The Secretary of State for the War Department of Great Britain was permitted to sue in his individual name to recover public moneys which had been embezzled by a subordinate official, it being shown that by the British statute the property was vested in him as such secretary.1 The "Metropolitan Fire Department," a commission created by statute for the city of New York, is declared to be a quasi corporation, capable of suing and being sued, and not a mere official agency of the municipality.” 66 § 108. *180. Meaning of Phrase, “Persons expressly Authorized by Statute" to sue. Classes of Persons Included. Hardly any attempt has been made by the courts to determine in a general manner the classes of persons who fall within the designation of "expressly authorized by statute" to sue. The Supreme Court of Indiana in one case made an approach towards such an interpretation. In an action upon a promissory note by the assignee thereof, his right to sue was denied by the defendant. The evidence tended to show that he was not the real party in interest. To meet this objection, he invoked a prior general statute, which expressly provides that indorsees and assignees of bills and notes may sue in their own names, and urged that he was thus brought directly within the class of 'persons expressly authorized by statute" mentioned in the section of the code under consideration. The court, however, refused to adopt this construction of the code. It said: "Is the assignee of a note who holds it as such, without any real interest, one of that class of persons here referred to as being expressly authorized by statute to sue'? or does the provision have reference to another class of persons, such as the guardians of an idiot, etc.? We are of the opinion that the clause of the section above quoted does not have reference to the rights of an assignee of a promissory note, but to such persons as may be authorized to sue in their own names because of holding some official position, as the president of a bank, the trustees of a civil township, and the like."3 There have been held embraced within the same class, not only the presidents and other managing officers of joint-stock associations for business purposes, but also similar Co., 11 N. Y. 376, 390, per Selden J. "A 2 Clarissy". Metropolitan Fire Dep., 7 Abb. Pr. N. s. 352. 3 Swift v. Ellsworth, 10 Ind. 205, per Hanna J. officers of some voluntary societies organized for purposes not connected with business, when the action is brought on behalf of, or in relation to matters belonging to, the society, and among other instances the following; a suit brought by the president of a voluntary unincorporated religious and missionary association to recover a legacy bequeathed to it; 2 by the treasurer of a division of the Sons of Temperance, a voluntary social organization; 3 by the president of a bank of which he was the nominal proprietor, all the contracts and transactions being in his name as such proprietor; by the trustee of the "Pittsburg Trust Company," an unincorporated business association, in an action brought to recover damages for negligence in not protesting a bill of exchange belonging to such association, by which the amount thereof was lost. An officer of the Bank of England was permitted to sue in New York upon a bill of exchange belonging to the bank, by showing that the statutes of England authorized him to bring an action. On the other hand, it has been held in the same State that an action brought by a person as foreman of a certain named fire company- unincorporatedcould not be maintained; that the provisions of the code and of other statutes authorizing suits in the name of officers of unincorporated bodies do not apply to such societies as fire companies. If the doctrine stated by the Indiana court cited above be taken as the correct interpretation of the clause, it follows that the whole section provides for three classes of persons who may sue in their own name, although not the real parties in interest; namely, first, those with whom, or in whose name, a contract is made for the benefit of another, to whom the promise is directly given, and who sue because they are the actual promisees; secondly, trustees proper of an express trust, who, by virtue of being trustees, have an interest in or title to some 1 [The president of an unincorporated association was allowed, under § 1919 of the Code of Civil Procedure, to bring an action to recover the property belonging to all the members of the same: Ostrom v. Greene (1900), 161 N. Y. 353, 55 N. E. 919.] 2 De Witt v. Chandler, 11 Abb. Pr. 459 (General Term). It was held that the action might be maintained under statutes of 1848, 1849; citing Tibbetts v. Blood, 21 Barb. 650. 8 Tibbetts v. Blood, 21 Barb. 650; expressly holding that these statutes are not confined to business associations. 4 Burbank v. Beach, 15 Barb. 326. Laughlin v. Greene, 14 Iowa, 92, 94. The plaintiff was said to be a trustee of an express trust. 6 Myers v. Machado, 6 Abb. Pr. 198. 7 Masterson v. Botts, 4 Abb. Pr. 130 (Sp. T.). property which is the subject-matter of the trust; and, thirdly, certain persons clothed with authority to do various acts for, or in behalf of, others, but who are not vested with any interest in or title to property, so as to render them trustees in the strict meaning of that term, and who are authorized by various statutes to maintain actions in the exercise of their personal authority, such as officers of voluntary societies, guardians, or committees of the person, and the like. That § 109. *181. Actions by Executors and Administrators. executors and administrators can maintain actions relating to the estate in their own names alone, is a proposition too familiar and elementary to require discussion or the citation of authority.1 Although in general a foreign executor or administrator cannot sue as such in the courts of another State or country than that in which he was appointed, yet, if the objection is not raised by 1 [In Bem v. Shoemaker (1898), 10 S. D. 453, 74 N. W. 239, it was held that on the refusal of the administrator to bring an action for the recovery of lands alleged to belong to the estate, the heirs may bring such action, on the broad ground that when one whose duty it is to protect the estate refuses to do so, the parties beneficially interested may take steps to do so. See also Tecumseh Nat. Bank v. McGee (1901), 61 Neb. 709, 85 N. W. 949, where the court said that "while the general rule is that an administrator or personal representative of a decedent's estate must prosecute actions for recovery of debts due the estate, there are exceptions to the rule; and in the present case held that the order of the trial court, substituting an heir at law and permitting her to prosecute the action for her interest in the claim in controversy in her own name, the other heirs having settled and compromised theirs, was not erroneous." Ives v. Mutual Life Ins. Co. (1901), 129 N. C. 28, 39 S. E. 631: Only the personal representative, and not the heirs, of a deceased beneficiary can bring an action on a life insurance policy. Burrell v. Kern (1899), 34 Ore. 501, 56 Pac. 809: "When the cause of suit or action, whether in contract or in tort, accrues after the death of the testator or intestate, the money, if recovered, will be assets of the estate, and the executor or adminis trator may sue, at his option, in either his representative or individual capacity." Hook v. Garfield Coal Co. (1900), 112 Ia. 210, 83 N. W. 963: An administrator cannot maintain trespass for injuries to the real estate of his intestate. In this case the court held that where administrators sue for trespass to real estate of their intestate under an assignment from the heirs, and request that the heirs, who assigned simply to avoid a multiplicity of suits, be substituted as parties plaintiff, such request, while discretionary with the court, should ordinarily be granted. Bunker v. Taylor (1900), 13 S. D. 433, 83 N. W. 555: Where an executrix of an estate dies pending a suit, and adminis trators are appointed to continue the administration of the estate, they are "successors in interest" to the executrix within the statute providing that on the death of a party, if the cause of action survive, the action may be continued by his successor in interest. Strauss v. Bendheim (1900), 162 N. Y. 469, 56 N. E. 1007: A contract of sale may be made by executors and enforced by them in an action for specific performance, without making the beneficiaries parties, where such executors have an unqualified and imperative power to sell real estate and convert it into cash in order to divide it among legatees.] - answer or demurrer, it is waived under the codes of procedure; that is, the objection goes simply to the parties' capacity to sue, and not to the cause of action set up in the complaint or petition.1 In California, lands owned in fee by the deceased do not descend at once to his heirs or pass to his devisees, but go with the personalty into the estate in the hands of his administrator or executor as a part of the assets to be administered upon. Any action, therefore, relating to such land, to recover its possession, or damages for injuries done to it, or rents, or the like, brought at any time before a final settlement of the estate and distribution thereof, must be prosecuted by the administrator or executor alone.2 In an action by the administrator of a mortgagee, brought to foreclose the mortgage, the heir of the mortgagee is not a proper party to be joined as a co-plaintiff. In California, as in New York, the mortgage is a mere security, incident and collateral to the debt, and belongs wholly to the personalty. § 110. *182. Actions by General Guardians. How far general guardians of infants, testamentary or appointed by the probate courts, are authorized to maintain actions in their own names, relating to the personal property of their wards, depends rather upon the provisions of the statutes which define their powers and duties than upon those of the codes. 1 Robbins v. Wells, 18 Abb. Pr. 191. [Held in Gregory v. McCormick (1893), 120 Mo. 657, 25 S. W. 565, that the objection that plaintiff is a foreign executor or administrator, if it appears on the face of the petition, if not raised by special demurrer on the ground that plaintiff has not legal capacity to sue, is waived. To the same effect see Wilson v. Wilson (1894), 26 Ore. 251, 38 Pac. 185, citing the text. But see Louisville & Nashville R. R. Co. v. Brantley's Adm'r (1894), 96 Ky. 297, 28 S. W. 477, where it was held that where a foreign administrator attempts to bring suit, defendant may demur generally on the ground that the petition does not state a cause of action. It is not a case of want of legal capacity to sue. And it was held in Locke v. Klunker (1898), 123 Cal. 231, 55 Pac. 993, that a demurrer for want of facts will not be sustained where it merely does not appear The codes in general can from the complaint that the plaintiff had capacity to sue as administratrix, but it must appear from the complaint that she did not have capacity. The former objection can be taken only by answer.] As to foreign administrator, see Connor's Adm. v. Paul, 12 Bush, 144; as to executors and administrators generally, see Duncan v. Whedbee, 4 Colo. 143; Mullin's Appeal, 40 Wis. 154; Harte v. Houchin, 50 Ind. 327; Wright's Adm. v. Wright, 72 Ind. 149 (A. as administrator of B.'s estate can sue A. as administrator of C.'s estate); Ham v. Henderson, 50 Cal. 367; Cashman v. Wood, 6 Hun, 520. 2 Curtis v. Herrick, 14 Cal. 117; Meeks v. Hahn, 20 Cal. 620; Grattan v. Wiggins, 23 Cal. 16; Emeric v. Penniman, 26 Cal. 119. 8 Grattan v. Wiggins, 23 Cal. 16. 4 [In an action brought in behalf of minors by a guardian, it is necessary for the guardian to allege issuable facts show hardly be deemed to have enlarged their powers in this respect. In a few States, the guardian is specifically mentioned and coupled with the executor and administrator in the section of the statute under consideration; and this language may be interpreted as authorizing him to sue in respect of all property which is under his control by virtue of his office. In New York, it has been determined by the Supreme Court in a very carefully considered case, the decision, however, being rested upon a construction of the Revised Statutes, and not of the code, that the general guardian may bring all actions in his own name respecting the personal property of the ward and the rents and profits of his real estate." This same power is expressly conferred upon him by the statutes of certain States. On the other hand, it is held in Kentucky that, while the guardian, who has taken a note expressly made to himself as payee for moneys belonging to the ward, may prosecute an action thereon, because the promise is given directly to him, he cannot sue in respect of his ward's property in general, since he has no estate or interest therein; such actions must be brought in the name of the infant. The ing his representative capacity, and if he does not do so the complaint is demurrable upon the ground of want of capacity to sue, but unless so made the objection is waived: Dalrymple v. Security Loan Co. (1900), 9 N. D. 306, 83 N. W. 245. The objection that the parties to an action are minors who appear without guardians ad litem is waived by pleading to the merits: Blumauer v. Clock (1901), 24 Wash. 596, 64 Pac. 844. A father may sue as guardian ad litem for services of his minor child rendered to a third party: Grosovsky v. Goldenberg (1902), 86 Minn. 378, 90 N. W. 282.] 1 This interpretation is given to the language of the code by the Supreme Court of Indiana in Shepherd v. Evans, 9 Ind. 260, which holds that, by virtue of the provision, the guardian is empowered to bring such actions in his own name. See Wilson v. Houston, 76 N. C. 375 (when wards are necessary plaintiffs); Crawford v. Neal, 56 Cal. 321 (necessary allegations in suit by infant by a guardian ad litem). A general guardian may sue, Hauenstein v. Kull, 59 How. Pr. 24; Fox v. Kerper, 51 Ind. 148; and see Carrillo . McPhil lips, 55 Cal. 130; per contra he cannot sue in his own name, Vincent v. Starks, 45 Wis. 458. 2 Thomas v. Bennett, 56 Barb. 197; Seaton v. Davis, 1 N. Y. Sup. Ct. 91; and see White v. Parker, 8 Barb. 48, 52; Mebane v. Mebane, 66 N. C. 334; Biggs v. Williams, 66 N. C. 427. 8 See [Wisconsin, St., 1898, § 3982.] 4 Anderson v. Watson, 3 Metc. (Ky.) 509. [So, also, in Missouri, in Webb v. Hayden (1901), 166 Mo. 39, 65 S. W. 760, it was held that a suit to recover property belonging to a ward should be brought in the name of the ward by the curator, and not in the name of the curator, since the title is in the ward. McLean ". Dean (1896), 66 Minn. 369, 69 N. W. 140: Where a note is purchased by a guardian, payable to himself, but with the funds of his ward and for the ward's benefit, the guardian may sue upon it in his own name. Dixon v. Cardozo (1895), 106 Cal. 506, 39 Pac. 857: After the commencement of the action plaintiff became insane, and a guardian was appointed and substituted, upon motion, as plaintiff. Held |