representatives of the deceased wrong-doers;186 also, more recently, that a false representation to a military officer, which caused the arrest of the plaintiff, furnished a cause of action that did not abate by the death of the plaintiff.187 In Kansas a demand against the defendant for tortiously obtaining illegal fees had been assigned to the plaintiff, and he was permitted to sue in his own name, for the reason that the right of action would not die with the party, inasmuch as the fraud affected the estate of the person wronged."

188

§ 44. When does a Claim for a personal Injury become a Debt?

ly. 189

A judgment, upon whatever founded, is everywhere regarded as a debt which does not abate by death, and which is transferable like an ordinary contract. But the character of the demand is not changed until judgment, and an action based upon a cause of action which would not survive will abate by death during any step of the proceeding, and the demand cannot be assigned after verdict mereBy the English practice, motions for a new trial or in arrest are disposed of before the rendition of judgment, and such is the logic of our own practice, for it is the object of such motions to prevent the entry of judgment. But in many of the states the practice is to enter judgment upon the verdict at once, and the effect of these motions is to suspend the judgment until they are disposed of. In such states the courts are disposed to treat the judgment as a subsisting debt, notwithstanding the motion; and in others, if the judgment has been prevented by a motion not disposed of at the

186 White's Heirs v. Turner, 1 B. Mon. 130. 187 Huggins v. Toler, 1 Bush, 192.

188 Steward v. Balderston, 10 Kan. 131.

189 LAWRENCE v. MARTIN, 22 Cal. 173. A report of referees upon a submission in an action for seduction has the force of a verdict; but the demand does not become a debt until judgment, and hence is not discharged by bankruptcy when the petition was made after the report, but before the judgment. Crouch v. Gridley, 6 Hill, 250. To the same effect as to a verdict for breach of promise of marriage is In re Charles, 14 East, 197; and, as to a verdict for trespass, is Kellogg v. Schuyler, 2 Denio, 73; [HUNT v. CONRAD, 47 Minn. 557, 50 N. W. 614.]

term, and in the meantime a party dies, so that the action would abate, judgment, if the motion be overruled, will be entered nunc pro tunc as of the term when the verdict is obtained.190 In some states, as in Wisconsin,191 the statute provides that, after verdict, no action shall abate by death.

190 In Dial v. Holter, 6 Ohio St. 228, a verdict had been obtained, upon which judgment was entered. A motion for a new trial was filed, and the judgment was reversed upon error, but for irregularities subsequent to, and which did not affect, the verdict. Three years after the verdict the case came up for final judgment; but in the meantime the defendant had died. and the cause of action was such as to abate by death. But the court would not let the plaintiff suffer by the delay, and entered judgment nunc pro tune. Held, in Collins v. Prentice, 15 Conn. 423, that if the defendant dies pending a motion for a new trial, the court, upon overruling it, may enter judgment nunc pro tunc; and the same view is taken in Ryghtmyer v. Durham, 12 Wend. 245. In Turner's Adm'r v. Booker, 2 Dana, 334, a judgment had been taken by default for assault and battery, and damages assessed. Held, that the judgment was not vacated by a motion for a new trial, and that the action would not abate by the death of the plaintiff pending the motion.

191 Rev. St. 1878, § 2809.

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2.

CHAPTER IV.

OF PARTIES TO ACTIONS, CONTINUED.

Parties Plaintiff in Actions founded on Contract.

Section 45. In Actions by Assignees, the equitable Rule adopted.

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46. The Exceptions.

47. What Contracts are assignable.

48. Contracts not assignable.

49. Indorsements and Assignments by Executors and Administrators. 50. The Mode of Assignment.

51. Indorsements and Assignments without actual Sale.

52. Who may be Plaintiffs other than Parties in Interest.

53. 1. Actions by Executors and Administrators.

54. 2. Actions by Trustees of an express Trust.

55. 3. By Persons with whom, or in whose Name, a Contract is made 1or the Benefit of another.

56. 3. Continued-An agent merely, not authorized to sue.

57. 3. Continued-Cases when the Representative may sue in his own Name.

58. 3. Continued-May the Beneficiary also sue?

59. 3. Continued-No change made by this limitation.
59a. As to contracts in which an agent has an interest.
60. 4. By Persons expressly authorized by Statute.
61. Joinder of Plaintiffs-The general Rule.

62. Joinder of Plaintiffs in Common-law Proceedings.

63. Whether the Right is joint or several.

64. Assignment of joint Rights.

65. Parties in partial Assignments.

65a. Same-In a partial assignment by a joint obligee.

65b. Continued-In case of insolvency of partner.

65c. Ordinary assignments by co-obligees.

66. How should joint Obligees assign.

67. As to Joinder by Tenants in Common in actions for Rent.
Continued.

68.

69.

Continued-Parties under the Code.

70. Joinder in Actions by Distributees and Legatees.

71. Parties in Actions concerning the separate Property of married

Women,

§ 45. In Actions by Assignees, the equitable Rule adopted.

As between the original parties to a contract, when acting in their own right, no difficulty will arise as to who should be the plaintiff, nor is the rule changed by the Code. But in actions formerly called legal, founded upon contract where the contract has been assigned, the rule adopted by the Code is the one that prevails and has always prevailed in equity.

Except as to negotiable paper, it is necessary, in common-law pleadings, to prosecute in the name of the original obligee or payee, and, "in general, the action upon a contract, whether express or implied, or whether by parol, or under seal, or of record, must be brought in the name of the party in whom the legal interest in such contract was vested." The ore holding such legal interest in a contract is the person to whom the promise was made, and from whom the consideration passed, and he must bring the action.2 In negotiable instruments the indorsee if payable to order, or the holder merely if payable to bearer, has by the terms of the instrument, the legal interest, and can bring the action in his own name; but at common-law in respect to other agreements, if a third person becomes an owner by assignment, there is no privity between him and the promisor, and if he would enforce the contract he must do it in the name of the original promisee; the assignee is called the equitable owner, and if named in the record, he is described as the person for whose use the action is brought.

Under the new system the rule is adopted which prevails in equity, and which requires, with certain exceptions named [below], that actions be prosecuted in the name of the real party in interest. In

11 Chit. Pl. 2.

2 Hall. v. Huntoon, 17 Vt. 244.

[This raises the question, who is the "real party in interest"? The "real party in interest" is the party who is to be benefited or injured by the judgment in the case. It will be observed that the rule provides the action muşt be prosecuted in the name of the real party in interest, and of course if the defense can show that the plaintiff or plaintiffs are not the real parties in interest the action must fail. Eaton v. Alger, 57 Barb. 179, 189; Hereth v. Smith, 33 Ind. 514; Cottle v. Cole, 20 Iowa, 481; Minnesota Thresher Manuf'g Co. v. Heipler, 49 Minn. 395, 52 N. W. 33; Young v. Hudson, 99 Mo. 102, 12 S. W.

general, then, if a contract, or a right of action arising either from contract or from a tort which is capable of assignment, be assigned or transferred, the action, whatever its nature, must be brought in the name of the assignee or transferee as the real party in interest.

$46. The Exceptions.

But if the requirement were imperative that those must sue, and only those, who have the real, the beneficial, interest in the contract to be enforced, or in the relief to be sought, great inconvenience would often arise, and representative and express trusts might be practically destroyed. A factor doing business in his own name, in a single transaction transfers property in the sale of which many of his correspondents may be beneficially interested, and possesses, also, himself, an interest to the extent of his commissions, and as guaranteeing payment. He might find it very inconvenient to himself, and make it oppressive to a defendant, if compelled to split up his cause of action and bring separate actions in the name of each of his correspondents according to their several interests in the subject of the action. So, an administrator has less interest in collecting the assets of the deceased than the creditor or the distributee, yet he, of necessity, must bring the action; and in case of many express trusts, where property has been placed in the hands of one to be held and used for the benefit of another, if the beneficiary, who is the real party in interest, could bring ordinary suits in

632; McPherson v. Weston, 64 Cal. 275, 30 Pac. 842; Swift v. Ellsworth, 10 Ind. 205; Bartholomew Co. Com'rs v. Jameson, 86 Ind. 154. In Eaton v. Alger, supra, the judge says: "The law of this state no longer permits actions to be prosecuted in the name of nominal plaintiffs. The moment that fact appears the action is ended, no matter what the character of the instrument on which it is founded, whether negotiable or not, whether the defendant has or has not any defense to the indebtedness." See White v. Miners' Nat. Bank, 102 U. S. 658, where it is held that an indorsee "for collection" only cannot sue in his own name. Contra, Hardin v. Helton, 50 Ind. 319. See following cases as to what interest will support an action: Emmitt v. Brophy, 42 Ohio St. 82; Rice v. Savery, 22 Iowa, 470; Blanchard v. Page, 8 Gray, 281; Murray v. Warner, 55 N. H. 548; Adams v. O'Connor, 100 Mass. 515; Stafford v. Walter, 67 Ill. 84; Phoenix Ins. Co. v. Mitchell, Id. 43; Mizner v. Frazier, 40 Mich. 592.]