settled that when a simple contract, whether verbal or written, is entered into by an agent in his own name, but really acting on behalf of an undisclosed principal, and the fact of the agency is unknown at the time, but the parties suppose that they are dealing with him on his own individual account, the principal may bring an action and recover upon it as though he had been the party expressly contracting. In these cases, however, the agent may also bring the action; he being one of the contracting parties, the agreement being in express terms made with him, he is a proper party to enforce its observance; 2 the agent may also sue, even where the principal was disclosed, and it was shown that he was acting in behalf of such principal, if the contract is of such a form that the promise is in express terms made to the agent himself. Where the promise in favor of a principal is implied, the agent cannot in general sue upon it in his own name, but the action must be brought by the principal himself. Thus, where a person making a bet in his own name deposited $3,000, the amount thereof, with the stakeholder, but of this sum only $600 was his own money, and the rest had been furnished by other parties not as a loan -- who united with him in the wager, and he brought an action under the statute against the stakeholder to recover back the whole amount of the money so deposited by him, it was held by the New York Court of Appeals that he could only recover the $600 which he had actually furnished of his own funds; that he was simply an agent for the owners of the remaining portion of the moneys advanced, and the implied promise to refund arose in their favor alone; and they must therefore sue in their own names to recover their respective shares.1

1 St. John v. Griffith, 2 Abb. Pr. 198; Hall v. Plaine, 14 Ohio St. 417; Higgins v. Senior, 8 Mees. & W. 834; Sims v. Bond, 5 B. & Ad. 389, 393, per Ld. Denman; Bastable v. Poole, 1 Cromp. M. & R. 410, per Parke B.; Hicks v. Whitmore, 12 Wend. 548; Taintor v. Prendergast, 3 Hill, 72. See post, § 177.

2 See cases cited in last note. Tyler v. Freeman, 3 Cush. 261; [Herman v. City of Oconto (1898), 100 Wis. 391, 76 N. W. 364; Barham v. Bell (1893), 112 N. C. 131, 16 S. E. 903; Brown v. Sharkey (1894), 93 Ia. 157, 61 N. W. 364; Brannon v. White Lake Tp. (1903), — Ia. —, 95 N. W. 284.]

8 Cases cited in last notes. Fear v.

Jones, 6 Iowa, 169; Usparicha v. Noble, 13 East, 332; Buffum v. Chadwick, 8 Mass. 103; Fairfield v. Adams, 16 Pick. 381.

[In Ward v. Ryba (1897), 58 Kan. 741, 51 Pac. 223, an agent took a bill of sale of personal property in his own name, in payment of a debt due to his principal, and upon taking possession of the property was dispossessed of it by a third person. It was held that the agent could not maintain replevin for it under a general allegation of ownership in himself, without stating facts in respect to his special interest and right of possession.]

4 Ruckman v. Pitcher, 20 N. Y. 9. For further examples of the real party in

Particular Injury to Plaintiff Essential in Certain Cases. People cannot maintain Action to redress Private Wrong. It is the established doctrine in several States, and by many cases, that an action cannot be maintained by a private person, citizen, freeholder, or tax-payer, either suing alone or on behalf of all others similarly situated, to restrain or remove or redress any public wrong, or nuisance, or unlawful act done under color of legal authority by the officers of a county, town, city, or other municipality, unless the plaintiff has suffered some special wrong, unless some particular injury is done to him which is not sustained by all others in the community alike. As a result of this rule, no citizen or tax-payer or freeholder can prosecute an action

to restrain official acts which would create a municipal indebtedness; or to set aside and annul such public acts when done, although the indebtedness must sometime be paid by means of increased taxation, and the plaintiff's property would be liable for his proportionate share of the tax when levied. On the other hand, actions of the nature and for the purposes described, brought by a citizen, tax-payer, or freeholder, are permitted in many and perhaps in a majority of the States, and are common forms of judicial proceeding to restrain the abuse of local legislative and administrative power by municipal officials. Among these remedial processes are actions by a citizen, tax-payer, or freeholder to restrain or set aside tax proceedings, the levying of assessments for local improvements, the issue of bonds by municipal corporations in aid of railways, and similar acts of a public or quasi public nature.2 On the other hand, the people cannot

1 Doolittle v. Broome Cy. Supervisors, 18 N. Y. 155; Roosevelt v. Draper, 23 N. Y. 318; People v. Mayor, 32 Barb. 102; Sargent v. Ohio & Miss. R. Co., 1 Handy, 52; Carpenter v. Mann, 17 Wis. 155; Kittle v. Fremont, 1 Neb. 329; Craft v. Jackson Cy. Com'rs, 5 Kan. 518; Kirkpatrick v. State, 5 Kan. 673; Tift v. Buffalo, 1 N. Y. Sup. Ct. 150; Comins ". Jefferson Cy. Sup., 3 id. 296; Ayres v. Lawrence, 63 Barb. 454; Demarest v. Wickham, 63 N. Y. 320; Kilbourne. St. John, 59 id. 21; Lutes v. Briggs, 64 id. 404; Wood v. Bangs, 1 Dak. 179.

2 [Kircher v. Pederson (1903), 117 Wis. 68, 93 N. W. 813; Zuelly v. Casper (1903), - Ind., 67 N. E. 103.] Rice v. Smith, 9 Iowa, 570; State v. Bailey, 7 id. 390; State. Marshall Cy. Judge, 7 id. 186; Litchfield . Polk Cy., 18 id. 70; Olmstead . Henry Cy. Sup., 24 id. 33; Williams v. Peinny, 25 id. 436; Stokes v. Scott Cy., 10 id. 166; McMillan v. Boyles, 14 id. 107; Rock v. Wallace, 14 id. 593; Ten Eyck . The Mayor, 15 id. 486; Chamberlain v. Burlington, 19 id. 395; Hanson v. Vernon, 27 id. 28; Hubbard v. Johnson Cy. Sup., 23 id. 130; Harney v. Charles, 45 Mo. 157; Scribner v. Allen, 12 Minn. 148; Howes v. Racine, 21 Wis. 514; Mitchell v. Milwaukee, 18 id. 92, 97; Bond . Kenosha, 17 id. 284, 287; Veeder v. Lima, 19 id. 280, 295-299; Rochester v. Alfred Bank, 13 id. 432, 439; Sauer

hering v. Iron Ridge & M. R. Co., 25 id. 447; Warden v. Fond du Lac Cy. Sup., 14 id. 618; Kellogg v. Oshkosh, 14 id. 623; Nill v. Jenkinson, 15 Ind. 425; Lewis v. Henley, 2 id. 332; La Fayette r. Fowler, 34 id. 140; Harney v. Indianapo lis, C. & D. R. Co., 32 id. 244; Coffman r. Keightley, 24 id. 509; Oliver v. Keightley, 24 id. 514; Nave v. King, 27 id. 356; Harrison Cy. Com'rs v. McCarty, 27 id. 475; Madison Cy. Com'rs v. Brown, 28 id. 161; Andrews v. Pratt, 44 Cal. 309; Bucknall v. Story, 36 Cal. 67; Douglass v. Placerville, 18 Cal. 643; Vanover v. Justices, etc., 27 Ga. 354; Brodnax v. Groom, 64 N. C. 244; Galloway v. Jenkins, 63 N. C. 147; Worth v. Fayetteville, 1 Wins. (No. 2 Eq. N. C.) 70; Mobile v. Waring, 41 Ala. 139; Gilmer v. Hill, 22 La. An. 465; White Sulphur Springs Co. e. Holly, 4 W. Va. 597; Bull v. Read, 13 Gratt. 78; Baltimore v. Gill, 31 Md. 375, 395; Stoddert v. Ward, 31 Md. 562; Lane v. Schomp, 20 N. J. Eq. 82; Merrill v. Plainfield, 45 N. H. 126; Barrv. Deniston, 19 N. H. 170, 180; New London v. Brainard, 22 Conn. 552; Scofield v. Eighth School Dist., 27 id. 499, 504; Webster v. Harwinton, 32 id. 131; Terrett v. Sharon, 34 id. 105; Mercer Cy. Sup. v. Hubbard, 45 Ill. 139; Vieley v. Thompson, 44 Ill. 9; Cleghorn v. Postlewaite, 43 id. 428; Taylor v. Thompson, 42 id. 9; Clarke v. Hancock Cy. Sup., 27 id. 305, 311; Butler v Dun

maintain a civil action for the redress of mere private wrongs. An action can be brought in their name only to uphold and enforce a distinct right on their part in respect to the subjectmatter of the controversy.1

§ 81. *143. Special Provision in New York respecting Action by Grantee of Land held by Disseisor at Time of Conveyance. Partnerships. The last clause of § 111 (1501, 449, 1909, 1910) in the New York Code was added as an amendment merely for purposes of certainty, and to remove all possible doubts as to the true meaning of the section. As it was originally enacted without this clause, a doubt had sometimes been suggested whether any action at all could be brought under the circumstances mentioned in the amendment, that is, when land had been conveyed by an owner which at the time was held by a disseisor adversely to such true owner. If brought by the grantee, he could show no title, because the conveyance to him would, by virtue of other rules of the law, be deemed a nullity. If brought in the name of the grantor, it might be said that he was not the real party in interest, and, under the requirements of this section, was forbidden to sue. The code was therefore amended so as to exclude the latter construction, by adding the final provision as it now stands. The purpose of this amendment is really to limit and restrict the operation and effect of the section as originally enacted, and not to create any new authority or right as between the grantor and the grantee for the use of the former's name by the latter, nor to create any new title to the land in the grantee himself. An express provision exists in the codes of certain

ham, 27 id. 474; Perkins v. Lewis, 24 id. 208; Robertson v. Rockford, 21 id. 451; Prettyman v. Tazewell Cy. Sup., 19 id. 406; Drake v. Phillips, 40 id. 388; Colton r. Hanchett, 13 id. 615; Dows v. Chicago, 11 Wall. 108. See Dillon on Munic. Corp. $$ 906, 914-924 (4th ed.); Allison v. Louisville, etc. R. Co., 9 Bush, 247. See also later cases, Longley v. City of Hudson, 4 N. Y. Sup. Ct. 353; Marsh v. City of Brooklyn, id. 413; Clay Cy. Com'rs v. Markle, 46 Ind. 96, 103-105; Zorger v. Rapids Tp., 36 Iowa, 175; Minnesota Oil Co. v. Palmer, 20 Minn. 468; Hodgman v. Chicago & St. P. R. Co., 28 Minn. 48; Moses v. Kearney, 31 Ark. 261; Normand v. Otoe Cy. Com'rs, 8 Neb. 18; Noesen

v. Port Washington, 37 Wis. 168; Benton Cy. Com'rs v. Templeton, 51 Ind. 266; Delaware Cy. Com'rs v. McClintock, 51 Ind. 325; Turpin v. Eagle Creek, etc. Co., 48 Ind. 45; Ayers v. Lawrence, 59 N. Y. 192; Metzger v. Attica & A. Arc R. Co., 79 id. 171; Newton v. Keech, 9 Hun, 355. See also, on this subject, 1 Pomeroy's Equity, §§ 258, 259, 260, 265, 266.

1 People v. Albany & Susq. R. R., 57 N. Y. 161; People v. Ingersoll, 58 N. Y. 1; People v. Fields, 58 N. Y. 491. See People v. Sherwin, 2 N. Y. Sup. Ct. 528; and Wood v. The Mayor, etc., 73 N. Y. 556.

2 Hamilton v. Wright, 37 N. Y. 502, 507, per Woodruff J.; Steeple v. Down

States, authorizing partnerships to sue and to be sued by and in their firm names, without making the individual members by name parties to the action.1 This provision is merely permissive, and not at all compulsory; it is not a substitute for, but an addition to, the former existing methods of conducting suits.2

SECTION THIRD.

THE EFFECT OF AN ASSIGNMENT OF A THING IN ACTION UPON THE DEFENCES THERETO.

*

§ 82. 154. Statutory Provisions respecting the Effect of Assignment upon Defences. The statutory provision found in the various State codes which relates to the subject-matter of this section is the following: "In the case of an assignment of a thing in action, the action by the assignee is without prejudice to any set-off or other defence existing at the time of or before notice of the assignment; but this section does not apply to a negotiable promissory note or bill of exchange, transferred in good faith and upon good consideration, before maturity." In Ohio, Kansas, and Nebraska, the phraseology is slightly different. reads: "The action of the assignee shall be without prejudice to any set-off or other defence now allowed."4 The consideration of the topics embraced in this provision should, in a strictly scientific method, form a part of the general subject of Defences, and might properly be postponed until this portion of the work is reached; but I have chosen to pursue the order of the codes themselves, which is the same in all the States, rather than to

ing, 60 Ind. 478; Voorhis v. Kelly, 31 Hun, 293; Smith v. Long, 12 Abb. N. Cas. 113.

It

§ 6071; Arizona, Rev. St., 1901, § 1301; Oklahoma, St., 1893, § 3899; Montana, § 571; Idaho, Code Civ. Pro., 1901, § 3156;

1 See statutory provisions cited in note Wyoming, Rev. St., 1899, § 3467; Coloto § 121, ante.

2 Whitman v. Keith, 18 Ohio St. 134. 8 New York, § 112 (502, 1909, 1910); [Minnesota, St., 1894, § 5157;] California, § 368; Kentucky, § 31; South Carolina, § 135; Oregon, §§ 28, 382; Nevada, § 5; Iowa, § 2546 (slightly altered); North Carolina, § 55; [Utah, Rev. St., 1898, § 2903; North Dakota, Rev. Codes, 1899, § 5222; South Dakota, Ann. St., 1901,

rado, § 4; Connecticut, Gen. St., 1902, § 650, in a somewhat different form from that given in the text; Indiana, Burns' St., 1901, § 277; Wisconsin, St., 1898, § 2606.]

4 [Ohio, Bates' Ann. St., § 4993;] Kansas, § 27; [Nebraska, § 31; Washington, Bal. Code, § 4835, in a quite different form.]