cause of action is assignable depends mainly upon whether, in case of the death of the assignor, it would descend to his representatives.-Zabriskie vs. Smith, 13 N. Y. (3 Kern.), p. 322; McKee vs. Judd, 12 N. Y. (2 Kern.), p. 622; Dininny vs. Fay, 38 Barb., p. 18; Fried vs. New York Central R. R. Co., 25 How., p. 285; People ex rel. Stanton vs. Tioga Common Pleas, 19 Wend., p. 73.

28. SUIT BY ASSIGNEE OF PERSONAL PROPERTY.Where personal property is wrongfully detained, the owner may assign his title thereto, and the assignee may maintain an action therefor.-Cass vs. The N. Y. and N. H. R. R. Co., 1 E. D. Smith, p. 522; McGinn vs. Warden, 3 id., p. 355; Hall vs. Robinson, 2 Comstock, p. 295; The Brig Sarah Ann, 2 Summer., p. 211; 2 Hilliard on Torts, p. 275; Lazard vs. Wheeler, 22 Cal., p. 142.

29. A RIGHT OF ACTION FOR THE WRONGFUL TAKING AND CONVERSION OF PERSONAL PROPERTY IS ASSIGNABLE, and under the provisions of the Code the assignee can recover upon the same in his own name.— McKee vs. Judd, 2 Kernan, p. 622; Hoyt vs. Thompson, 1 Selden, p. 347; see, also, North vs. Turner, 9 Serg. & Rawle, p. 244; Lazard vs. Wheeler, 22 Cal., p. 142.

30. A DAMAGE CAUSED BY TRESPASS ON LAND MAY BE ASSIGNABLE.-Moore vs. Massini, 32 Cal., p. 590.

31. CAUSES OF ACTION NOT ASSIGNABLE.-A judgment in an action for a non-assignable tort becomes a debt, but the recovery of judgment does not change the character of the debt so as to make it assignable.Lawrence vs. Martin, 22 Cal., p. 173.

32. PARTNER CANNOT ASSIGN CLAIM AGAINST HIS FIRM; ASSIGNEE CANNOT MAINTAIN ACTION THEREON. A partner who has a claim against the firm of which he is a member, and who cannot therefore sue the firm at law, cannot confer upon his assignee a right to maintain such an action. If he could avoid the disability by assignment, it would defeat all the substantial reasons upon which the rule is founded.-Bullard vs. Kinney, 10 Cal., p. 63.

33. VENDOR'S LIEN NOT ASSIGNABLE.-A vendor's lien cannot be assigned.-Baum vs. Grigsby, 21 Cal., p. 172, affirmed Lewis vs. Covillaud, 21 Cal., p. 178; Williams vs. Young, 21 Cal., p. 227.

34. A CAUSE OF ACTION ARISING OUT OF A TORT IS NOT ASSIGNABLE.-Oliver vs. Walsh, 6 Cal., p. 456. 35. AN ASSIGNMENT OF AN ACCOUNT BY INDORSE

MENT OF THE WORD 'ASSIGNED," signed by the owner of the account, is sufficient.-Ryan vs. Maddux, 6 Cal., p. 247.

36. PLAINTIFF DESIGNATED BY NAME Of CopartNERSHIP FIRM.-A complaint, which contains no other designation of the party plaintiff than the name of a partnership firm, is defective.-Gilman vs. Cosgrove, 22 Cal., p. 356.

37. SET-OFF JUDGMENT NOT DEFEATED AS A SETOFF BY ASSIGNMENT.-Where, in the same action, two judgments were entered, one for the plaintiff for a certain sum, and one for the defendant for a less sum: Held: that defendant has a right to set off his judgment, pro tanto, against that of the plaintiff, and that this right could not be defeated by any assignment by plaintiff of his judgment before application for the setoff.-Porter and Allen vs. Liscom, 22 Cal., p. 430.

39. PROMISE TO THIRD PARTY.-Where the obligation with which it is sought to affect defendants personally arises out of an alleged promise given by them to W. and A. Elder, of whom they bought the land mortgaged by Pangburn to plaintiff, that they would pay a portion of the purchase money, equal to the amount due or to grow due upon the note given by Pangburn to plaintiff, and secured by said mortgage, this is not a promise to pay the debt of another, nor to pay the Pangburn note, but an original promise by them to the Elders to pay their own debt to them, by paying a certain amount of money to plaintiff. If such promise was given, plaintiff could recover upon it as the party beneficially interested.-Wormouth vs. Hatch, 33 Cal., p. 121.

39. IN WHOSE NAME WRIT OF MANDATE MUST BE APPLIED FOR.-An application for the writ of mandate must be prosecuted in the name of the real party in interest, and if the name of the people is used and the people have no interest, and the relator alone is interested, the writ will be denied.-People vs. Pacheco, 29 p. 210.

Cal.,

40. WHO ARE PROPER PARTIES IN AN ACTION FOR PARTITION.-Gates vs. Salmon, 35 Cal., p. 576.

41. SUIT BY ASSIGNEE OF A CLAIM.-An absolute assignment of a demand enables the assignee to sue for and recover the whole debt, even though by the assignments he acquired only a portion of the demand.-Gradwohl vs. Harris, 29 Cal., p. 150.

42. INTERVENTION BY PART OWNER OF CLAIM SUED ON.-If the owner of a claim assigns it absolutely, retaining, however, an interest in it, he may

Assignment of thing in

action not

defense.

intervene to protect his interests in an action brought by the assignee to collect the same; and if he does not intervene he is bound by the judgment.-Gradwohl vs. Hatch, 29 Cal., p. 150.

368. (§ 5.) In the case of an assignment of a thing in action, the action by the assignee is without to prejudice prejudice to any set-off, or other defense existing at the time of, or before, notice of the assignment; but this section docs not apply to a negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before maturity.

NOTE.-1. PURCHASERS AND ASSIGNEES OF JUDGMENTS.-A purchaser of a judgment is not bound to inquire into latent equities existing in the hands of third parties, and is not affected as to third parties by frauds of which he had neither actual nor constructive notice.Wright vs. Levy, 12 Cal., p. 257. The rule caveat emptor applies as to the right of third parties in the purchase of a judgment, as well as in the purchase of other personal property.-Mitchell vs. Hockett, 25 Cal., p. 544. A purchaser of a judgment takes it subject to all set-offs existing at time of purchase.--Hobbs vs. Duff, 23 Cal., p. 596; Porter vs. Liscom, 22 Cal., p. 430; McCabe vs. Gray, 20 Cal., p. 509; Fore vs. Manlove, 18 Cal., p. 436.

2. PAYMENT BY A GARNISHEE.-If the judgment creditor assigns the judgment, and the judgment debtor, without notice of the assignment, afterwards pays the same voluntarily to the Sheriff, by reason of the service of garnishee process upon him, the rights of the assignee are not affected, and he may still enforce the judgment.-Brown vs. Ayres, 33 Cal., p. 525.

3. PROMISSORY NOTES ASSIGNED AS COLLATERAL SECURITY. A negotiable promissory note, not yet due, and taken bona fide as collateral security for a previous debt, is not subject to a defense existing at the date of the assignment between the original parties. Payne vs. Bensley, 8 Cal., p. 260; Naglee vs. Lyman, 14 Cal., p. 450; Robinson vs. Smith, 14 Cal., p. 94. Where there is any change in the legal rights of the parties in relation to the antecedent debt, the creditor taking the collateral security is considered as a holder for value, and the paper not subject to equities existing between the original parties.-Naglee vs. Lyman, 14 Cal., p. 454. But where A. gave his note to B., in order that B. might raise money on it as collateral

security, and B. raised the money thereon, and then took up the note from the pledgees, it was held that B. could not sue on the note, as it had answered all the purposes for which it was given; and an assignee of B. taking the note after maturity, and upon no new consideration, took it subject to the same defense.-Coghlin vs. May, 17 Cal., p. 515.

4. NOTES ASSIGNED AND INDORSED AFTER MATURITY. An indorsee, after maturity, takes the same interest that the indorser had, and his claim is subject to the same defense.-Folsom vs. Bartlett, 2 Cal., p. 163. If a party takes a note after its maturity, he takes it subject to all subsisting equities between the maker and the payee, but not subject to such as subsisted between the maker and any intermediate holder.-Vinton vs. Crowe, 4 Cal., p. 309.

5. TRANSFER OF CHECK AFTER DISHONOR.-As to all persons except a bona fide holder without notice, a check given for a gambling debt is void. If it was presented to the bank, and payment refused, and then it was transferred, after dishonor, the assignee takes it subject to all the defenses to which it was subject in the hands of the first holder.-Fuller vs. Hutchings, 10 Cal., p. 526.

6. ASSIGNMENT OF JUDGMENT.-The assignee of the judgment is only the holder of an equity, with the right to use the judgment and the name of the plaintiff to enforce it, and stands in the shoes of the assignor as to all defenses which existed against the judgment between the parties to it. It is like a note assigned after due.-Wright & Co. vs. Levy, 12 Cal., p. 257; Northam vs. Gordon, 23 Cal., p. 255; Hobb vs. Duff, id., p. 596. 7. WHAT ASSIGNMENTS EQUITY UPHOLDS.-Equity upholds assignments, not only of choses in action, but of contingent interests and expectations, and of things which have no actual existence, but vest in possibility. See note to preceding section and the cases there cited of Pierce vs. Robinson, 13 Cal., p. 123; Bibend vs. L. and L. Ins. Co., 30 Cal., p. 78; Pope vs. Huth, 14 Cal., p. 403.

8. ASSIGNED ACCOUNT.-As to defense to assigned account, see Duff vs. Hobbs, 19 Cal., p. 646.

9. FRAUDULENT ASSIGNOR.-A fraudulent assignor cannot sue to compel a reassignment, etc.-See Gregory vs. Haworth, 25 Cal., p. 653.

10. NOTICE OF ASSIGNMENT.-As to when notice of assignment is not necessary, see Morgan vs. Lowe, 5 Cal., p. 525.

11. ASSIGNEE OF JUDGMENT.-An assignee of a

Executor, trustee, etc., may

sue without

joining the

persons

beneficially

judgment and of the Sheriff's certificate of sale thereunder, stands in the same position as his assignor when the judgment has been reversed, and the sale will be set aside, where no loss will occur to the assignee.Reynolds vs. Harris, 14 Cal., p. 667.

369. (§ 6.) An executor or administrator, or trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the interested. persons for whose benefit the action is prosecuted. A person with whom, or in whose name, a contract is made for the benefit of another, is a trustee of an express trust, within the meaning of this section.

NOTE.-Stats. 1854, p. 84.

1. AN EXECUTOR OR ADMINISTRATOR MAY SUE in his own name as executor or administrator.-Curtis vs. Herrich, 14 Cal., p. 117; Teschemaker vs. Thompson, 18 Cal., p. 11; Halleck vs. Mixer, 16 Cal., p. 579; Curtis vs. Sutter, 15 Cal., p. 259; Corcoran vs. Doll, 32 Cal., p. 82.

2. DAMAGES FOR DEATH OF DECEDENT.-A suit for damages for the death of decedent can be brought only by the administrator or executor.-Kramer vs. Market St. R. R. Co., 25 Cal., p. 435.

3. LEGAL TITLE MUST BE REPRESENTED TO RECOVER LANDS-But a person having the equitable title cannot sue to recover possession of lands. Such action must be in the name of the party holding the legal title; thus, where a grant of land was made to P., which was confirmed by decree of the Board of Land Commissioners, from which an appeal was taken to the United States District Court. Pending the appeal, P. died, leaving a will. An order was made in the United States Court, on petition of the heirs of P., and the executors of the estate, substituting the heirs in the proceedings in place of P., and the Court then confirmed the land to the heirs, and it was surveyed, and the survey approved. Subsequently, E. was appointed administrator, with the will annexed. It was held that the legal title was in the heirs, and that the administrator could not maintain an action to recover possession of the same.-Emeric vs. Penniman, 26 Cal., p. 122; Salmon vs. Symonds, 30 Cal., p. 301.

4. FORECLOSURE OF A MORTGAGE UPON REAL PROPERTY.-See Burton vs. Lies, 21 Cal., p. 87.

5. THE HEIR MUST NOT BE JOINED WITH THE ADMINISTRATOR, in an action to recover a debt due