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.2 When a surviving partner assigns 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.3 4 § 73. *135. Joinder of Assignor in Some States. 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; 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.7 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.8 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 1 Bennett v. McGrade, 15 Minn. 132. Same as to assignment of a contract, Gallagher v. Nichols, 60 N. Y. 438, 448, 449; Bolen v. Crosby, 49 id. 183. 2 Masury v. Southworth, 9 Ohio St. 340. 3 Roys v. Vilas, 18 Wis 169. 4 Dean v. English, 18 B. Mon. 132; Gill v. Johnson's Adm., 1 Metc. (Ky.) 649; Lytle v. Lytle, 2 Metc. (Ky.) 127. 665. 5 Watson v Gabby, 18 B. Mon. 658, 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." 7 [Indiana, Burns' St., 1901, § 277.] Allen v. Miller, 11 Ohio St. 374. [Held in Shambaugh v. Current (1900), 111 Iowa, 121, 82 N. W. 497, that the defendant cannot require the assignor to be made a party, since any defence as against the assignor could be made against the assignee.] entitled to receive all the proceeds of the recovery, and whatever possibilities the assignor may have, he is not the real party in interest.// § 74. 136. Assignment Pendente Lite. Substitution of Assignee. 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 com 1 Smith v. Chicago & N. W. R. Co., 23 Wis. 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. See also Gates v. No. Pac. R. Co., 64 Wis. 64; Vimont v. Chicago N. W. Ry. Co., 64 Iowa, 513; Smith v. Felton, 85 Ind. 223 (note assigned as collateral security); Michael v. St. Louis Mut. F. Ins. Co., 17 Mo. App. 23 (the assignor of an insurance policy should not be joined as plaintiff with the assignee, to whom the whole policy has been transferred as collateral security); Cable v. St. Louis Marine Ry. Co., 21 Mo. 133; and see insurance cases, post, § *226, note. 2 [McCullough v. Dovey (1901), 61 Neh. 675, 85 N. W. 893; Parker v. Taylor (1902), Neb., 91 N W. 537; City of Springfield v. Weaver (1896), 137 Mo. 650, 37 S. W. 509; Tuffree v. Stearns Ranchos Co. (1899), 124 Cal. 306, 57 Pac. 69. Whether the assignee shall be substituted or the action shall proceed in the name of the original party, is a matter within the discretion of the court: Brown v. Kohout (1895), 61 Minn. 113, 63 N. W. 248; Fay v. Steubenrauch (1903), 138 Cal. 656, 72 Pac. 156; Sears v. Ackerman (1903), 138 Cal. 583, 72 Pac. 171. But in Wilson v. Kiesel (1894), 9 Utah 397, 35 Pac. 488, it was held that where an action is prosecuted to judgment in the name of the assignor, after an assignment pendente lite, no action can thereafter be brought on such judgment in the name of the assignor; and where an action is begun in his name it must be dismissed, an amendment substituting the real party in interest not being allowable. See, however, Service v. Bank (1900), 62 Kan. 857, 62 Pac. 670, and Hudson v. Barratt (1901), 62 Kan. 137, 61 Pac. 737, where such amendments were allowed. The statute furnishes no authority for the continuation of the action by the plaintiff where his assignee has settled the claim and demands that the action be discontinued. Hirsheld v. Fitzgerald (1898), 157 N. Y. 166, 51 N. E. 997. In McKnight v. Bertram Heating, etc. Co. (1902), 65 Kan. 859, 70 Pac. 345, a part of the claim was assigned pending the action, and it was held that the plaintiff, who sued on a quantum meruit, could recover in his own name the amount assigned In Matthews v. Cantey (1896), 48 S. C. 588, 26 S. E 894, defendant executed three promissory notes to A. A assigned them to B, and B pledged them to plaintiffs as collateral security for a debt which B owed plaintiffs. Said debt not being paid when due, plaintiffs brought this action on the notes, and it was conceded by all parties that plaintiffs had a good cause of action at that time. But after the commencement of this suit, B paid plaintiffs the debt in full, and assigned the notes to C., such assignment by B. divesting plaintiffs of all interest in the notes. and putting the legal and beneficial title in C. C did not move to be made a party, and the circuit court dismissed the action on the ground that the suit was not being prosecuted in the name of the real party in interest. This order was affirmed. Section 142 of the code provides that "no action shall abate by the death, marriage plaint. If an assignee carries on a suit in the name of the assignor, he must show affirmatively that the transfer was made pendente lite.2 137. Assignment of Part of Demand. § 75. Action by Grantee on Covenants. 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 or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage or other disability of a party, the court, on motion, at any time within one year thereafter, or afterwards on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest, the action shall be continued in the name of the original party, or the Court may allow the person to whom the transfer is made to be substituted in the action." The court held that the words "any other transfer of interest," under which it was sought to defeat the abatement of the action, meant "such a transfer of interest in the action as would enable the transferee to claim under the original party." And since in the case at bar the transferee claimed not under the original party, the plaintiffs, but under B., this statute did not save the action, and it must abate under the provision of section 132, requiring all actions to be prosecuted in the name of the real party in interest.] [Fish v. Smith (1900), 73 Conn. 377, 47 Atl. 711: "An assignment of a claim pending suit thereon calls for no altera tion or amendment in the complaint, but only for an application for a change of parties." And in Campbell v. Irvine (1895), 17 Mont. 476, 43 Pac. 626, it was held that the substituted plaintiff might prove the assignment by which he became entitled to the subject of the suit, although the assignment was not pleaded in the complaint. The Supreme Court of Washington, however, has held, in Powell v. Nolan (1902), 27 Wash. 318, 67 Pac. 712, that a supplemental complaint must be filed, and that a judgment obtained without the filing of such supplemental complaint is invalid, where the defendant was not present or represented in court at the time the substitution was made.] 2 St. Anthony Mill Co. v. Vandall, 1 Minn. 246; Virgin v. Brubaker, 4 Nev. 31; Warner v. Turner, 18 B. Mon. 758. See also McGean v. Metrop. Elev. Ry. Co., 133 N. Y. 9; Asher v. St. Louis, &c. R. Co., 89 Mo. 116; Lowell v. Parkinson, 4 Utah, 64; Todd v. Crutsinger, 30 Mo. App. 145; Hamilton v. Lamphear, 54 Conn. 237; Stewart v. Spaulding, 72 Cal. 264; Nichols v. Chicago, etc. Ry. Co., 36 Minn. 452; Snyder v. Phillips, 66 Ia. 481; Perkins v. Marrs, 15 Colo. 262. 3 Cable v. St. Louis Marine Railway Co., 21 Mo. 133; Leese v. Sherwood, 21 Cal. 151; Burnett v. Crandall, 63 Mo. 410; Beardslee v. Morgner, 73 Mo. 22; Loomis v. Robinson, 76 Mo. 488. But this rule does not prevent one of two joint payees from transferring the whole of his interest, so that his assignee (in this case the other payee) may sue in his own name; McLeod v. Snyder (Mo. 1892), 19 S. W. 494. See Lapping v. Duffy, 47 Ind. 51; Boyle v. Robbins, 71 N. C. 130; [Smith v. Atkinson (1893), 18 Colo. 255, 32 Pac. 425, holding that the common-law rule has not been changed.] 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.2 to the Use of" Another. Beneficiaries 3 § 76. *138. Suing under Express Trusts. 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 own name, at least alone. The correctness of this ruling may well be doubted. The section relative to the real party in interest is, in all the codes, imperative; 1 Grain v. Aldrich, 38 Cal. 514; Wiggins v. McDonald, 18 Cal. 126. See, also, Childs v. Alexander, 22 S. C. 169; Singleton v. O'Blenis, 125 Ind. 151 (partial assignee and assignor may join). [It was held in Schilling v. Mullen (1893), 55 Minn. 122, 56 N. W. 586, and in Dean v. St. Paul, etc. Ry. Co. (1893), 53 Minn. 504, 55 N. W. 628, that an action to recover a duly assigned portion of a demand cannot be maintained by the assignee where the assignor is not made a party, the debtor refusing to recognize the assignment. And in Cook v. City of Menasha (1899), 103 Wis. 6, 79 N. W. 26, it was held that the plaintiff was not aggrieved by an order of the court making the assignor a party. The same court held, in Skobis v. Ferge (1899), 102 Wis. 122, 78 N. W. 426, that the assignment by a creditor of a portion of a claim is not binding on the debtor unless he consents thereto.] 2 Hall v. Plaine, 14 Ohio St. 417; Sinker v. Floyd, 104 Ind. 291. 3 Weise v. Gerner, 42 Mo. 527; Hutchings v. 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. (Ky.) 127, 128. Also, State v. Johnson, 52 Ind. 197; Shane v. Francis, 30 id. 92. [Hollister v. Hubbard (1899), 11 S. D. 461, 78 N. W. 949. An action for breach of a sheriff's bond, payable to the county, must be brought in the name of the party in interest, and not in the name of the county for the use of such party. To the same effect is Guernsey v. Tuthill (1900), 12 S. D. 584, 82 N. W. 190. See, however, City of Bethany v. Howard (1899), 149 Mo. 504, 51 S. W. 94, where the contrary is held in respect to a contractor's bond.] 4 Reed . Harris, 7 Robt. 151. A Special Term decision, and not entitled to much weight. See Western R. Co. v. Nolan, 48 N. Y. 513; Davis v. Erickson, 3 Wash. 654; Kelley v. Thuey, 102 Mo. 522; Henricus v. Englert (N. Y. App. 1893), 33 N. E. 550 (obligees on a bond, who signed as " agents" of others, are the only proper plaintiffs to a suit on the bond, though a different rule would apply had the instrument not been under seal). while that in relation to the trustee of an express trust is permissive. § 77. 139. Actions by Third Persons for whose Benefit Contracts have been made. 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 was 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. 1 Hendrick v. Lindsay, 93 U. S. 143. For an interesting discussion of the rationale of the doctrine, see an article by Henry O. Taylor, 15 Amer. Law Rev. 231. 2 [The same doctrine prevails in Connecticut. See Baxter v. Camp (1898), 71 Conn. 245, 41 Atl. 803, and Morgan v. Randolph, etc. Co. (1900), 73 Conn. 396, 47 Atl. 658.] 3 Kimball v. Noyes, 17 Wis. 695; Sanders . Clason, 13 Minn. 379; Meyer v. Lowell, 44 Mo. 328; Cross v. Truesdale, 28 Ind. 44; Devol v. McIntosh, 23 Ind. 529; Day v. Patterson, 18 Ind. 114; Rice v. Savery, 22 Iowa, 470; Scott v. Gill, 19 [The provision Iowa, 187; Allen v. Thomas, 3 Metc. (Ky.) |