SECTION 384. Tenants in common, etc., may sever in bringing or defending actions. 385. Action, when not to abate by death, marriage, or other disability.. Proceedings in such case. 386. Another person may be substituted for the defendant. 367. (§4.) NOTE.-Stats. 1864, p. 29. 1. ASSIGNEE OF A JUDGMENT.-A judgment is not negotiable, like a bill of exchange by the law merchant, but is a mere chose in action, vesting an equitable right in the assignee thereof to the proceeds of it, with the right to the usual and legal means of collecting the amount due; and between two bona fide purchasers of a judgment the purchaser first in time is prior in right.— Fore vs. Manlove, 18 Cal., p. 436. Wedder 2. ANSWER, HOW FRAMED.-See Abb. Forms, Vol. 2, 3. REAL PARTY IN INTEREST.-Action must be in Cal., 4. REAL PARTY IN INTEREST.-The possession of a note, whether obtained before or after maturity, is prima facie evidence of ownership. The averment of a valuable consideration for the transfer to the plaintiff is generally immaterial. The transfer, with or without value, confers upon the holder the right of action; and a consideration need not be proved unless a defense is interposed which would otherwise preclude a recovery.-McCann vs. Lewis, 9 Cal., p. 246; James vs. Chalmers, 5 Sand., p. 52, and 2 Selden, p. 209. And in such a case the objection that the plaintiff is not the owner of the note is unavailing. His right to maintain action cannot be questioned, except the defendant pleads payment to, or offset against, the party alleged to be the true owner.-Price vs. Dunlap, 5 Cal., p. 483; Gushee vs. Leavitt, 5 Cal., p. 160. 5. REAL PARTY IN INTEREST, WHETHER THE RELIEF SOUGHT IS LEGAL OR EQUITABLE.-We have but one form of action for the enforcement of private Action to be in name of party in rights, and, with certain exceptions, the Code requires that every action shall be prosecuted in the name of the real party in interest. Cases of assignment are not included in these exceptions (see Sec. 369); and in the form of the remedy no distinction exists between legal and equitable rights. In this respect the two classes of rights are placed precisely upon the same footing, and must undergo the same remedial process for their enforcement.-Wiggins vs. McDonald, 18 Cal., p. 127. 6. SEVERAL OBLIGEES IN A BOND.-A bond given to all the obligees by name, and using no words expressing a several obligation, yet necessarily creates a several liability, the design of it being to secure each and all of the obligees from damages or injury. In such cases, however, under the common law practice, it has been held that the suit was properly brought in the name of the several obligees; and the question was said to be purely technical, to wit: with whom was the contract made? the obligation being technically to both to pay whatever damage might be sustained by either, though when recovered the money would go to the party who sustained the injury. Whatever the rule may be under the old system, we think that under our system the right of action is in the party sustaining the injury; for, on a recovery, the other party, if entitled to receive the money at all, if judgment were had in the name of both, would hold it by right of, and as a trustee for, the other; and our Practice Act, for convenience, has given the right to sue to the party, beneficially entitled to the fruits of the action.-Summers vs. Farish, 10 Cal., p. 347; Prader vs. Purkett, 13 Cal., p. 591. 7. IN A JOINT BOND EACH PARTY MAY SUE for his several damages, notwithstanding the bond is made payable to the obligees jointly.-Lally vs. Wise, 28 Cal., p. 539. See, also, Browner vs. Davis, 15 Cal., p. 11. 8. PARTY BENEFICIALLY INTERESTED IN DAMAGES MAY SUE ON BOND GIVEN TO OFFICER, STATE, OR CORPORATION.-Formerly, where a bond was given to an officer, State, or corporation, suit had to be brought in the name of the party holding the legal title, for the benefit of the persons interested; but our statute has introduced a new rule, and, by the provisions of the Practice Act, the suit must be prosecuted in the name of the real party in interest-i. e., the party beneficially interested in the damages.-Baker vs. Bartol, 7 Cal., p. 551; Lally vs. Wise, 28 Cal., p. 540; Warmouth vs. Hatch, 33 Cal., p. 121. A plaintiff being the real party in interest has a right to sue upon a bond, though made payable to the people of the State.-Baker vs. Bartol, 7 Cal., p. 551. 9. ASSIGNEES.-Where A. owes B. and B. owes C., and A. and B., without consulting C., agree between themselves that A. shall pay C. what A. owes to B., it was held that an action could not be maintained by C. against A. for want of privity.-McLaren vs. Hutchinson, 18 Cal., p. 80; but this was questioned and declared open for further investigation in Lewis vs. Covillaud, 21 Cal., p. 189, and it was also held that where A., B., and C. agree among themselves that A. shall be liable to C. for a debt due from B. to C., the assignee of C. could sue in his own name for the debt due from A.-McLaren vs. Hutchinson, 22 Cal., p. 190, and cases therein cited. 10. ACTION OF EJECTMENT-LEGAL TITLE TO BE REPRESENTED.-In an action of ejectment the plaintiff suing for possession must have or represent the legal title-an equitable title is not sufficient. The action must be in the name of the party holding the legal title.-Emeric vs. Penniman, 26 Cal., p. 123; see, also, Estrada vs. Murphy, 19 Cal., p. 272; Clark vs. Lockwood, 21 Cal., p. 222. 11. ACTION BY SHERIFF AGAINST PARTY OWING ATTACHMENT DEBTOR.-Where an attachment was issued by the Court of first instance against the property of a debtor, and the Sheriff had executed the same, and was ordered to make the amount due the creditor out of the goods, chattels, and property of the debtor. Held: that the Sheriff could not maintain an action in his own name to recover a sum owing to the attachment debtor by a third person for goods sold and delivered. Sublette vs. Melhado, 1 Cal., p. 104. 12. SHERIFF NOT RESPONSIBLE WHEN GOODS RELEASED FROM ATTACHMENT ON SUFFICIENT UNDER TAKING.-An undertaking given to a Sheriff to procure a release of goods attached is for the benefit of the plaintiff, notwithstanding it is in the name of the Sheriff, and the plaintiff may sue on it; and if the Sheriff takes a sufficient statutory undertaking, he has no further responsibility.-Curiac vs. Packard, 29 Cal., p. 194. 13. PARTY PROCURING PATENT FOR LAND WHO HAS NO RIGHT THERETO-WHO MAY MAINTAIN ACTION AGAINST.-If the United States confirm a grant of land, and issue a patent therefor to a party who did not own the grant and had no right to the patent, the patentee can only hold the legal title in trust for the real parties in interest; and as to who are proper par ties in an action for affirmative relief see facts of case in Salmon vs. Symonds, 30 Cal., p. 306, and authorities there cited. See, also, Sec. 378. 14. A PARTY PLAINTIFF WHO WAS AGENT FOR DEFENDANTS IN THE TRANSACTION COMPLAINED OF.The fact that the owner of a ship lost while being towed to sea was the agent for the owners of the steamtug does not relieve the latter from any of the obligations under which they contract with others.-Martin White vs. Mary Ann, 6 Cal., p. 462. 15. CORPORATIONS AS PLAINTIFFS.-The allegation that plaintiff is a corporation under the laws of the State is sufficient to establish the legal capacity to sue.-Cal. Nav. Co. vs. Wright, 6 Cal., p. 258. 16. ASSIGNABLE INSTRUMENTS.-A contract not to run boats on a certain line of travel, and on failure to comply with such contract to pay $15,000, is an instrument in writing for the payment of money, and assignable by our laws.-Cal. Nav. Co. vs. Wright, 6 Cal., p. 258. 17. WHAT MAY BE ASSIGNED-ASSIGNEES-ACCEPTANCE OF ORDERS.-Funds in the hands, or to come into the hands, of the third person, are assignable, and the drawees having given an order and received notice of its acceptance are liable to the payees, without any other express promise to pay.-Pope vs. Huth, 14 Cal., p. 407, and cases cited. 18. ACCEPTANCE OF ORDERS.-Where an order is drawn for an amount due, it is a prima facie assignment of the debt due. Even if it was only for part of a debt, no one could make the objection but the defendants.-McEwen vs. Johnson, 7 Cal., p. 260; Wheatley vs. Strobe, 12 id., p. 97. It would seem that a debtor may accept orders in favor of different persons, for different portions of the debt, and those accepted orders will bind all parties.-McEwen vs. Johnson, 7 Cal., p. 260. 19. ASSIGNMENT OF DEBT BY PARCELS.-And so debts due a party may by him be split up and assigned in parcels, and the debtor subjected to costs of more suits that was in the first place contemplated, if such debtor consents thereto.-Marzion vs. Pioche, 8 Cal., p. 536. 20. AGREEMENT NOT TO DEFEND SUIT ASSIGNABLE.-A. agrees to pay a certain sum of money to B. if B. will cease to defend a certain suit. Held: such an agreement is assignable, and gives the assignee a right to sue in his own name.-Gray vs. Garrison, 9 Cal., p. 325. 21. ASSIGNABLE CONTRACT.-A contract leasing a stallion for a certain time, and with a right reserved to have nine mares covered by the stud during the continuance of the lease, may be assigned, and carries therewith all the benefits arising out of the contract. But the assignee must give notice to the lessee of the assignment.-Doll vs. Anderson, 27 Cal., p. 248. 22. CONTINGENT RIGHTS AND INTERESTS ARE NOT ORDINARILY ASSIGNABLE at law, but they are in equity. Assignments of such rights and interests, in being, are upheld and enforced by Courts of equity. And more than this; these Courts support and give effect to assignments of things which have no present actual existence, but rest in mere possibility; not as a present positive transfer operative in presenti, but as a present contract, to take effect and attach as soon as the thing comes in esse.-Bibend vs. London and Liverpool Fire and Life Ins. Co., 30 Cal., p. 78; Pierce vs. Robinson, 13 id., p. 121; 2 Story's Eq., Sec. 1040; Mitchell vs. Winslow, 2 Story, Sec. 638. 23. ASSIGNMENT OF POLICY OF INSURANCE TO ONE HAVING NO INTEREST IN PROPERTY INSURED.-See Bibend vs. L. & L. F. & L. Ins. Co., 30 Cal., p. 89; see, also, Civil Code, Secs. 2546-2557. 24. ASSESSMENT FOR STREET IMPROVEMENTS AsSIGNABLE.-An assessment for street improvements against an owner of property is assignable by the contractor.-Cochran vs. Collins, 29 Cal., p. 129. And a contract for improving a street may be assigned.-See Taylor vs. Palmer, 31 Cal., p. 248, and cases cited. 25. SUITS BY ASSIGNEES.-Where A. was indebted to a company, and the company indebted to B., if all parties agreed that A. should pay his debt to B., it is an equitable assignment, and the assignee can sue for the amount of the assignment.-Wiggins vs. McDonald, 18 Cal., p. 126. An appropriation of the fund is all that is necessary, and any act amounting to such an appropriation was sufficient to constitute an equitable assignment of the debt.-Id. 26. ASSIGNMENT OF A JUDGMENT ASSIGNMENT OF DEBT ON WHICH JUDGMENT WAS OBTAINED.-It matters not if an assignment of a judgment is made, and the judgment is invalid for want of jurisdiction, for the assignment of a judgment so void is an assignment of the debt for which it was obtained.-Brown vs. Scott, 25 Cal., p. 196. 27. CAUSE OF ACTION ASSIGNABLE.-Whether a 27-VOL. I. |