2. The words, "assigned to Ryan and Callaghan," and signed, "Jon. Nutt," is a good and sufficient assignment. Ryan v. Maddux, 6 Cal. 247.

3. A chose in action arising out of a tort, is not assignable, and the assignor is a necessary party plaintiff. Oliver v. Walsh, 6 Cal. 456.

4. The objection to a witness need not be only in a suit brought by the assignee. A substantial and a formal assignee stand alike on the same ground. Adams v. Haskell, 8 Cal. 306.

5. The assignor of a claim is incompetent as a witness in favor of the claim, when his assignee is a formal party to the record, and equally so, when the suit is prosecuted for the immediate benefit of his assignee, though not a party. Ib.

6. An agreement to pay a certain amount of money to a defendant, if he would withdraw his defense to a suit, is assignable; and such assignment gives a right of action in the name of the assignee, and the assignor may be a competent witness. Gray v. Garrison, 9 Cal. 325.

7. Where T., the holder of a note made by C., which he did not wish to sue in his own name, delivered the same to K., taking from the latter his own note for the amount, payable at a future day, upon the understanding that K. should prosecute the note of C., and that if he should not succeed in the collection thereof, he was not to pay the note given by him to T., but that such note was then to be returned to him: held, that K. could not maintain an action on the note of C., he not being the real party in interest. Killmore v. Culver, 24 Barb. 656.

8. The assignee of a cause of action is entitled to judgment, although the assignment be without consideration, and a mere gift. Richardson v. Mead, 27 Barb. 178; Mills v. Fox, 4 E. D. Smith, 220.

9. A dormant partner is a necessary party to an action by the copartnership. Secor v. Keller, 4 Duer, 416.

10. An endorser of negotiable paper is not an assignor within the meaning of the act. Anderson v. Busteed, 5 Duer, 485.

11. Every action must be prosecuted in the name of the real party in interest. Camden Bank v. Rodgers, 4 How. Pr. 63.

12. In an action by the assignee of a claim, a demand existing prior to the assignment in favor of defendant and against the assignor, is unavailable as a counter claim. It must be pleaded as a defense. Ferreira v. Depew, 4 Abb. 131; Dillayev. Niles, ib. 253.

13. This section is to be construed with reference to the principle of representation which prevailed in the doctrine of parties in chancery; and, as a general rule, if the defendant will be perfectly protected by responding to the plaintiff, and if there is no necessity or substantial equity in protecting the fund against the plaintiff himself, if recovered, the plaintiff may be regarded as the real party in interest, within the meaning of this section. Myers v. Machado, 6 Abbott, 198.

14. A complaint by an assignee, which, after setting out the chose in action upon which suit is brought, and stating that on such a day, etc., it was assigned by the payee to the plaintiff, alleges that it is the property of the assignor, is bad on demurrer that it does not state facts sufficient to constitute a cause of action, although the assignment stated was in trust, and the plaintiff alleges that he has possession of the note. Palmer v. Smedley, 6 Abbott, 205.

15. No formality is necessary to effect the transfer of a chose in action. Any transaction between the contracting parties, which indicates their intention to pass the beneficial interest in the instrument from one to the other, is sufficient for that purpose; a debt or claim may be assigned by parol as well as by writing. 2 Sto. Eq. sec. 1047: Heath v. Hull, 4 Taunt. 326; Slaughter v. Faust, 5 Blackf. 380; Montgomery v. Dillingham, 3 Sme. & M. 647; Hastings v. McKinley, 1 E. D. Smith, 273; Clark v. Downing, ib. 406; James v. Chalmers, 5 Sand. 52.

5. In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defense, existing at the time of, or before notice of the assignment: but this section shall not apply to a negotiable promissory note, or bill of exchange, transferred in good faith, and upon good consideration before due.

1. If plaintiff was assignee in good faith, and demanded goods within a reasonable time, a notice of the assignment was not necessary to charge defendants, and if they deliver goods to an attaching creditor, it is at their own risk. Morgan v. Lowe, 5 Cal. 325.

2. The good faith of an asignment being questioned, evidence going to show a previous pledge of the fund is admissible. McEwen v. Johnson, 7 Cal. 258.

3. Where a negotiable promissory note, not yet due, is taken bona fide, as collateral security for a pre-existing debt, it is not subject to any defense existing at the date of the assignment between the original parties. Payne v. Bensley, 8 Cal. 260.

4. The possession of a bill, whether obtained before or after maturity, is prima facie evidence of ownership. 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 v. Lewis, 9 Cal. 246. 5. The assignee of a cause of action, assigned after action brought, is liable to the defendant for costs, if he (the assignee) proceed in the action after the assignment, and in such a case he takes the demand cum onere, and is liable for the costs which had accrued before, as well as those which arise after the assignment. Miller v. Franklin, 20 Wend. 630.

6. Where an insolvent having money in bank, makes an assignment for the benefit of his creditors, soon after which, but before notice, a bill held by the bank fell due and was charged in the account of the insolvent, held, that the assignee was entitled to recover it of the bank. Beckwith v. Union Bank of New York, 5 Selden, 211.

7. The admission of declarations of an assignor of a chose in action, made while he is the holder and before assignment, are evidence against his assignee, and all claiming under him. 2 Phill. Ev. (C. & H. Ed.) note 446, pp. 387, 644, 663; Brown v. Magraw, 12 Sme. & M. 267; Grand Gulf Bank v. Wood, ib. 482.

6. [1854.*] An executor or administrator, or trustee of an express

*Statutes of 1854, 84.

trust, or a person expressly authorized by statute, may sue, without joining with him the person or persons for whose benefit the action is prosecuted. A trustee of an express trust within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.

1. An attorney in fact does not hold the character of trustee, and is not a necessary party to a suit to represent the interest of a principal. Powell v. Ross, 4 Cal. 197. 2. Bonds taken in the name of the people of the state, for the benefit of others, should not necessarily be prosecuted in the name of the people, but in that of the party in interest. Baker v. Bartol, 7 Cal. 551.

3. An auctioneer doing business for others, but in his own name, is a trustee of an express trust. Minturn v. Main, 3 Seld. 220; Bogart v. O'Regan, 1 E. D. Smith, 590. 4. Also, mercantile factors or other agents. Grinnell v. Schmidt, 2 Sand. 706; 3 Code R. 19.

5. An assignee of a demand in trust to pay certain creditors of the assignor, and the balance to the assignor himself, may bring an action in the premises in his own name. Lewis v. Graham, 4 Abbott, 106.

6. An officer of a foreign corporation or company, who has authority to sue on their behalf, is a trustee of an express trust. Myers v. Machado, 6 Abbott, 198.

7. When a married woman is a party her husband shall be joined with her; except that,

1st. When the action concerns her separate property she may sue

alone.

2d. When the action is between herself and her husband she may sue or be sued alone.

1. A wife cannot sue alone to recover the homestead; it is a joint estate, and both husband and wife must join in the action. Poole v. Gerrard, 6 Cal. 71.

2. If the wife is improperly joined, it Tissot v. Throckmorton, 6 Cal. 471.

must be taken advantage of by demurrer.

3. In an action to recover real property, when the wife is the owner of the fee and the husband tenant by the courtesy initiate, the husband and wife may and should join in the action. Ingraham v. Baldwin, 12 Barb. 9.

4. The husband cannot sustain a joint action in the name of himself and wife, for both her services and his own. Avogadro v. Bull, 4 E. D. Smith, 384.

5. In an action to foreclose a mortgage executed by husband and wife on the lands of the wife, both should be sued. Conde v. Shephard, 4 How. Pr. 75; Conde v. Nelson 2 Code R. 58.

6. 1st. Sustained, as referring to property in the statute denoted separate property; it does not refer to rents accruing, etc. Snyder v. Webb, 3 Cal. 83.

7. The object is to take away the necessity of suing by prochein ami, and being a

remedial statute, must be beneficially construed. Kashaw v. Kashaw, 3 Cal. 312; McKune v. McGarvey, 6 Cal. 497; Guttman v. Scannell, 7 Cal. 455.

8. If a husband and wife be sued together, the wife may defend for her own right.

1. Where the defense of the wife is a special one, she can defend for her own right as well when sued jointly, as if the trial was separate. Duprez v. Duprez, 5 Cal. 387.

2. To enable her to defend in her own right, she must possess as defendant the rights of a femme sole, and be able to make as binding admissions in writing in the action, as other parties. Alderson v. Bell, 9 Cal. 315.

3. The wife is a proper party defendant in a suit to foreclose a mortgage executed upon premises claimed as a homestead. If not made a party, she may file a separate Moss v. Warner, 10 Cal. 296.

answer.

9. When an infant is a party, he shall appear by guardian, who may be appointed by the court in which the action is prosecuted, or by a judge thereof, or a county judge.

1. The taking judgment against an infant as for want of an answer, without appointing a guardian ad litem, is an irregularity, and the plaintiff's want of knowledge that the defendant is a minor will not serve to make the judgment regular. The judgment so taken will be set aside on motion and without imposing terms. Klock, 2 Code R. 27.

10. The guardian shall be appointed as follows:

Kellogg v.

1st. When the infant is plaintiff, upon the application of the infant, if he be of the age of fourteen years; or if under that age, upon the application of a relative or friend of the infant.

2d. When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within ten days after the service of the summons; if he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend to the infant.

1. Where the infant is plaintiff he must have a guardian appointed before the action is commenced. Hill v. Thacter, 2 Code R. 3.

11. A father, or in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a child; and a guardian for the injury or death of his ward.

12. All persons having an interest in the subject of the action, and

in obtaining the relief demanded, may be joined as plaintiffs, except when otherwise provided in this act.

1. Different persons owning separate tenements, affected by a nuisance, may join in one action to obtain an injunction to restrain the continuance of it. Peck v. Elder. 3 Sand. 126.

13. Any person may be made a defendant 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.

See sections 527, 658.

1. The plaintiff in an ejectment suit may sue one or more defendants, and they may answer separately, or demand separate verdicts. Winans v. Christy, 4 Cal. 70. 2. An appeal does not lie from an order making a new party defendant. Beck v. City of San Francisco, 4 Cal. 375.

3. This section refers to cases in equity alone. Garner v. Marshall, 9 Cal. 268. 4. Where a sheriff is liable for the trespass or misfeasance of his deputy, both may be sued jointly for such wrongful act. Waterbury v. Westervelt, 5 Selden, 598.

5. Two persons severally liable, one upon a collateral and the other upon an original undertaking, cannot be joined in one action. Phalen v. Dingee, 4 E. D. Smith, 379. 6. When several defendants are sued on a joint liability, there can only be a joint recovery and judgment; and no judgment can be entered by plaintiff, until all the defendants served have had the full time to answer. Jacques v. Greenwood, 1 Abbott, 230.

14. Of the parties to the action, those who are united in interest shall be joined as plaintiffs, or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.

1. The provisions of this section sustained. Von Schmidt v. Huntington, 1 Cal. 55 ; Bouton v. City of Brooklyn, 15 Barb. 375; Kirk v. Young, 2 Abbott, 453.

2. In an action against defendants jointly indebted, where one only is served, a several judgment may be entered against him. Hirshfield v. Franklin, 6 Cal. 607.

3. This provision is designed to provide for a class of cases which occurs in equity, and is a mere recognition of a rule administered by courts of equity, and not to break in upon any rule of the common law. Andrews v. Mokelumne Hill Co., 7 Cal. 330.

4. 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