debt has been collected; he is the real party in interest, and is fully authorized to sue in his own name.1

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§ 133. The following are particular cases in which the assignee was held by the courts to be the real party in interest within the meaning of the codes, and entitled as such to sue in his own name: Where a bond or a mortgage was assigned verbally; 2 the assignment of a receipt and delivery order, which was in the following words: "1000 bushels of corn. Received in store, on account of S. F. A., 1000 bushels of corn, to be delivered to his order at, etc. etc. (signed) W. H. H.;" assignment of a promissory note payable to order without any indorsement; 4 the assignment of a debt evidenced by a lost note; where the assignment of a bond or note was by means of a separate instrument in writing; the assignment of a claim arising from an agreement to pay the defendant in a certain pending suit a stipulated sum of money if he would withdraw his defence; the assignment of a claim for damages resulting from the wrongful conversion of chattels ; the assignment by a widow of her right of dower after the death of her husband, but before the dower had been set apart to her. The mere parting with the possession of a note does not, however, constitute an assignment thereof, and the owner is the proper party to sue, although the instrument is in the hands of another person with whom it has been deposited. 10 The assignee of a foreign executor or administrator may

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8

1 Cummings v. Morris, 25 N. Y. 625; 8. c. 3 Bosw. 560. In delivering the judgment of the Court of Appeals, Allen J. said (p. 627): "The object of the provision (§ 111) was to abolish the distinction between the former practice of courts of chancery and of common law, and to give full effect at law, as well as in equity, to assignments of rights in action, by permitting and requiring the assignee to sue in his own name. If between the assignor and the assignee the transfer is complete, so that the former is divested of all control and right to the cause of action, and the latter is entitled to control it and receive its fruits, the assignee is the real party in interest, whether the assignment was with or without consideration, and notwithstanding the assignee may have taken it subject to all equities between the assignor and third persons."

2 Conyngham v. Smith, 16 Iowa, 471 ; Barthol v. Blakin, 34 Iowa, 452; Green v. Marble, 37 Iowa, 95; Andrews v. McDaniel, 68 N. C. 385.

3 Merchants and Mechanics Bank v. Hewitt, 3 Iowa, 93.

4 Carpenter v. Miles, 17 B. Mon. 598; White v. Phelps, 14 Minn. 27; Pease v. Rush, 2 Minn. 107; Pearson v. Cummings, 28 Iowa, 344; Hancock v. Ritchie, 11 Ind. 48.

Long v. Constant, 19 Mo. 320.

6 Thornton v. Crowther, 24 Mo. 164; Peters v. St. Louis, &c., R. R., 24 Mo. 586. 7 Gray v. Garrison, 9 Cal. 325.

8 Smith v. Kennett, 18 Mo. 154; Lazard v. Wheeler, 22 Cal. 139. In this last case, an action by the assignee to recover possession of the chattels was sustained. 9 Strong v. Clem, 12 Ind. 37. 10 Selden v. Pringle, 17 Barb. 458.

maintain an action in his own name to recover a debt due to the estate from a person residing within the State in which the suit is brought. Upon the same principle, when a demand not arising within the State, in favor of one foreign corporation against another foreign corporation, is assigned to a resident of the State, such assignee may maintain an action upon it against the debtor corporation, although the original creditor is expressly forbidden by statute to sue under such circumstances. The prohibition of an action between the foreign corporations does not affect the assignability of the claim.2

§ 134. The assignee of a judgment recovered by the defendant in an action brought to recover the possession of chattels may sue in his own name upon a bond given by the plaintiff upon the requisition made for a delivery of the goods to him. The assignment of the judgment carries with it all demands arising upon this bond or undertaking, and the assignee is the real party in interest. In like manner, the assignee of a judgment recovered against a sheriff for official misconduct in seizing the plaintiff's property may bring an action in his own name upon the sheriff's bond. The principle may be stated more broadly. The assignee of any claim or demand may, in general, sue in his own name upon any incidental or collateral security connected with the demand, and by means of which its payment or satisfaction can be enforced. Thus, the assignee of a judgment obtained in a garnishee process may maintain an action in his own name against the garnishees; the assignee of the cause of action in a pending litigation may sue on an appeal bond given to the plaintiff [the assignor] in the course of the proceedings. The assignee of a reversion and also of the covenants contained in the lease is the proper party to bring an action to recover damages arising from a breach of such covenants.

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1 Petersen v. Chemical Bank, 32 N. Y. 21. The decision turned largely upon the law as to foreign administrators and successions. In reference to the questions now under consideration, Denio J. said (p. 45): The law of maintenance prohibited the transfer of the legal property in a chose in action so as to give the assignee a right of action in his own name. But this is now abrogated; and such a demand as that asserted against the defendant in this suit may be sold and conveyed so as to vest in the purchaser all

When a surviving partner assigns

the legal as well as the equitable rights of the original creditor."

2 McBride v. Farmers Bank, 26 N. Y. 450, 457.

3 Bowdoin v. Coleman, 3 Abb. Pr. 431. 4 Charles v. Haskins, 11 Iowa, 829. 5 Whitman v. Keith, 1 Ohio St. 134. . In this case, Mr. Justice Scott gives a very full and clear exposition of the statutory provision under consideration.

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things in action which belonged to the firm, the assignee succeeds to his rights, and must sue in his own name to collect the same.1 § 135. In Kentucky, if the assignment is equitable, which is defined to be an assignment not expressly authorized by statute to be made, although the assignee must sue in his own name, the assignor must also be joined as a party plaintiff or defendant;2 as, for example, when an execution is assigned,3 or a lease. In certain States, where the thing in action is not negotiable, or assignable by indorsement, the assignor may be joined as a defendant to answer to his interest and to the assignment.5 In other States, however, where similar provisions are not found in the codes or practice acts, the rule is entirely different, and the assignor is not a proper party either plaintiff or defendant. Thus, in Ohio, an assignor having been made a defendant under the general provisions of the code relating to the joinder of parties plaintiff and defendant, it was held that he neither had an interest in the controversy adverse to the plaintiff, nor was he a necessary party to a complete determination or settlement of the questions involved therein, and therefore he had been improperly made a defendant." This is undoubtedly the rule in all the States whose codes do not contain the special provision permitting or requiring the joinder of assignors in order to answer to the assignment. And even though he may retain some residuary, contingent, or equitable interest, the assignor is not the proper party to sue; the legal title is not only in the assignee, but he is entitled to receive all the proceeds of the recovery, and whatever possibilities the assignor may have, he is not the real party in interest.7

statute of 32 Henry VIII. c. 34, allowing the assignee of the reversion to sue on covenants running with the reversion, had not been enacted in Ohio, proceeds (p. 346): "Our code of civil procedure operates on the remedy even more extensively than the statute of 32 H. VIII. c. 34. For whether the covenant be collateral or inhere in the land, if it be assigned, the assignee not only may, but must, sue in his own name."

1 Roys v. Vilas, 18 Wisc. 169.

2 Dean v. English, 18 B. Mon. 132; Gill v. Johnson, 1 Metc. 649; Lytle v. Lytle, 2 Metc. 127.

3 Watson v. Gabby, 18 B. Mon. 658, 665.

4 Hicks v. Doty, 4 Bush, 420. By 1 R. S. ch. 22, § 6, "all bonds, bills, or notes for money or property shall be assignable so as to vest the right of action in the assignee."

5 Code of Indiana, § 6.

6 Allen v. Miller, 11 Ohio St. 374.

7 Smith v. Chicago & N. W. R. R., 23 Wisc. 267, where it appeared that in proceedings supplementary to execution, before instituted against the plaintiff in another State, the demand in suit had been assigned to a receiver; this was held a complete defence.

§ 136. The thing in action may even be assigned while a suit upon it is pending, and, by the express provisions of the statute, the assignee may either be substituted as plaintiff, or the suit may be carried on to its termination in the name of the original party. Such substitution, when made, is not the bringing of a new action, and does not require a supplemental complaint. If an assignee carries on a suit in the name of the assignor, he must show affirmatively that the transfer was made pendente lite.1

§ 137. It has been decided in some cases that the assignment of part of an entire claim does not enable the assignee to sue in his own name, but that the assignor must still sue for the whole demand. This rule is based upon the old doctrine of the indivisibility in law of an entire thing in action. Other cases hold that such an assignment conveys an equitable interest, and makes the assignee an equitable owner, so that he may sustain an action brought in his own name, although the assignors may, upon their own application, be allowed to intervene, in order to protect their interests.3 The grantee of land cannot sue in his own name to recover damages for the breach of covenants in the deed to his grantor which do not run with the land, unless the covenants themselves have also been assigned, but the grantor is the proper party; as, for example, the grantee cannot sue upon a covenant of seisin in the deed to his grantor, in those States where that covenant is regarded as broken immediately, if at all, upon the execution of the deed, and as not running with the land.*

§ 138. It is no longer, consistently with the provisions of the codes, possible for one person to sue "to the use of" another, as was common in some States. The parties beneficially interested must themselves bring the action.5 There are cases which hold that when there is a trustee of an express trust, he must bring the action, and that the beneficiary can in no such case sue in his

1 St. Anthony Mill Co. v. Vandall, 1 Minn. 246; Virgin v. Brubaker, 4 Nev. 31; Warner v. Turner, 18 B. Mon. 758.

2 Cable v. St. Louis Marine Railway Co., 21 Mo. 133, Leese v. Sherwood, 21 Cal. 151. See Lapping v. Duffy, 47 Ind. 56; Boyle v. Robbins, 71 N. C. 130.

3 Grain v. Aldrich, 38 Cal. 514; Wig

gins v. McDonald, 18 Cal. 126.

4 Hall v. Plaine, 14 Ohio St. 417. Under the peculiar circumstances of this

case, the court held that the grantee might sue, because he was the real owner of the land, even when in the hands of his grantor; but the general doctrine of the text was affirmed.

5 Weise v. Gerner, 42 Mo. 527; Hutchings v. Weems, 35 Mo. 285; Brady v. Chandler, 31 Mo. 28; Van Doren v. Relfe, 20 Mo. 455; Wilkes v. Morehead, Stanton's Code (Ky.), p. 31 (n.); Lytle v. Lytle, 2 Metc. 127, 128.

own name, at least alone.1 The correctness of this ruling may well be doubted. The section relative to the real party in interest is, in all the codes, imperative; while that in relation to the trustee of an express trust is permissive.

§ 139. The cases thus far considered in this section are all connected with the assignment of a thing in action by the original creditor, and they involve the question, When may the assignee, under such circumstances, be the party plaintiff in an action to enforce the assigned demand? The rule of the statute, that every action must be brought in the name of the real party in interest, applies also to numerous cases which have no connection whatever with assignments and assignees; and I propose, in the remainder of this section, to review and examine these other illustrations of the principle. It is now the settled doctrine in so many of the States, that it may be called the American doctrine, although the contrary rule has been established in England and in some States, and notably in Massachusetts, where it has been very recently reaffirmed with emphasis, that, where an express promise is made by A. to B., upon a consideration moving from B., whereby the promisor engages to do something for the benefit of C., as, for example, to pay him a sum of money, although C. is both a stranger to the consideration and not an immediate party to the contract, yet he may maintain an action upon the promise in his own name against the promisor, without in any manner joining as a party the one to whom the promise was directly made. This rule was originally adopted prior to the reformed procedure, and was based partly upon considerations of convenience, and partly upon a liberal construction of the nature of the contract. The provision of the codes under review places the matter beyond all doubt; for the person for whose benefit the

1 Reed v. Harris, 7 Robt. 151. A Spe. cial Term decision, and not entitled to much weight. See Western R. R. v. Nolan, 48 N. Y. 513.

2 Kimball e. Noyes, 17 Wisc. 695; Sanders v. Clason, 13 Minn. 379; Meyer t. Lowell, 44 Mo. 328; Cross v. Truesdale, 28 Ind. 44; Devol v. McIntosh, 23 Ind. 529; Day e. Patterson, 18 Ind. 114; Rice r. Savery, 22 Iowa, 470; Scott v. Gill, 19 Iowa, 187; Allen v. Thomas, 3 Metc. (Ky.) 198; Wiggins v. McDonald, 18 Cal. 126; Miller & Co. v. Florer, 15 Ohio St. 148, 151, per White J. Rogers v. Gosnell, 58

Mo. 589, 590; 51 Mo. 466; Myer v. Lowell, 44 Mo. 328; Coster v. Mayor of Albany, 43 N. Y. 399, 411; Van Schaick v. Third Avenue R. R., 38 N. Y. 346; Ricard v. Sanderson, 41 N. Y. 179; Barker v. Bradley, 42 N. Y. 316, 319; Secor v. Lord, 3 Keyes, 525; Claflin v. Ostrom, 54 N. Y. 581, 584; Cooley v. Howe Machine Co., 53 N. Y. 620; Glen v. Hope Mut. Life Ins. Co., 56 N. Y. 379, 381; Barlow v. Meyers, 6 N. Y. Sup. Ct. 183; Johnson v. Knapp, 36 Iowa, 616; Jordan v. White, 20 Minn. 91.