an action in his own name.-Wheatley vs. Strobe, 12 Cal., p. 98. If the assignment was absolute of a whole demand, although he only acquired a portion thereof, yet the assignee may sue for the whole debt.-Gradwohl vs. Harris, 29 Cal., p. 150. But the assignment of a portion of a debt does not constitute the assignee a joint owner in the whole debt, and he need not necessarily be joined as a party in an action to recover the debt.-Leese vs. Sherwood, 21 Cal., p. 152.

18. ASSIGNMENT OF CONTRACT AS SECURITY OF DEBT, ETC.-"An assignment of a contract as a security for a debt, and also in consideration of a covenant not to sue upon the debt, entitles the assignee to sue on the contract in his own name."-Warner vs. Wilson, 4 Cal., p. 310 (syllabus); see, also, Gray vs. Garrison, 9 Cal., p. 325. When assignee of a judgment may sue on appeal bond.-See Moses vs. Thorne, 6 Cal., p. 88.

19. INDORSERS AND INDORSEES.-The holder of a non-negotiable note may maintain an action against the person assigning the same to him, and also against every one from whose hands the note has passed by assignment.-Hamilton vs. McDonald, 18 Cal., p. 128. If a new promise has been made to a payee, a subsequent indorsee succeeds to the rights of the payee, and may maintain an action upon it.-Smith vs. Richmond, 19 Cal., p. 476.

20. JOINT CONTRACTS, BILLS OF LADING, AND LEASES.-As to joint contracts, both joint contractors must be joined as plaintiffs in an action thereon, notwithstanding only one of the contractors has sustained damage. See McGilvery vs. Moorehead, 3 Cal., p. 267. A suit being brought upon a bill of lading made to the plaintiff jointly with another party. Held: the plaintiff had no separate cause of action.-Mayo vs. Stansbury, 3 Cal., p. 465. Also, as to joint leases, see Treat vs. Liddell, 10 Cal., p. 302.

21. ACTIONS BY OR AGAINST COUNTIES.-See Political Code, Secs. 4000, 4003, and 4452, and notes. See, also, Smith vs. Myers, 15 Cal., p. 33; Mendocino Co. vs. Lamar, 30 Cal., p. 627; Mendocino Co. vs. Morris, 32 Cal., p. 145; Placer Co. vs. Austin, 8 Cal., p. 305; Price vs. Sacramento Co., 6 Cal., p. 254; Sacramento Co. vs. Bird, 31 Cal., p. 66; Solano Co. vs. Nevil, 27 Cal., p. 468; Sharp vs. Contra Costa Co., 34 Cal., p. 284.

22. EJECTMENT SUITS "ALL PERSONS HAVING AN INTEREST IN THE SUBJECT OF THE ACTION," ETC.Actions of ejectment must be prosecuted in the name of the real party in interest.-Ritchie vs. Dorland, 6

Cal., p. 33. See, also, Seaward vs. Malotte, 15 Cal., p. 304; Collier vs. Corbett, 15 Cal., p. 183; Stark vs. Barrett, 15 Cal., p. 361; Touchard vs. Crow, 20 Cal., p. 162. If the action is brought for the community property of husband and wife, the action should be by the husband alone.-Mott vs. Smith, 16 Cal., p. 533. An heir at law can maintain the action without entry upon the land. See Soto vs. Kroder, 19 Cal., p. 87; see, also, Estate of Woodworth, 31 .Cal., p. 604; Updegraff vs. Trask, 18 Cal., p. 458.

23. NON-RESIDENT ALIEN.-A non-resident alien may be plaintiff in an action of ejectment.-People vs. Rogers, 13 Cal., p. 165.

24. PARTY TO A FRAUD.-A party to a fraud cannot maintain an action thereon.-Dupuy vs. Williams, 26 Cal., p. 313.

25. PARTNERS-ACTIONS AGAINST EACH OTHER.One partner cannot sue the other in an action at law. The remedy is by bill in equity for a dissolution and an account.-Barnstead vs. Empire Mining Company, 5 Cal., p. 299; Stone vs. Fouse, 3 Cal., p. 292; Russel vs. Ford, 2 Cal., p. 86; see, also, Buckley vs. Carlisle, 2 Cal., p. 420.

26. CHURCH-WHO REPRESENTS IN AN ACTION.Priest may have power to sue for the church.-See Santillan vs. Moses, 1 Cal., p. 94.

27. THE STATE MAY BE A PARTY.-Civil actions.See State vs. Poulterer, 16 Cal., p. 532. A private person cannot bring a suit for private wrongs in the name of the State.-See People vs. Pacheco, 29 Cal., p. 210. The State cannot be plaintiff in certain actions where she has no interest.-See People vs. Stratton, 25 Cal., p. 244.

28. WHO MAY BRING ACTION TO ANNUL PATENTS TO MINES.-The State, and persons who have a right to mine on the land under the mining laws of this State, may be joined as plaintiffs in an action to annul a patent for land sold illegally.-People vs. Morrill, 26 Cal., p. 352; Wilson vs. Castro, 31 Cal., p. 420; see, also, however, People vs. Stratton, 25 Cal., p. 244.

29. STATE CANNOT BE SUED--Except as may be authorized by some statute.-People vs. Talmage, 6 Cal., p. 256.

30. ADMINISTRATORS WHEN PROPER PARTIES.-In an action to recover judgment on a promissory note, the suggestion of the death of the defendant, and the substitution of his administrator and the continuance of the suit against him, subjects the proceedings to such rules of the Probate Act as are applicable to proceed

ings for the collection of claims against an estate of a deceased person.-Meyers vs. Mott, 29 Cal., p. 359.

31. ADMINISTRATORS WHEN PARTIES.-Though the defendant in such an action be described in the caption of the complaint as administrator, yet the facts show that it is not sought to charge him as administrator, and no relief is sought against the estate. Held: that the objection that he is sued in his representative capacity is untenable.-People vs. Houghtaling, 7 Cal., p. 348; Lathrop vs. Bampton, 31 Cal., p. 17.

32. SAME PERSON INTERESTED BOTH AS PLAINTIFF AND DEFENDANT.-Person being payee of a note and mortgage, and also payers of the same jointly with others may sue the other joint payers. Where thirteen persons made a joint and several promissory note, payable to three of their number, and all joined in the execution of a mortgage to secure the payment of the notethe plaintiff's being both payers and payees in the note, and the mortgagors and mortgagees in the mortgageand, subsequently, the payees of the note brought suit against the other makers, and for a foreclosure of the mortgage. Held: that the suit was properly brought, and plaintiffs were entitled so a judgment of foreclosure.-McDowell vs. Jacobs, 10 Cal., p. 387.

33. ACTIONS TO FORECLOSE MORTGAGES.-The plaintiff had the right to go into equity and foreclose the mortgage given to the principal to secure the note if he was really interested in the subject matter.-Ord vs. McKee, 5 Cal., p. 515.

34. MORTGAGE GIVEN TO SECURE SEPARATE DEBTS OF SEVERAL PERSONS AS MORTGAGEES.-"Where a mortgage is given to secure the separate debts of several persons as mortgagees, it is a several security, and may be enforced by each creditor, as in case of a separate mortgage. But when other parties are interested in the property, the Court will require them to be brought in before ordering a sale or foreclosure.”— Tyler vs. Yreka Water Co., 14 Cal., p. 212, (syllabus.)

35. ACTIONS BY ASSIGNEES TO FORECLOSE MORTGAGE.-Where an assignment of a note and mortgage has been made to plaintiffs, to indemnify them as sureties on a bail bond for the assignor, and where suit is then pending on such bond, it is proper for them, as such assignees, to institute suit on the note and mortgage; and a decree of foreclosure in such case, with directions to pay the money into Court, to await the further decree of the Court, is proper, or at least there is no error in such a decree to the prejudice of the de

fendants.-Hunter & Davis vs. Levan and wife, 11 Cal., p. 11.

36. STRANGER IN INTEREST.-A mere stranger, who voluntarily pays money due on a mortgage, and fails to take an assignment thereof, but allows it to be canceled and discharged, cannot afterwards come into equity, and in the absence of fraud, accident, or mistake of fact, have the mortgage reinstated, and himself substituted in the place of the mortgagee.-Guy vs. Du Uprey, 16 Cal., p. 195.

37. PARTIES PLAINTIFF IN SUIT OF INJUNCTON BOND.-If several parties are severally in possession of and cultivating in separate parcels a tract of land, and are sued jointly in ejectment to recover possession of the whole tract, and an injunction is obtained restraining them jointly from taking off the crops, these parties cannot maintain a joint action for damages on the injunction bond, provided their damages are not joint. They can maintain a joint action for such damages only as are joint, such as attorney's fees. Fowler vs. Frisbie, 37 Cal., p. 34.

38. ACTION OF INJUNCTION BOND FOR SEVERAL DAMAGES.-The fact that the plaintiff brings a joint action against several persons as trespassers, and obtains an injunction against them jointly, does not estop him, in an action brought against him on the injunction bond, from showing that the damages were several, and from claiming that they cannot maintain a joint action for several damages.-Fowler vs. Frisbie, 37 Cal., p. 34.

39. PARTY PLAINTIFF IN ACTION FOR DECEIT.-An action for deceit in the sale of land to which the grantor had no title, should be brought by all the grantees jointly, unless there has been a conveyance of the cause of action to the plaintiff. A conveyance by one of the grantees to the others of his interest in the land, does not assign the cause of action for deceit, so as to enable the assignees to sue for the deceit in their names. Lawrence vs. Montgomery, 37 Cal., p. 183.

40. PLAINTIFFS IN SUIT UPON COVENANTS IN A DEED.-All the grantees should join as plaintiffs in an action upon either a direct or implied covenant in a deed, that the grantor has not sold or incumbered the land, or that he is seized of and has a right to convey the same. A deed of the land by one of the grantees to another, does not convey to him the cause of action upon such covenant.-Lawrence vs. Montgomery, 37 Cal., p. 183.

30 VOL. I.

Who may

41. PARTIES HAVING A PART INTEREST MUST BE JOINED.-All the parties having a part interest in the subject matter should be joined as plaintiffs, but the defect must be taken advantage of by answer or apportionment of damages, where it does not appear on the face of the complaint.-Whitney vs. Stark, 8 Cal., p.

514.

42. CONSTRUCTIVE PARTIES IN ACTION UPON BOND. In an action upon a bond or written undertaking there can be no constructive parties jointly liable with the proper obligors.-Lindsay vs. Flint, 4 Cal., p. 88.

379. (§ 13.) Any person may be made a defendbe joined as defendants. ant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein. And in an action to determine the title or right of possession to real property which, at the time of the commencement of the action, is in the possession of a tenant, the landlord may be joined as a party defendant.

NOTE.-1. PARTIES UNITED IN INTEREST.-All parties united in interest should be joined.-See Sec. 382, post.

2. TENANTS IN COMMON.-One or more may be defendants.-See Sec. 384, post; also, Sec. 378, ante, note. See, also, Sec. 382, post.

3. WHEN ONE PARTY MAY DEFEND FOR ALL.See Sec. 382, post.

4. MARRIED WOMEN.-See Sec. 370, ante.

5. EXECUTOR, ADMINISTRATOR, ETC.-See Sec. 369, ante.

6. INFANTS, GUARDIANS, ETC.-See Sec. 372, ante. 7. TRUSTEES OF EXPRESS TRUST.-See Sec. 369, ante.

8. PARTNERS.-May be sued in firm name.-Sec. 388, post.

9. ACTIONS TO QUIET TITLE.-See Sec. 738, post. 10. PERSONAL REPRESENTATIVES AND SUCCESSORS IN INTEREST.-See Sec. 385, post.

11. PARTIES SEVERALLY LIABLE UPON THE SAME OBLIGATION.-See Sec. 383, post. ·

12. IF A NECESSARY PARTY WILL NOT CONSENT TO BE JOINED AS PLAINTIFF, he may be made defendant.-See Sec. 382, post.

13. SUBSTITUTION OF ANOTHER Party as Defend