§ 69, p. 65.

Under our present system, every action is an action on the case, per Gridley, J., in Minor v. Terry, 6 Pr. R., 208; and this dictum was approved by Harris, J., in Field v. Morse, 7 Pr. R., 13.

§ 71, p. 67.

Burrough v. Hull & Smith (not reported), decided by Justice Roosevelt at a special term of the supreme court, was an action on a judgment rendered before the code went into effect. The action had been commenced without leave of the court previously obtained, and on that ground motion was made to set aside the summons and complaint. Judge Roosevelt said:

"The 8th section of the code declares that the second part (embracing section 71) relates to civil actions commenced after 1st July, 1848, except when otherwise provided therein. By the 459th section, as amended in 1851, it was declared that the provisions of the code should apply, among other things, to future proceedings in actions heretofore commenced, after a judgment, to enforce such judgment. Whether, therefore, the summons and complaint in this case be considered strictly as an action on a judgment, or, more liberally, as a proceeding to enforce a judgment, in either view it comes within the code. It is a proceeding, in the form of an action to enforce a judgment. The great object of the amendment of 1851 was to terminate, as soon as possible, the necessity of studying and retaining two different systems of procedure, by applying the provisions of the code to every case in which they were applicable without doing injustice to vested, or seemingly vested, rights. The evil of accumulating costs by piling judgment upon judgment, was as great in the case of antecedent as in the case of subsequent judgments; and no reason can be assigned for restraining the practice in the one case, which is not equally cogent in the other. The ordinary and, in ninety-nine cases out of a hundred, the proper mode of collecting a debt which already is in judgment, is by issuing an execution directing the sheriff to levy the amount adjudged to be due out of the debtor's property. Where, however, circumstances have occurred since the judgment was ordered, such, for example, as a discharge in bankruptcy, or a release by act of the creditor, or a constructive payment, about the truth or effect of which circumstances a

dispute exists, a formal action to try the newly-arisen issues would not only be proper, but perhaps necessary; and the court, on application and notice, would readily grant the desired leave to bring such action. In the present instance, leave, it appears, was applied for, and, under a misapprehension was refused as unnecessary. The case, unless some new facts altering its present aspect can be presented, is a proper one for an action-a disputed discharge in bankruptcy is set up as cancelling the effect of the antecedent judgment. Leave, therefore, must be granted nunc pro tunc, and the summons and complaint retained, unless the defendants, in eight days after service of a copy of this order, shall show good cause to the contrary, giving four days' notice of their intention so to do."

§ 72, p. 68.

A feigned issue should not be directed on a motion to set aside a judgment, where the notice of motion merely asks (in addition to the principal relief) for, "such further or other relief as the court may grant." Mann v. Brooks, 7 Pr. R. 449.

§ 91, p. 74.

A person intrusted by the owner with a note against a third party for collection, who receives the money and neglects to pay it over, does not stand in the relation of trustee, so as to deprive him of the benefit of the statute of limitations. Hickok v. Hickok, 13 Barb., S. C. R., 632.

§ 111, pp. 81-84.

"The only change made by the code in respect to the transfer of a thing in action, is to transfer with the beneficial interest the right of action also in those cases where, before the code, a court [of equity] would recognize and protect the rights of the assignee. No new right of action is created; no authority is given to assign a right of action which before was not assignable. When the right of action is of such a nature as not to be the subject of a contract, as in the case of a violation of personal or relative rights, it cannot be assigned. The action can

only be maintained by the party who has been injured, and when he dies the right of action also dies. Every right of action involving life, health, or reputation, belongs to this class. So a right of action founded upon a breach of promise of marriage, being in its nature a personal injury, cannot be transferred. On the other hand, where the injury affects the estate rather than the person, where the action is brought for damage to the estate, and not for personal suffering, the right of action may be bought and sold. Such a right of action, upon the death, bankruptcy, or insolvency of the party injured, passes to the executor or assignee as part of his assets; because it affects his estate, and not his personal or relative rights. Of course, such a right of action is assignable; and, under the provisions of the code, the assignee is the proper party to maintain the action." Per Harris, J., in Hodgman v. Western R. R. Corporation, 7 Pr. R. 493.

A right of action for personal injury received by collision of cars upon a railroad, is not assignable. Ib.

"Since the adoption of the revised statutes, maintenance has not, under our laws, been recognized as an offence; and champerty only remains an offence in a qualified form. (Mott v. Small, 20 Wend. 221, 2; 22 Wend., 405, S. C.; 2 R. S., 691, §§ 5, 6, 7, 8; 1 R. S. 739, 148; 3 R. S., Appendix, 828, Notes of Revisors, 2d ed.; 3 Cow. 643 to 649; 4 Wend., 310.) The statutory prohibition against buying a disputed title, is confined to real estate which is the subject of controversy by suit, or which is not in the possession of the vendor. (2 R. S., 691, §§ 5, 6, 1st ed.) All choses in action embracing demands. which are considered as matters of property or estate, are now assignable either at law or in equity. Nothing is excluded but mere personal torts which die with the party. A claim, therefore, for property fraudulently or tortiously taken or received, or wrongfully withheld, and even for an injury to either real or personal property, may be assigned. (People v. Tioga Common Pleas, 19 Wend. 73.)" Per Paige, J., in Hoyt v. Thompson, 1 Selden, 347.

The presumption of law, that the holder of a promissory note is its owner, is not repelled by showing that it came into his hands after it was due. James v. Chalmers, 5 Sand. S. C. R., 52.

Proof of a valuable consideration is only necessary to be made when a defence is set up which, unless the plaintiff was a purchaser for value and without notice, would conclude him. Ib.

In all other cases a plaintiff who sues as indorsee of a note, and proves his title as such, is to be deemed the real party in interest under section 111 of the code. Ib.

These points were assented to by all the justices of the superior court; Brisbane v. Pratt, 4 Denio, 63, is not to be construed as sanctioning an opposite doctrine. Ib.

It is believed that the supreme court has made some exception to this rule in the case of an attorney at law suing as indorsee of a negotiable instrument; and that in such a case the plaintiff besides the production of the instrument, should give some evidence of his being the holder as owner, and not in his capacity of attorney-sed quære.

It is supposed that the code has not abrogated the following provisions of the Revised Statutes: (2 R. S. 4 ed. 474; but see note to section 303 of the code.)

SEC. 58. [71.] No attorney, counsellor, or solicitor, shall directly or indirectly buy, or be in any manner interested in buying, any bond, bill, promissory note, bill of exchange, book debt, or other thing in action, with the intent and for the purpose of bringing any suit thereon.

SEC. 59. [72.] No attorney, counsellor, or solicitor, by himself, or by or in the name of any other person, either before or after suit brought, shall lend or advance, or agree to lend or advance, or procure to be lent or advanced, any money, or any bond, bill of exchange, draft, or other thing in action, to any person as an inducement to the placing or in consideration of having placed in the hands of such attorney, counsellor, or solicitor, or in the hands of any other person, any debt, demand, or thing in action, for collection.

SEC. 60. [73.] Every attorney, counsellor, or solicitor, who shall violate either of the two last-preceding sections shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by fine or imprisonment, or both; and he shall also be removed from office in the

several courts in which he is licensed.

SEC. 61. [74.] Nothing contained in either of the three last-preceding sections shall be construed to prohibit the receiving in payment by any attorney, counsellor, or solicitor, any bond, bill, promissory note, bill of exchange, book debt, or other thing in action, for any estate, real or personal, or for services actually rendered, or for a debt antecedently contracted; or from buying or receiving any bill of exchange, draft, or other thing in action, for the purpose of remittance, and without any intent to violate either of the said three last sections.

SEC. 62. [75.] The defendant in any suit to be brought in any action of debt, covenant, or assumpsit, may give notice with his plea, in addition to any other matter of defence, that on the trial of the cause he

will insist and prove that the demand on which such action is founded, has been bought and sold, or received for prosecution contrary to law, without setting forth any other particulars.

SEC. 63. [76.] On the trial of the cause in which such notice shall have been given, if the defendant shall require it, the plaintiff and his attorney and counsel, and any other person who may be interested in the recovery in such cause, shall be examined on oath touching the matters set forth in such notice.

SEC. 64. [77.] The defendant who shall have given such notice may apply either to a judge of the court in which such cause shall be pending, or to some officer authorized to exercise the power of a justice of the supreme court at chambers, for an order that the plaintiff attend on the trial of the said cause, to be examined as aforesaid.

SEC. 65. [78.] Such order shall be granted upon an affidavit of the defendant, stating that he believes he has a defence under the provisions of this article [Art. 3, tit. 2, cap. 3 of part 3], that he believes he can establish such defence by the testimony of the plaintiff, and that such plaintiff resides within this State.

SEC. 66. [79.] Such order shall be served on the plaintiff, or his attorney, at the time of serving a plea tendering an issue in the cause; and it shall be the duty of the plaintiff to attend the trial pursuant to such order, to be examined as above provided. For such attendance, the plaintiff shall be entitled to the like fees as are allowed to a witness.

SEC. 67. [80.] In case such plaintiff shall not attend such trial, he shall, on proof of the due service of the order, be nonsuited in such action, unless such failure to attend shall be accounted for to the satisfaction of the court; in which case the court may postpone the trial until its next sitting, on payment by the plaintiff of the costs of the defendant in preparing for trial, and on such plaintiff entering into a stipulation to try the said cause at the next sitting of such court, and then to attend such trial. And if such plaintiff shall not then attend, he shall be nonsuited in such action.

SEC. 68. [81.] If any such plaintiff so required to be examined, or if any other person being interested in the recovery of the suit, shall refuse to answer on oath such questions as shall be pertinent to show a violation of the provisions of this article; or if on such examination, it shall appear that the cause of action on which such suit is pended, has been bought or procured contrary to the true intent of the provisions of this article, the plaintiff in such action shall be nonsuited.

SEC. 69. [82.] No evidence derived from any such attorney, soli