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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 Special Term decision, and not entitled to much weight. See Western R. R. v. Nolan, 48 N. Y. 513.

2 Kimball. Noyes, 17 Wisc. 695; Sanders v. Clason, 13 Minn. 379; Meyer v. Lowell, 44 Mo. 328; Cross v. Truesdale, 28 Ind. 44; Devol v. McIntosh, 23 Ind. 529; Day r. Patterson, 18 Ind. 114; Rice v. 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.

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promise is thus made is certainly the real party in interest. The following are some examples and illustrations of this rule: Where a partnership assign their assets, and, in consideration thereof, the purchaser agrees with the members to pay all their firmdebts, any creditor of the partnership may sue him upon this undertaking, and recover the amount of the indebtedness due to the plaintiff thus suing, and may even sue him and the sureties who united with him in his undertaking to the assigning parties;2 and where many subscribers contributed different sums of money to the defendant for a specified purpose, and he entered into a written contract with three persons, whereby, among other things, he promised to repay the sums so loaned, it was held that any subscriber might sue on the agreement to recover the amount which he advanced; and where A. placed a sum of money in the hands of B., which the latter promised to pay over to C., C. may prosecute an action against B. on his promise. Where the defendant was indebted to A., who was in turn indebted to B. in a less amount, and the two former parties agreed that defendant should pay to B. the amount of the latter's demand, which should be pro tanto a payment on his own debt to A., B. was permitted to recover on this promise. If in a policy of insurance it is stipulated that the loss, if any, shall be paid to a person named not the assured, such person may sue in his own name on the policy. B. sold and delivered goods to A., and in consideration thereof A. promised to pay a certain sum to C., which was in fact the amount of a debt due from B. to C.; it was held that C. could recover upon the promise so made by A. in his behalf. Perhaps the most striking illustration of this doctrine, and of the extent to which it has been carried, is found in a class of cases where, upon a conveyance of land, the grantee assumes and promises to pay a debt which is secured by mortgage on the land so conveyed. If the grantee of land incumbered by a mortgage assumes the mortgage debt by a clause in his deed, and promises to pay the same, the creditor-mortgagee may maintain an action against this

1 Sanders v. Clason, 13 Minn. 379; Meyer. Lowell, 44 Mo. 328, and cases cited; Barlow v. Meyers, 6 N. Y. Sup. Ct. 183.

2 Kimball v. Noyes, 17 Wisc. 695; Devol v. McIntosh, 23 Ind. 529; Claflin v. Ostrom, 54 N. Y. 581, 584.

3 Rice v. Savery, 22 Iowa, 470, 477.

Dillon J. speaks of the rule as well

settled.

4 Allen v. Thomas, 3 Metc. (Ky.) 198. 5 Wiggins v. McDonald, 18 Cal. 126. 6 Cone v. Niagara Fire Ins. Co., 3 N. Y. Sup. Ct. 33, 39; Newman v. Springfield Ins. Co., 17 Minn. 123, 126.

7 Hall v. Roberts, 61 Barb. 33.

grantee upon the bond or other evidence of the indebtedness, and recover the amount thereof, and is not restricted to the remedy by foreclosure of the mortgage; and the creditor may thus sue the grantee upon the bond, even though that instrument had expressly provided that the mortgagee should first have recourse on the land, and the obligor should only be liable for the deficiency which might arise after the foreclosure; this stipulation, it was held, protected the obligor personally, and could not be taken advantage of by the grantee who had promised to pay the debt. The result of these and other decisions is, that the third person, for whose benefit an undertaking is entered into between other parties, may sue upon it, although such undertaking is an instrument in writing and under seal. This doctrine is plainly a departure from the technical notions of the common law, which did not permit a person to sue upon a contract unless he was a party to it, or unless the consideration moved from him, and which especially forbade an action upon a sealed undertaking by a stranger. The courts of some States adhere strictly to this old notion, and utterly repudiate the innovation.4 The new rule, however, is as convenient as it is just. The objections to it are every way technical and arbitrary, a repetition of verbal formulas without any convincing reasons. It certainly avoids a circuity of actions, and it enables the only person beneficially interested in the promise the real party in interest to come into court in the first instance and establish his rights, without being driven to enforce them in a roundabout manner through the intervention of a third person, who, if successful, must account to him for the proceeds of the litigation. The true extent and application of the doctrine, and the proper limitations upon it, have been discussed and fixed by the New York Court of Appeals in very recent cases."

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1 Lawrence v. Fox, 20 N. Y. 268; Burr Keyes, 525; Claflin v. Ostrom, 54 N. Y. r. Beers, 24 N. Y. 178. 581, 584; Glen v. Hope Ins. Co., 56 N. Y.

2 Thorp v. Keokuk Coal Co., 48 N. Y. 379, 381; McDowell v. Laev, 35 Wisc. 171. 253.

3 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; Lawrence v. Fox, 20 N. Y. 268; Burr v. Beers, 24 N. Y. 178; Thorp . Keokuk Coal Co., 48 N. Y. 253; Kimball . Noyes, 17 Wisc. 695; Devol v. McIntosh, 23 Ind. 529; Barker v. Bradley, 42 N. Y. 316, 319; Secor v. Lord, 3

4 Exchange Bank v. Rice, 107 Mass. 37, per Gray J.

5 Garnsey v. Rogers, 47 N. Y. 233, 240, per Rapallo J.; Merrill v. Green, 55 N. Y. 270, 273; Turk v. Ridge, 41 N. Y. 201, 206. See also Hinman v. Bowen, 5 N. Y. Sup. Ct. 234, which holds that a defence, good as against the immediate promisee, is also available against the beneficiary. Phillips v. Van Schaick, 37 Iowa, 229.

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§ 140. Upon the same principle, the equitable owner of a promissory note is the real party in interest within the statute, and is the proper person to sue upon it, although there may be no indorsement; and possession of the instrument is prima facie evidence of such ownership. In fact, wherever the spirit of the reformed system is carried out, and this is now very generally, if not universally, the case, the equity rule as to parties is freely applied to all legal actions, and this one principle will easily solve all particular cases of difficulty or doubt.2 But, as has been shown in preceding paragraphs, the law as to commercial paper has not been changed in several of the States by this provision of the statute in reference to the parties plaintiff'; and in those States, therefore, the indorsee, and, a fortiori, the payee of a negotiable note or bill may maintain an action upon it, even though there may be relations between himself and third persons which give them a right of action over against him for the proceeds. As, for example, if A., having in his hands money belonging to B., should loan it, and take a note from the borrower payable to himself, he could sue upon it; however much B. might have been interested in the original money, and however valid a demand he may have against A., he is not a party to the note, nor the holder of it. In the class of cases already mentioned, where an express contract is made with one for the benefit of another, and the person thus beneficially interested is permitted to sue in his own name, the one to whom the promise was expressly given may, in general, also maintain an action. The promise being actually made to him, and the consideration moving from him, he

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2 Conyngham v. Smith, 16 Iowa, 471; Tate v. Ohio, &c. R. R., 10 Ind. 174; Swift . Ellsworth, 10 Ind. 205. In the first of these cases, Wright C. J., describing the effect of the Code of Procedure, said (p. 475): "If the cause of action is cognizable at law, the party having the real interest therein is to be heard in that form, if equitable, in equity. His proceeding, in other words, is to be 'ordinary' or 'equitable,' according to the nature of the cause of action. And the

question is determined, not so much by the evidence showing the interest, as by the fact that he is the real party in interest, and has for his cause of action a subjectmatter of which the law will take cognizance. In other words, the equity rule as to parties is now applied to law actions, if the relief asked may be given in that court. And therefore, if the plaintiff is the real owner of this bond, if it has been actually sold and transferred to him by a valid verbal contract, there is no reason why, under our system of pleading and practice, he may not maintain his action in manner and form as stated in his petition."

8 Robbins v. Cheek, 32 Ind. 328; Robbins v. Dishon, 19 Ind. 204.

is legally the contracting party, and is clothed with the legal right; indeed, he falls under the definition of trustee of an express trust given in another section of the codes.1

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§ 141. The following are additional examples of actions maintained by the real party in interest, and in which the equity doctrine on this subject has been freely applied, although the rights to be protected and the remedies to be obtained were legal. After a judgment had been obtained in an action of ejectment prosecuted according to the old form by John Doe as the fictitious plaintiff, the succeeding action to recover the mesne profits of the land should be brought in the name of the actual owner of the fee, the lessors of the plaintiff in the ejectment, they being the real parties in interest.2 An undertaking given to the sheriff by the defendant in an action for the recovery of chattels, in order to procure a return of the goods, should be prosecuted by the plaintiff in that action, since he is the real party in interest; 3 and it is said to be a general rule in Iowa that when a bond or undertaking is given to an officer, in the course of some judicial proceeding, for the security of any particular person, such person may sue upon it in his own name without the formality of an assignment. If a levy by virtue of an execution is made upon chattels by a deputy sheriff, and the goods are wrongfully taken from his possession, an action against the wrong-doer should be brought by the sheriff; he is the real party in interest, since the deputy sheriff acted simply as his agent. An injunction bond having been given to two obligees, defendants in the action, one of them only was injuriously affected by the injunction and suffered any damage therefrom; he alone, it was held, could maintain an action on the undertaking, as he was the only party in interest, and a suit in the names of both united as plaintiffs was

See Rice v. Savery, 22 Iowa, 470, 477; Cottle v. Cole, 20 Iowa, 481, 485. In the former of these cases, Dillon J. said: "If the promise is made for the benefit of another, who is the real party in interest, the latter may sue, though the contract was made to an agent or trustee; or the agent or trustee, or person in whose name a contract is made for the benefit of another, may sue without joining the party for whose benefit the suit is prose

cuted." This subject is treated at large in a subsequent section.

2 Masterton v. Hagan, 17 B. Mon. 325. It must be understood that the new system had gone into effect after the commencement of the ejectment, and before that of the second action for mesne profits.

3 McBeth v. Van Sickle, 6 Nev. 134.
4 Moorman v. Collier, 32 Iowa, 138.
5 Terwilliger v. Wheeler, 35 Barb. 620.

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