sustaining this doctrine, there are still some indications of a different opinion, although it can hardly be said that this difference has been embodied in an adjudication as the ratio decidendi. The opinion to which I refer will be found at large in the note, as it is an able argument upon that side of the question.1 Embraced within the same principle, and governed by the same rule, is the case of an assignee of a thing in action who, by the terms of the transfer, is not bound to pay the consideration thereof until the ... Iowa, 481; Curtis v. Mohr, 18 Wis. 615; Hilton v. Waring, 7 Wis. 492 (assignment as collateral security); Wilson v. Clark, 11 Ind. 385; Gradwohl v. Harris, 29 Cal. 150. In Castner v. Cook the notes in suit, which were for $3,100, were assigned as security for $1,500, owing by the payee to the plaintiff, the latter giving back a bond to pay over the balance after satisfying his own demand. Upon these facts, the court, per Atwater J., said: "There may be a question as to whether the assignment of the notes was absolute, or whether a contingent interest remained in the assignor. But in either case the action is properly brought in the name of the plaintiff.. The plaintiff was to receive the money; and, if authorized to receive it, the right to bring suit to collect it necessarily follows. Whatever may be the relations of the plaintiff to the assignor can make no difference to the defend. ants. They can only raise the objection of a defect of parties to the suit, when it appears that some other person or party than the plaintiff has such a legal interest in the note that a recovery by the plaintiff would not preclude its being enforced, and they be thereby subjected to the risk of another suit for the same subject-matter. Wilson [the assignor] had no such interest. He had no interest in the notes, and not even a certain resulting interest in the proceeds of the notes." In Williams v. Norton a note payable to the order of the payee had been verbally transferred and delivered to the plaintiff without indorsement. The action by such assignee was held to be properly brought, even though he may not be entitled to apply to his own use the whole proceeds. A delivery by the payee to his surety or indemnitor, with authority to receive the money and pay the principal debt, will enable the surety to sue in his own name. He will, within the meaning of the code, be the real party in interest." 1 Robins v. Deverill, 20 Wis. 142. The plaintiff sues as assignee of Peet & Williams. Dixon C. J. gave the following opinion (p. 148): The statute is imperative that every action must be prosecuted in the name of the real party in interest, except as therein otherwise provided. The proof is that the plaintiff is not the owner of the demand sued upon. It belongs to the firm of R. & L., composed of the plaintiff, his brother, and one Lewis. The demand was transferred to the plaintiff alone by words of absolute assignment, no trust being expressed; but, as the plaintiff himselt testifies, he holds it nevertheless in trust for his firm. It was received on account of a debt due the firm of R. & L. from P. & W. Upon these facts, it seems to me the plaintiff cannot maintain the action. He is not the real party in interest, nor the trustee of an express trust within the meaning of the statute. His brother and Lewis should have been joined as plaintiffs." After describing the requisites necessary to constitute a trustee of an express trust, the judge concludes: "In this case no agreement is shown that the plaintiff was to take or hold as trustee; and that he is a trustee results only from other circumstances. It is implied from the facts of the partnership, and that the plaintiff received the assignment on account of a debt due the firm." The court refused to pass upon these questions, holding that they were not raised by the pleadings in the cause; that a defect of parties (if any) had been waived. debt has been collected; he is the real party in interest, and is fully authorized to sue in his own name.1 § 133. The following are particular cases in which the assignee was held by the courts to be the real party in interest within the meaning of the codes, and entitled as such to sue in his own name: Where a bond or a mortgage was assigned verbally; 2 the assignment of a receipt and delivery order, which was in the following words: "1000 bushels of corn. Received in store, on account of S. F. A., 1000 bushels of corn, to be delivered to his order at, etc. etc. (signed) W. H. H.; "3 assignment of a promissory note payable to order without any indorsement; 4 the assignment of a debt evidenced by a lost note; where the assignment of a bond or note was by means of a separate instrument in writing; the assignment of a claim arising from an agreement to pay the defendant in a certain pending suit a stipulated sum of money if he would withdraw his defence; the assignment of a claim for damages resulting from the wrongful conversion of chattels; the assignment by a widow of her right of dower after the death of her husband, but before the dower had been set apart to her. The mere parting with the possession of a note does not, however, constitute an assignment thereof, and the owner is the proper party to sue, although the instrument is in the hands of another person with whom it has been deposited.10 The assignee of a foreign executor or administrator may 1 Cummings v. Morris, 25 N. Y. 625; &. c. 3 Bosw. 560. 'In delivering the judgment of the Court of Appeals, Allen J. said (p. 627): "The object of the provision (§ 111) was to abolish the distinction between the former practice of courts of chancery and of common law, and to give full effect at law, as well as in equity, to assignments of rights in action, by permitting and requiring the assignee to sue in his own name. If between the assignor and the assignee the transfer is complete, so that the former is divested of all control and right to the cause of action, and the latter is entitled to control it and receive its fruits, the assignee is the real party in interest, whether the assignment was with or without consideration, and notwithstanding the assignee may have taken it subject to all equities between the assignor and third persons." 2 Conyngham v. Smith, 16 Iowa, 471; Barthol v. Blakin, 34 Iowa, 452; Green v. Marble, 37 Iowa, 95; Andrews v. McDaniel, 68 N. C. 385. 3 Merchants and Mechanics Bank v. Hewitt, 3 Iowa, 93. 4 Carpenter v. Miles, 17 B. Mon. 598; White v. Phelps, 14 Minn. 27; Pease v. Rush, 2 Minn. 107; Pearson v. Cummings, 28 Iowa, 344; Hancock v. Ritchie, 11 Ind. 48. Long v. Constant, 19 Mo. 320. 6 Thornton v. Crowther, 24 Mo. 164; Peters v. St. Louis, &c., R. R., 24 Mo. 586. 7 Gray v. Garrison, 9 Cal. 325. 8 Smith v. Kennett, 18 Mo. 154; Lazard v. Wheeler, 22 Cal. 139. In this last case, an action by the assignee to recover possession of the chattels was sustained. 9 Strong v. Clem, 12 Ind. 37. 10 Selden v. Pringle, 17 Barb. 458. maintain an action in his own name to recover a debt due to the estate from a person residing within the State in which the suit is brought. Upon the same principle, when a demand not arising within the State, in favor of one foreign corporation against another foreign corporation, is assigned to a resident of the State, such assignee may maintain an action upon it against the debtor corporation, although the original creditor is expressly forbidden by statute to sue under such circumstances. The prohibition of an action between the foreign corporations does not affect the assignability of the claim.2 § 134. The assignee of a judgment recovered by the defendant in an action brought to recover the possession of chattels may sue in his own name upon a bond given by the plaintiff upon the requisition made for a delivery of the goods to him. The assignment of the judgment carries with it all demands arising upon this bond or undertaking, and the assignee is the real party in interest. In like manner, the assignee of a judgment recovered against a sheriff for official misconduct in seizing the plaintiff's property may bring an action in his own name upon the sheriff's bond. The principle may be stated more broadly. The assignee of any claim or demand may, in general, sue in his own name upon any incidental or collateral security connected with the demand, and by means of which its payment or satisfaction can be enforced. Thus, the assignee of a judgment obtained in a garnishee process may maintain an action in his own name against the garnishees; the assignee of the cause of action in a pending litigation may sue on an appeal bond given to the plaintiff [the assignor] in the course of the proceedings. The assignee of a reversion and also of the covenants contained in the lease is the proper party to bring an action to recover damages arising from a breach of such covenants. 5 1 Petersen v. Chemical Bank, 32 N. Y. 21. The decision turned largely upon the law as to foreign administrators and successions. In reference to the questions now under consideration, Denio J. said (p. 45): "The law of maintenance prohibited the transfer of the legal property in a chose in action so as to give the assignee a right of action in his own name. But this is now abrogated; and such a demand as that asserted against the defendant in this suit may be sold and conveyed so as to vest in the purchaser all When a surviving partner assigns the legal as well as the equitable rights of the original creditor." 2 McBride v. Farmers Bank, 26 N. Y. 450, 457. 8 Bowdoin v. Coleman, 3 Abb. Pr. 431. 4 Charles v. Haskins, 11 Iowa, 329. 5 Whitman v. Keith, 1 Ohio St. 134. In this case, Mr. Justice Scott gives a very full and clear exposition of the stat utory provision under consideration. 6 Bennett v. McGrade, 15 Minn. 182. 7 Masury v. Southworth, 9 Ohio St. 340. Gholson J., after stating that the things in action which belonged to the firm, the assignee succeeds to his rights, and must sue in his own name to collect the same.1 § 135. In Kentucky, if the assignment is equitable, which is defined to be an assignment not expressly authorized by statute to be made, although the assignee must sue in his own name, the assignor must also be joined as a party plaintiff or defendant; 2 as, for example,,when an execution is assigned, or a lease. In certain States, where the thing in action is not negotiable, or assignable by indorsement, the assignor may be joined as a defendant to answer to his interest and to the assignment.5 In other States, however, where similar provisions are not found in the codes or practice acts, the rule is entirely different, and the assignor is not a proper party either plaintiff or defendant. Thus, in Ohio, an assignor having been made a defendant under the general provisions of the code relating to the joinder of parties plaintiff and defendant, it was held that he neither had an interest in the controversy adverse to the plaintiff, nor was he a necessary party to a complete determination or settlement of the questions involved therein, and therefore he had been improperly made a defendant." This is undoubtedly the rule in all the States whose codes do not contain the special provision permitting or requiring the joinder of assignors in order to answer to the assignment. And even though he may retain some residuary, contingent, or equitable interest, the assignor is not the proper party to sue; the legal title is not only in the assignee, but he is entitled to receive all the proceeds of the recovery, and whatever possibilities the assignor may have, he is not the real party in interest.7 statute of 32 Henry VIII. c. 34, allowing Roys v. Vilas, 18 Wisc. 169. 3 Watson v. Gabby, 18 B. Mon. 658, 665. 4 Hicks v. Doty, 4 Bush, 420. By 1 R. S. ch. 22, § 6, "all bonds, bills, or notes for money or property shall be assignable so as to vest the right of action in the assignee." 5 Code of Indiana, § 6. 6 Allen v. Miller, 11 Ohio St. 374. 7 Smith v. Chicago & N. W. R. R., 23 Wisc. 267, where it appeared that in proceedings supplementary to execution, before instituted against the plaintiff in another State, the demand in suit had been assigned to a receiver; this was held a complete defence. § 136. The thing in action may even be assigned while a suit upon it is pending, and, by the express provisions of the statute, the assignee may either be substituted as plaintiff, or the suit may be carried on to its termination in the name of the original party. Such substitution, when made, is not the bringing of a new action, and does not require a supplemental complaint. If an assignee carries on a suit in the name of the assignor, he must show affirmatively that the transfer was made pendente lite.1 § 137. It has been decided in some cases that the assignment of part of an entire claim does not enable the assignee to sue in his own name, but that the assignor must still sue for the whole demand. This rule is based upon the old doctrine of the indivisibility in law of an entire thing in action. Other cases hold that such an assignment conveys an equitable interest, and makes the assignee an equitable owner, so that he may sustain an action. brought in his own name, although the assignors may, upon their own application, be allowed to intervene, in order to protect their interests. The grantee of land cannot sue in his own name to recover damages for the breach of covenants in the deed to his grantor which do not run with the land, unless the covenants themselves have also been assigned, but the grantor is the proper party; as, for example, the grantee cannot sue upon a covenant of seisin in the deed to his grantor, in those States where that covenant is regarded as broken immediately, if at all, upon the execution of the deed, and as not running with the land.1 § 138. It is no longer, consistently with the provisions of the codes, possible for one person to sue "to the use of" another, as was common in some States. The parties beneficially interested must themselves bring the action. There are cases which hold that when there is a trustee of an express trust, he must bring the action, and that the beneficiary can in no such case sue in his 1 St. Anthony Mill Co. v. Vandall, 1 Minn. 246; Virgin v. Brubaker, 4 Nev. 31; Warner v. Turner, 18 B. Mon. 758. 2 Cable c. St. Louis Marine Railway Co., 21 Mo. 133, Leese v. Sherwood, 21 Cal. 151. See Lapping v. Duffy, 47 Ind. 56; Boyle v. Robbins, 71 N. C. 130. 3 Grain v. Aldrich, 38 Cal. 514; Wiggins v. McDonald, 18 Cal. 126. 4 Hall v. Plaine, 14 Ohio St. 417. Under the peculiar circumstances of this case, the court held that the grantee might sue, because he was the real owner of the land, even when in the hands of his grantor; but the general doctrine of the text was affirmed. 5 Weise v. Gerner, 42 Mo. 527; Hutchings . Weems, 35 Mo. 285; Brady v. Chandler, 31 Mo. 28; Van Doren v. Relfe, 20 Mo. 455; Wilkes v. Morehead, Stanton's Code (Ky.), p. 31 (n.); Lytle v. Lytle, 2 Metc. 127, 128. |