actions.1 Another school of judges, regarding the codes as highly remedial statutes, have been inclined to follow out their spirit, and to give their language the fullest meaning of which it is capable, even to the extent of holding that its general expressions abolished and swept away the legal distinctions between joint, joint and several, and several rights and liabilities. The influence and effect of these different systems of interpretation will be shown in the succeeding sections of this chapter.

§ 61. 123. More Radical Statutes in a Few States. Outline of Treatment of Parties. In a few of the States the legislation has left no room for any such conflict of opinion, and has pushed the equitable theory to its final results by express enactments which leave nothing to implication. The codes of these States provide for bringing in parties to certain legal actions under some circumstances merely because they have an interest in the event of the suit, although they have no share in the relief, and bear no part of the liability; and they utterly abrogate the common-law rules relative to joint, joint and several, or several liabilities. In these States, therefore, there can be no doubt as to the construction which should be put upon the general statutory provisions quoted; and they are treated as establishing the equity doctrine and applying it to actions of all kinds. In the succeeding sections of this chapter I shall pursue the order of the legislation which is the same in all the States, and shall separately discuss the following subjects: The Real Party in Interest to be made Plaintiff; The Effect of an Assignment of a Thing in Action upon the Defences to it; A Trustee of an Express Trust, etc., to sue alone; Who may be joined as Plaintiffs; Who may be joined as Defendants; When One or More may sue or be sued for All; Parties severally liable on the same Instrument; Bringing in New Parties; Intervening; and Interpleader.

As an illustration of these views, see the opinion of S. L. Selden J. in Voorhis v. Child's Ex., 17 N. Y. 354.

SECTION SECOND.

THE REAL PARTY IN INTEREST TO BE MADE PLAINTIFF.

3

§ 62. 124. Statutory Provision as to Real Party in Interest. "Every action must be prosecuted in the name of the real party in interest, except when otherwise provided. . .,' ..," is the sensible and comprehensive form used in Ohio, California, Iowa, Nebraska, Wyoming, Idaho.2 To this is added: "But this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract," in Indiana, Kansas, Missouri, Wisconsin, South Carolina, Kentucky, Oregon, Nevada, North Carolina, Washington. It was sometimes said that at the common law a thing in action, not negotiable, could not be assigned; but the true meaning of the rule was merely this, that the assignee could not bring an action upon it in his own name. Courts of law had long recognized the essential validity of such assignment in a large class of cases, by permitting the assignee, who sued in the name of his assignor, to have entire control of the action, and by treating him as the only person immediately interested in the recovery. Indeed, the assignment gave to the assignee every element and right of property in the demand transferred, except the single one of suing upon it in his own name; it was regarded as assets in his hands and in those of his personal representatives; his rights were completely protected against the interference of the assignor with an action brought in the latter's name. It is true, the property derived from the assignment was said to be equitable, and not legal; but this distinction did not lessen the intrinsic, essential nature of the ownership. It would seem that the property of the assignee is now strictly legal, although the question does not require any solution in this work.

[Sheridan v. Nation (1900), 159 Mo. 27, 59 S. W. 972: The code requirement that the suit be brought in the name of the real party in interest does not mean that it must be brought in the real name of the party in interest. A party may do business in any name he wishes, and suit may be brought in that name.

Definition: "The real party in interest

under section 29 of the code of Civil Procedure, is the person entitled to the avails of the suit: Kinsella v. Sharp (1896), 47 Neb. 664, 66 N. W. 634.]

2 [Also in New York, Utah, North Dakota, Montana, Washington, Colorado, and Arkansas.]

8 [Also in South Dakota and Arizona.]

§ 63. 125. Principal Effect of Statutory Provision. One effect and perhaps the principal effect of this statutory provision is, that all assignees of things in action which are assignable may sue upon them in their own names, and are no longer obliged to sue in the names of the original assignors. It is not strictly correct to say that the provision itself renders any thing in action assignable, that it creates any attribute of assignability; but, for the purpose of defeating such possible interpretation, the second clause was added in many of the codes. This limiting clause, however, is only negative in its form and meaning. It merely forbids a certain construction to be placed upon the preceding language. It does not say that no thing in action is assignable unless it arises out of contract. The rules governing this quality of things in action are found in other provisions of the law, and not in this section.

§ 64. 126. Legal Assignment. Action in Name of Assignee. Illustrations. The immediate and in some respects the most important consequence of the rule that "every action must be prosecuted in the name of the real party in interest," is this: wherever a thing in action is assignable, the assignee thereof must sue upon it in his own name.2 I shall therefore, in the first place, discuss this result, and ascertain the extent to which it has been carried, and the cases to which it has been applied. It is abundantly settled that when a thing in action, transferable by the law, is absolutely assigned, so that the entire ownership

1 This provision only applies to "" actions" as defined in the code, and not to special proceedings. The proceeding to enforce a mechanic's lien, in pursuance of certain special statutes in New York, is not an action; and the original holder of the lien who had assigned it is the proper party to institute the proceeding for the benefit of his assignee. Hallahan v. Herbert, 57 N. Y. 409. As to actions by the assignee, see Devlin v. The Mayor, etc., 63 N. Y. 8, 14-20; Sheridan . The Mayor, etc., 68 id. 30; Fitch v. Rathbun, 61 id. 579; Morris v. Tuthill, 72 id. 575; Merchants' Bank v. Union R. & T. Co., 69 id. 373, 380; Green v. Niagara Ins. Co., 6 Hun, 128; Jackson v. Daggett, 24 Hun, 204; Browning v. Marvin. 22 Hun, 547; Archibald Mut. Life Ins. Co., 38 Wis.

542; Carpenter v. Tatro, 36 id. 297; Hardin v. Hilton, 50 Ind. 319; State v. Johnson, 52 Ind. 197; Mitchell v. Dickson, 53 Ind. 110; Shane . Francis, 30 Ind. 92; Gallagher v. Nichols, 60 N. Y. 438, 448.

2 [Phoenix Ins. Co. v. Carnahan (1900), 63 O. St. 258, 58 N. E. 805: Where the owners of a chose in action assign the same absolutely to a third party, the assignee must sue on it, even though the contract of assignment contains the further provision that the assignors are to proceed to collect the moneys due on said chose in action in their own names and pay over the same to the assignee. The code is imperative that the action must be brought in the name of the real party in interest.]

passes to the assignee without condition or reservation, and the legal title is fully vested in him, he is the real party in interest, and may sue upon it in his own name, and is, in fact, the only proper party to bring the action,1-as in the case of a claim for the use and occupation of land thus assigned; a partnership demand transferred by the other partners to one member of the firm; 3 a delivery bond taken by a constable for the delivering up of property which he had seized on execution and transferred to the plaintiff in the action; the right of action to recover damages for a breach of a covenant of seisin in a deed of conveyance assigned by the grantee; 5 a claim for borrowed money. It was held in Missouri that the assignee of a thing in action arising out of contract must sue in his own name, although there was no specific statutory provision in that State permitting such a demand to be assigned, and the statutory provision to that effect formerly existing had been omitted from the revision of the laws then in force. The clause of the Practice Act was enough to authorize the action because he was the real party in interest.7

§ 65. *127. Equitable Assignment. Same Rule. Illustrations. Not only does the rule prevail when the assignment is absolute and complete, and the assignee is the legal owner of the demand;

1 [Crum v. Stanley (1898), 55 Neb. 351, 75 N. W. 851: The assignee of a chose in action is the proper and only party who can maintain an action thereon. Wood v. Carter (1903), Neb. -, 93 N. W. 158; Gunderson v. Thomas (1894), 87 Wis. 406, 58 N. W. 750: The assignor of a chose in action is not a necessary party. But, as was held in Philip v. Durkee (1895), 108 Cal. 300, 41 Pac. 407, the averment that the plaintiff, who is an assignee of a contract, was damaged in a certain sum by its breach, is immaterial and cannot aid a failure to aver how much the assignors were damaged thereby.]

2 Mills v. Murry, 1 Neb. 327, and a claim of damages for waste against a tenant or subtenant in favor of the reversioner, and by him assigned to the plaintiff. Rutherford v. Aiken, 3 N. Y. Sup. Ct. 60.

8 Canefox v. Anderson, 22 Mo. 347; Stuckey v. Fritsche, 77 Wis. 329; Walker v. Steele, 9 Colo. 388. A non-negotiable note payable in work, Schnier v. Fay, 12

Kan. 184; Williams v. Norton, 3 Kan. 295. [Baxter v. Hart (1894), 104 Cal. 344, 37 Pac. 941: Where two partners jointly entered into a contract with defendant, and then, by an agreement between themselves, stipulated that plaintiff should be the recipient of the entire benefit thereof, this constitutes plaintiff the real party in interest and he is the proper and only party plaintiff. All the facts show. ing it, however, should be alleged.]

4 Waterman v. Frank, 21 Mo. 108; and see Moorman v. Collier, 32 Iowa, 138. Where a bond is taken in an action by an officer for the security of any particular person, that person is the real party in interest.

5 Van Doren v. Relfe, 20 Mo. 455; Utley v. Foy, 70 N. C. 303 (a land contract). See also Bartholomew Cy. Comm'rs v. Jameson, 86 Ind. 154.

Smith v. Schibel, 19 Mo. 140; Knadler v. Sharp, 36 Iowa, 232, 235 (an open account).

7 Long v. Heinrich, 46 Mo. 603.

it prevails with equal force in cases where the assignment is simply equitable in its character, and the assignee's title would not have been recognized in any form by a court of law under the old system, but would have been purely equitable. Such assignee, being the real party in interest, must bring an action in his own name; for, in respect to this provision of the statute, the equity doctrine which it embodies is, beyond a question, to be applied to all actions.1 As illustrations: the person to whom an order is given by a creditor upon his debtor for the whole amount of the demand, although the debtor has not accepted nor promised to pay, is an equitable assignee, and must sue in his own name; also, where a creditor assigns part of his claim to the plaintiff, of which the debtor has notice; and when a bond was verbally assigned, and was delivered by the obligee to the plaintiff; and when the assignment, though absolute on the face, was, in fact, partial, the assignee agreeing to account for the remaining portion to the assignor. In this case the assignor might be brought in to protect his own interests, and, in some States, would be an indispensable party.5 The rule deduced

4

1 See Cottle v. Cole, 20 Iowa, 481, 485; Lytle v. Lytle, 2 Metc. (Ky.) 127. In the first of these cases Mr. Justice Dillon said: "The course of decision in this State establishes this rule; viz., that the party holding the legal title of a note or instrument may sue upon it, though he be an agent or trustee, and be liable to account to another for the proceeds of the recovery; but he is open in such case to any defence which exists against the party beneficially interested. Or the party beneficially interested, though he may not have the legal title, may sue in his own name. This may not precisely accord with the line of decisions under other codes, but we think it liberal and right, and conducive to the practical attainment of justice." [Hartzell v. McClurg (1898), 54 Neb. 316, 74 N. W. 626: "The equitable owner of a negotiable promissory note in his possession may maintain an action thereon in his own name."]

2 Wheatley v. Strobe, 12 Cal. 92, 98; Walker v. Mauro, 18 Mo. 564. Upon facts as stated in the text, Gamble J. says in the last case: "The effect of our new

code of practice, in abolishing the distinc tions between law and equity, is to allow the assignee of a chose in action to bring a suit in his own name in cases where, by the common law, no assignment would be recognized. In this respect, the rules of equity are to prevail, and the assignee may sue in his own name." He goes on to show that this is an equitable though not a legal assignment.

3 Grain v. Aldrich, 38 Cal. 514; Childs v. Alexander, 22 S. C. 169. See Shaver v. West. Un. Tel. Co., 57 N. Y. 459, 464.

4 Conyngham v. Smith, 16 Iowa, 471, 475; Barthol v. Blakin, 34 Iowa, 452, and Moore v. Lowry, 25 Iowa, 336. Same decision in case of mortgages verbally assigned. S. P. Green v. Marble, 37 Iowa, 95; Andrews v. McDaniel, 68 N. C. 385 (an unindorsed note).

5 Gradwohl v. Harris, 29 Cal. 150. The action was brought by plaintiff as assignee of W. & B. of a contract for the payment of money. W. & B. intervened, alleging that, though the assignment was absolute on its face, it was actually for onefourth only of the demand, and they (W. & B.) were entitled to three-fourths