed in express terms. The Code enacts: "Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 113." Code, ed. 1853. sec. 111, p. 81. If Walker, then, was a party in interest section 111 of the Code, the action should have been prosecuted in his name. It is evident that Wood does not come within the exception of section 113. He is not in any sense a "trustee of an express trust." By the assignment of the bond to him as collateral, Wood did not become a trustee for Walker. The right of Walker was not that of a cestui que trust; it was simply an equity, a right to redeem the bond by satisfying the debt for which it had been assigned as collateral. Mr. Justice Strong delivered the opinion of the court: This was a bill to foreclose a mortgage given by Robert Chew, the testator of the plaintiff in error, to secure the payment of his bond to Peter Walker for the sum of $3,500. The conundersideration of the bond was the sale of a farm in the State of New Jersey. Soon after the bond was given, Walker, the obligee, assigned it, toIn a note to sec. 111, in Voorhees' Code of gether with the accompanying mortgage, to Procedure, ed. 1853. pp. 81, 82, the annotator Stephen G. Wood, as collateral security for paysays: "The present Code has adopted, with ment of $1,700; and afterwards, by another inslight modifications, the rule in relation to par-strument of writing, declared that the assignee ties which formerly obtained in courts of equity and, with the exception in section 113, the suit must be prosecuted in the name of the party in interest, and the rule which prevailed in equity may be very safely applied to cases under the Code.' Again: "It seems impossible, in viewing the analogy of the rule respecting parties, contained in this title (title III., Partics to Civil Actions) to the rules on the same subject in the late court of chancery, to resist the inference that it was the intention of the framers of the Code to introduce the rules in equity practice respecting parties." If this view is a correct one, and the term "real party in interest" has in courts of common law the same signification which it had in equity, the case at bar is at an end. The plaintiff held them as collateral security for the payment of $200 more. Wood, having thus become the assignee, brought suit on the bond in the Supreme Court of New York in 1853, against Chew, the obligor, and joined Walker as a defendant, he having refused to join as plaintiff; but process was not served upon Walker, nor did he appear. After his death, which occurred before the trial, on affidavit of his administratrix that he had deceased, the court or dered that the action should be continued against her as administratrix, but it does not appear that the order was ever served upon her. Chew, however, pleaded fraud in the sale of the farm, and claimed to recoup the damages he had sustained in consequence of the fraud, and the case went to trial upon the issue tendered by this plea. On the trial, the jury found for Wood |