parties, the agreement being in express terms made with him, he is a proper party to enforce its observance; the agent may also sue, even where the principal was disclosed, and it was shown that he was acting in behalf of such principal, if the contract is of such a form that the promise is in express terms made to the agent himself. Where the promise in favor of a principal is implied, the agent cannot in general sue upon it in his own name, but the action must be brought by the principal himself. Thus, where a person making a bet in his own name deposited $3,000, the amount thereof, with the stakeholder, but of this sum only $600 was his own money, and the rest had been furnished by other parties not as a loan who united with him in the wager, and he brought an action under the statute against the stakeholder to recover back the whole amount of the money so deposited by him, it was held by the New York Court of Appeals that he could only recover the $600 which he had actually furnished of his own funds; that he was simply an agent for the owners of the remaining portion of the moneys advanced, and the implied promise to refund arose in their favor alone; and they must therefore sue in their own names to recover their respective shares.3

§ 142. It is the established doctrine in several States, and by many cases, that an action cannot be maintained by a private person, citizen, freeholder, or tax-payer, either suing alone or on behalf of all others similarly situated, to restrain or remove or redress any public wrong, or nuisance, or unlawful act done under color of legal authority by the officers of a county, town, eity, or other municipality, unless the plaintiff has suffered some special wrong, unless some particular injury is done to him which is not sustained by all others in the community alike. As a result of this rule, no citizen or tax-payer or freeholder can prosecute an action to restrain official acts which would create a

1 See cases cited in last note. Tyler with himself by name." In this case, the . Freeman, 3 Cush. 261.

right of action, it was held, rested upon the defendant's implied duty of restoring the money. "But this implied duty or assumpsit arises only in favor of those to whom the money in fact belonged, and therefore cannot be enforced in the name of another person to whom the obligation is in no sense due."

municipal indebtedness; or to set aside and annul such public acts when done, although the indebtedness must some time be paid by means of increased taxation, and the plaintiff's property would be liable for his proportionate share of the tax when levied. On the other hand, actions of the nature and for the purposes described brought by a citizen, tax-payer, or freeholder, are permitted in many and perhaps in a majority of the States, and are common forms of judicial proceeding to restrain the abuse of local legislative and administrative power by municipal officials. Among these remedial processes are actions by a citizen, tax-payer, or freeholder, to restrain or set aside tax proceedings, the levying of assessments for local improvements, the issue of bonds by municipal corporations in aid of railways, and similar acts of a public or quasi public nature.2 On the other

1 Doolittle v. Supervisors of Broome Co., 18 N. Y. 155; Roosevelt v. Draper, 23 N. Y. 318; People v. Mayor, 32 Barb. 102; Sargent v. Ohio and Miss. R. R., 1 Handy, 52; Carpenter v. Mann, 17 Wisc. 155; Kittle v. Fremont, 1 Neb. 329; Craft v. Commissioners, &c., 5 Kans. 518; Kirkpatrick v. State, 5 Kans. 673; Tift v. City of Buffalo, 1 N. Y. Sup. Ct. 150; Comins v. Supervisors, 3 ib. 296; Ayres v. Lawrence, 63 Barb. 454

2 Rice v. Smith, 9 Iowa, 570; State v. Bailey, 7 ib. 390; State v. Co. Judge, 7 ib. 186; Litchfield v. Polk Co., 18 ib. 70; Olmstead v. Supervisors, 24 ib. 33; Williams v. Peinny, 25 ib. 436; Stokes v. Scott Co., 10 ib. 166; McMillan v. Boyles, 14 ib. 107; Rock v. Wallace, 14 ib. 593; Ten Eyck v. The Mayor, 15 ib. 486; Chamberlain v. Burlington, 19 ib. 395; Hanson v. Vernon, 27 ib. 28; Hubbard v. Johnson Co., 23 ib. 130; Harney v. Charles, 45 Mo. 157; Scribner v. Allen, 12 Minn. 148; Howes v. Racine, 21 Wisc. 514; Mitchell v. Milwaukee, 18 ib. 92, 97; Bond v. Kenosha, 17 ib. 284, 287; Veeder v. Town of Lima, 19 ib. 280, 295299; Rochester . Alfred Bank, 13 ib. 432, 439; Sauerhering v. Iron Bridge, &c. R. R., 25 ib. 447 ; Warden v. Supervisors, 14 ib. 618; Kellogg v. Oshkosh, 14 ib. 623; Nill v. Jenkinson, 15 Ind. 425; Lewis v. Henley, 2 ib. 332; La Fayette v. Fowler, 34 ib. 140; Harney v. Indianapolis, &c. R. R., 32 ib. 244; Coffman v.

Putnam Co, 24 ib. 509; Oliver v. Putnam Co., 24 ib. 514; Nave v. King, 27 ib. 356; Harrison Co. v. McCarty, 27 ib. 475; Madison Co. v. Brown, 28 ib. 161; Andrews v. Pratt, 44 Cal. 309; Bucknall v. Story, 36 Cal. 67; Douglass v. Placerville, 18 Cal. 643; Vanover v. Justices, &c., 27 Ga. 354; Brodnax v Groom, 64 N. C. 244; Galloway v. Jenkins, 63 N. C. 147; Worth v. Fayetteville, 1 Wins. (No. 2, Eq. N. C.) 70; Mobile v. Waring, 41 Ala. 139; Gilmer v. Hill, 22 La. An. 465; White Sulphur Springs Co. v. Holly, 4 W. Va. 597; Bull v. Read, 13 Gratt. 78; Baltimore v. Gill, 31 Md. 375, 395; Stoddert v. Ward, 31 Md. 562; Lane v. Schomp, 5 C. E. Green, (N. J.) 82; Merrill v. Plainfield, 45 N. H. 126; Barr v. Deniston, 19 N. H. 170, 180; New London v. Brainard, 22 Conn. 552; Scofield v. Eighth School Dist., 27 ib. 499, 504; Webster v. Harwinton, 32 ib. 131; Terret v. Sharon, 34 ib. 105; Supervisors v. Hubbard, 45 Ill. 139; Vieley v. Thompson, 44 Ill. 9; Cleghorn v. Postlewaite, 43 ib. 428; Taylor v. Thompson, 42 ib. 9; Clark v. Supervisors, 27 ib 305, 311; Butler v. Dunham, 27 ib. 474; Perkins v. Lewis, 24 ib. 208; Robertson v. Rockford, 21 ib. 451; Prettyman v. Supervisors, 19 ib. 406; Drake v. Phillips, 40 ib. 388; Colton v. Hanchett, 13 ib. 615; Dows v. Chicago, 11 Wall. 108. See Dillon on Munic. Corp. §§ 727, 731-738 (2d ed.); Allison v. Louisville, &c. R. R., 9 Bush,

hand, the people cannot maintain a civil action for the redress of mere private wrongs. An action can be brought in their name only to uphold and enforce a distinct right on their part in respect to the subject-matter of the controversy.1

§ 143. The last clause of § 111 in the New York Code was added as an amendment merely for purposes of certainty, and to remove all possible doubts as to the true meaning of the section. As it was originally enacted without this clause, a doubt had sometimes been suggested whether any action at all could be brought under the circumstances mentioned in the amendment, that is, when land had been conveyed by an owner which at the time was held by a disseisor adversely to such true owner. If brought by the grantee, he could show no title, because the conveyance to him would, by virtue of other rules of the law, be deemed a nullity. If brought in the name of the grantor, it might be said that he was not the real party in interest, and, under the requirements of this section, was forbidden to sue. The code was therefore amended so as to exclude the latter construction, by adding the final provision as it now stands. The purpose of this amendment is really to limit and restrict the operation and effect of the section as originally enacted, and not to create any new authority or right as between the grantor and the grantee for the use of the former's name by the latter, nor to create any new title to the land in the grantee himself.2 An express provision exists in the codes of certain States, authorizing partnerships to sue and to be sued by and in their firmnames, without making the individual members by name parties to the action. This provision is merely permissive, and not at all compulsory; it is not a substitute for, but an addition to, the former existing methods of conducting suits.3

247. See also the very late N. Y. cases, Longley v. City of Hudson, 4 N. Y. Sup. Ct. 353; Marsh v. City of Brooklyn, ib. 413; Board of Comm'rs. v. Markle, 46 Ind. 96, 103-105; Zorger v. Township of Rapids, 36 Iowa, 175; Minnesota Oil Co. v. Palmer, 20 Minn. 468; Hodgman v. Chicago & St. P. R. R., 28 Minn. 48.

1 People v. Albany & Susq. R. R., 57 N. Y. 161. People v. Ingersoll, 58 N. Y. 1; People v. Fields, 58 N. Y. 491. See People v. Sherwin, 2 N. Y. Sup. Ct. 528.

2 Hamilton v. Wright, 37 N. Y. 502, 507, per Woodruff J.

3 Whitman v. Keith, 18 Ohio St. 134.

SECTION THIRD.

THE ASSIGNABILITY OF THINGS IN ACTION.

§ 144. As the immediate effect of the statutory provision in the preceding section is to enable the assignee of a thing in action to sue in his own name, the question arises and becomes very important in this connection, What things in action are and what are not assignable? This subject is most intimately bound up with that which immediately went before, for it is impossible to determine who is the real party in interest in all cases until it has been determined what things in action may be assigned. The topic has its legitimate place, therefore, in a chapter which treats of parties. Although the clause, which is found in exactly the same words in all the State codes, "Every action must be prosecuted in the name of the real party in interest," allows the assignee of the thing in action to sue in his own name, yet it does not of itself affect the quality of assignability; it does not render any such demands assignable, but leaves them as they were before its enactment under the operation of existing rules of the law. Even the clause which follows in some of the States, -"but this section shall not be deemed to authorize the assignment of things in action not arising out of contract," — although doubtless intended to limit the effect of the preceding general requirement, has really no practical effect. The section does not authorize the assignment of any things in action, either growing out of tort or out of contract, and it was therefore an empty legislative prohibition to say that it should not be deemed to authorize the assignment of those arising out of tort. It is not said that those things in action arising out of tort shall not be assigned, but only that the authority for such a transfer shall not be found in this particular section of a single statute. If the right to assign such demands is conferred by other statutes, or by any rules of the law independent of statute, it is not taken away by these apparently restrictive clauses. We shall, therefore, find in all the States, and notwithstanding this special provision, that things in action arising out of certain kinds and classes of torts may be assigned as freely and as fully as those springing from contracts.

§ 145. The assignability of demands lying in action was well known prior to the codes of procedure. All contracts in the form of negotiable paper were of course transferable, so that the holder could sue upon them in courts of law in his own name. Other things in action were truly assignable, so that the assignee was regarded as the real owner, but on account of certain ancient technical rules of the common law, which had never been abrogated, he was obliged to bring an action on them at law in the name of the assignor; but if the subject was within the cognizance of a court of equity, he could sue in that tribunal in his own name. The effect of the codes is to extend this equity rule to legal actions. To ascertain what demands are thus transferable, we must recur to rules established prior to and independent of the new system which regulates procedure. There are very few statutes which expressly legislate upon the subject of assignability and directly confer that quality; but there are in most if not all the States special laws which indirectly produce this result. The department of jurisprudence which controls the succession to the personal estates of deceased persons is now very generally reduced, in whole or in part, to a statutory form. Among these express enactments are almost, if not quite, universally found provisions which describe, define, and enumerate the kinds and classes of rights, claims, and demands which had belonged to the decedent, and which pass to his executors or administrators as assets of the estate, and of liabilities which had rested upon the decedent, and which pass over against his personal representatives, and continue to rest upon them in their representative capacity. In other words, these statutes, following a general division recognized by the ancient law, but often altering that division in its details, separate the rights, claims, demands, and liabilities which can belong to or rest upon persors into two classes. The rights, claims, demands, and liabilities forming the one class survive after the death of the person who held or was subject to them, and pass to his executors and administrators as either assets of or as claims against the estate in their hands; those of the other class cease with the death of the person who held or was subject to them, and do not pass to his representatives as assets or liabilities, which last rule, as it anciently existed, was expressed by the maxim, actio personalis moritur cum persona.