hundred and thirteen; but this section shall not be demeed to authorize the assignment of a thing in action not arising out of

contract.

The amendment of 1851 in this section is the insertion of the words at the end, printed in italic.

a. By this section it was intended to authorize a suit at law in the name of an assignee of a chose in action, and thus to abrogate the rule of the common law which renders such things unassignable. That this was its principal if not its whole design, I think is clear. It is shown by the very next section of the code, which, evidently following up the same train of thought, refers exclusively to actions by assignees of things in action. The amendment introduced, after the last revision, to section 111 itself, has the same tendency. In order to bring a case within section 111, there must be an assignment in fact. An obligation to assign, or a state of circumstances which would operate to transfer the equitable interest in the thing in action, will not be sufficient. There must be that done which, before the code, would have passed the legal title but for the rule which denied the assignability of such an interest. There are other reasons why the plaintiffs cannot sustain this action. Section 111 is, by its express language, inapplicable to the assignment of a thing in action, not arising out of contract. As there could, therefore, be no express assignment of this claim, which grows out of a tort by the act of the party, it would seem to follow that no assignment can be implied." Merchants' Mut. Îns. Co. v. Eaton, 11 Leg. Obs., 140.

b. In actions against owners of vessels, &c., difficulty was forinerly experienced in ascertaining the names of the persons to be served, to obviate which it was enacted (Laws of 1836, p. 582) that every association or company formed for the purpose of the transportation of passengers or property, either by boats, vessels or stages, shall make a statement of the names of the persons composing such association or company, and file in the clerk's office in each county through which such association or company may transact its business a copy of such statement; and until such statement is filed any action to be brought against such association or company is not to be abated by reason that all the members of the association are not joined in the action; and that after such statement is filed, any action against the persons named therein is not to be abated for the reason that other owners have become interested, unless thirty days previous to the bringing of such action a further statement has been filed, showing the change in the persons composing such association, and the time when such change took place; nor is any action to be defeated by reason that any of said parties have ceased to be interested, unless at least thirty days before such action is brought a notice thereof shall be filed as aforesaid.

c. As to actions by and against joint stock companies, it is provided by laws of 1849, c. 258, p. 389, that any joint stock company consisting of seven or more shareholders or associates may sue and be sued in the name of the president or treasurer for the time being of such joint stock company or association; and all suits and proceedings so prosecuted by or against such joint stock company or association, and the service of all process or papers in such suits and proceedings on. the president and treasurer, for the time being, of such joint stock company or association, shall have the same force and effect, as regards the joint rights, property, and effects of such joint stock company or association, as if such suits and proceedings were prosecuted in the names of all the shareholders or associates in the manner now provided by law; and as to joint stock companies, see Laws of 1853, p. 283.

d. As to actions to recover compensation for causing death by wrongful act, neglect, or default, it is provided by Laws of 1849, c. 256, p. 388, that every such action shall be brought by and in the names of the personal representatives of the deceased person.

e. An association formed under the general Banking Law may, by virtue of laws of 1838, p. 250, maintain an action either in the name of its president or in the name used in transacting its business. East River B'k. v. Judah, 10 Pr. R., 135.

a. A right of action against a common carrier for the loss of goods entrusted to him to carry, is not assignable so as to enable the assignee to sue in his own name. Thurman v. Wells, 18 Barb., 500.

What choses in action may be assigned.

b. The only change made by the code in respect to the transfer of a thing in action, is to transfer with the beneficial interest the right of action also in those cases where, before the code, a court [of equity] would recognize and protect the rights of the assignee. No new right of action is created; no authority is given to assign a right of action which before was not assignable. When the right of action is of such a nature as not to be the subject of a contract, as in the case of a violation of personal or relative rights, it cannot be assigned. The action can only be maintained by the party who has been injured, and when he dies the right of action also dies. Every right of action involving life, health, or reputation, belongs to this class. So a right of action founded upon a breach of promise of marriage, being in its nature a personal injury, cannot be transferred. On the other hand, where the injury affects the estate rather than the person, where the action is brought for damage to the estate, and not for personal suffering, the right of action may be bought and sold. Such a right of action, upon the death, bankruptcy, or insolvency of the party injured, passes to the executor or assignee as part of his assets; because it affects his estate, and not his personal or relative rights. Of course, such a right of action is assignable; and, under the provisions of the code, the assignee is the proper party to maintain the action. Harris, J., Hodgman v. Western R. R. Co., 7 Pr. R. 493.

c. All choses in action embracing demands which are considered as matters of property or estate, are now assignable either at law or in equity. Nothing is excluded but mere personal torts which die with the party. A claim, therefore, for property fraudulently or tortiously taken or received, or wrongfully withheld, and even for an injury to either real or personal property, may be assigned. Paige, J., Hoyt v. Thompson, 1 Selden, 347.

d. When a claim is on contract, it is not rendered non-assignable because there is proved or alleged fraud on the part of the defendant in the transaction out of which the claim arises. Brady v. Bissell, 1 Abbott, 76.

e. When a cause of action is a simple tort, and for a special injury to the person, it is not more assignable under the code than it was under the laws which formerly prevailed. Purple v. Hudson R. R. R. Co., 1 Abbott, 33.

f. Although a mere right of action for a tort, is not assignable, yet after the conversion of a chattel the owner may sell the chattel itself, so as to give the purchaser a right to reclaim it from the wrong-doer, or to maintain an action for its recovery in his own name, on a demand made in his own behalf and a refusal to give it up. Hall v. Robinson, 2 Coms., 293; Cass v. N. Haven R. R. Co., 1 Smith, 522.

g. In Robinson v. Weeks (1 Code Rep. N. S., 311), it was held that a right of action for a tort for the taking or converting personal property, might be assigned; and that in an action to recover damages for the conversion of personal property, and verdict for the plaintiff, an assignment after verdict and before perfecting the judgment in the action is lawful, and vests the title to the judgment when perfected in the assignee.

h. At a general term of the supreme court at New-York, December, 1851, present, Edmonds, Edwards, Mitchell, and King, JJ., in the case of Zabriskie v. Sayre, it was held, that although an action connected with a wrong to the person is not assignable, yet when connected with property affecting its value, it is assignable, and the action may be brought for it in the name of the assignee.

i. A claim for damages for a breach of contract is assignable. Monahan v. Story, N. Y. Com. Pleas, Feb. 1854; citing and approving Parsons v. Woodward, 2 New Jersey Rep., 96.

j. An unexecuted contract for services to be performed and goods to be delivered may be assigned. Field v. Mayor of New York, 2 Selden, 179.

k. A right of action for a personal injury received by collision of cars upon a railroad is not assignable. Hodgman v. West. R. R. Co., 7 Pr. R. 493.

How chose in action may be assigned.

a. No formality is necessary to effect the transfer of a chose in action. Any transaction between the contracting parties which indicates their intention to pass the beneficial interest in the instrument from one to the other, is sufficient for that purpose; a debt or claim may be assigned by parol as well as by writing. 2 Sto. Eq.311; Heath v. Hull, 4 Taunt. 326; Roberts on Fr., 275; Slaughter v. Faust, 4 Blackf. 380; Montgomery v. Dillingham, 3 Sme. and M., 647; Hastings v. Mc Kinley, 1 Smith, 273.

b. An assignee of a right of action is not bound to show that he gave any valnable consideration for the assignment. The owner of a cause of action may give it away if he choose, and the donor would have as good a right as though he were an assignee for value. Clark v. Downing, 1 Smith, 406.

c. Proof of a valuable consideration is only necessary to be made when a defence is set up which, unless the plaintiff was a purchaser for value, would conclude him. James v. Chalmers, 5 Sand., 52.

d. When a chose in action is assignable it may be assigned in separate parcels to different persons, and either of the assignees may maintain an action to recover the portion to him assigned. Field v. The Mayor of N. Y., 2 Selden, 179; Cook v. Genesee Mutual Ins. Co., 8 Pr. R. 514.

Who is the real party in interest.

e. It is for the court to say upon a given state of facts, whether a plaintiff is the real party in interest. Williams v. Whitlock, 14 Mo. R., 552.

f. The fact that the plaintiff bas not the actual possession of the note sued upon, does not affect his right to recover upon it. It is sufficient if he has the right to the money due upon it. Smith v. McClure, 5 East., 476; 2 Saund., 47, a. note (1); Selden v. Pringle, 17 Barb., 468: Hastings v. McKinley, 1 Smith, 273.

g. Whether the plaintiff's title be legal or equitable is immaterial, if he have the whole interest he may maintain the action. Hastings v. McKinley, 1 Smith, 273.

h. Where an agent made a contract in writing in his own name and without disclosing his principal, it was held that the principal was the real party in interest, and might sue on the contract in his own name. Erickson v. Compton, 6 Pr. R. 471.

i. A., as agent of the plaintiff, effected a policy of insurance on property of the plaintiff. The policy was in the name of A. as principal, and contained a clause that any loss should be paid to A. only. A loss having occurred, it was held the plaintiff might maintain an action-being the real party in interest. Lane v. Columbus Ins. Co., 2 Code Rep., 65.

j. Possession of a negotiable bill of exchange or promissory note, is presumptive evidence of title. Mottram v. Mills, 1 Sand., 37; and where the plaintiffs, a bank, sued on a draft payable to the order of W. B. S., their cashier, and the complaint alleged that it was delivered to the said W. B. S., cashier," for the said Bank," held, on demurrer to the complaint, that the action was well brought in the name of the bank. Camden B'k. v. Rogers, 2 Code Rep., 45; 4 Pr. R. 63; East River B'k v. Judah, 10 Pr. R. 135.

k. The presumption of law, that the holder of a promissory note is its owner, is not repelled by showing that it came into his hands after it was due. James v. Chalmers, 5 Sand., 52.

1. A plaintiff who sues as indorsee of a note, and proves his title as such, is to be deemed the real party in interest under this section until the contrary is shown.—Ib. m. It is believed that the supreme court has made some exception to this rule in the case of an attorney at law suing as indorsee of a negotiable instrument; and that in such a case the plaintiff, besides the production of the instrument, should give some evidence of his being the holder as owner, and not in his capacity as attorney; sed quare. The distinction is supposed to arise out of the provision of the Revised Statutes (2 R. S. 4 ed. 474) prohibiting attorneys buying, &c., choses in action in order to bring suit thereon.

§ 112. [92.] (Amended 1849.) Assignment of thing in

· action.

In the case of assignment of a thing in action, the action by the assignee shall be without prejudice to any set off or other defence existing at the time of, or before notice of, the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before due.

a. A liquidated demand assigned in good faith, for a full consideration before it becomes due, is not subject to a set-off in favor of the debtor of a like demand against the assignor, payable to the debtor, which was in existence but was not due when the assignment was made. Watt v. Mayor, &c., of N. Y., 1 Sand., 23.

b. Where a suit was brought upon an account by the assignees thereof, in the name of the assignor, it was decided that a promissory note of the assignor, held by the defendant at the time of the assignment, but not then due, could not be set off against such account. Wells v. Stewart, 3 Barb., 40.

c. In Beckwith v. Union Bank (4 Sand., 610, affirmed in the Court of Appeals), "Under the former Oakley, Ch. J., in delivering the opinion of the court, says, statute of set-off, when the action was brought in the name of a party to a chose in action, by one to whom he had assigned it, the defendant seeking to make a set-off, was required to show that he had a right to make it against the nominal plaintiff at the time the assignment was made. The law preserved the equities of the parties, and the rights of an assignee were protected, although the suit was brought in the name of the assignor. Section 112 of the code was intended to preserve in the same manner the rights of defendants, in cases where the suit was prosecuted in the name of the assignee, as required by section 111.”

d. "The effect of the provisions of the code is to leave the right of set-off unaffected; and the case is to be decided according to the law of set-off, as established by the revised statutes. The only change made is in the form of the action."

e. Therefore, where a bank depositor who was an indorser on a bill held by the bank, running to maturity, and in whose favor there was a balance of account nearly equal to the bill, made a general assignment for the benefit of creditors; and soon after and before notice of the assignment the bill was protested, the assignor fixed as indorser, and the amount of the bill charged to his account on the books of the bank, and the bill was held by the bank uncanceled, when notice of the assignment was given; it was held that the assignee was entitled to recover from the bank the entire sum in deposit, without any deduction for the amount of the bill. Beckwith v. Union Bank, supra.

f. The admissions or declarations of an assignor of a chose in action, made while he is the holder, and before assignment, are evidence against his assignee, and all claiming under him. 2 Phill. Ev. (Cow. & Hill's Ed.), note 446, pp. 387, 644, 663. See Brown v. McGraw, 12 Sme. & M., 267; Grand Gulf Bank v. Wood, ib., 482.

g. In every assignment of an instrument even not negotiable, the assignor impliedly warrants that the instrument is valid, and the obligor liable to pay it. Lile v. Hopkins, 12 Sme. & M., 302.

h. The assignee of a cause of action, assigned after action brought, is liable to the defendant for costs, if he, (the assignee) proceed in the action after the assignment (Cow., 17); and in such a case he takes the demand cum onere, and is liable for the costs which had accrued before as well as those which arise after the assignment. 10 Wend, 622; 20 ib., 630, 632.

i. If an action be brought in the name of an assignor by an assignee of a right of action, or by any person beneficially interested in the recovery in such action,

such assignee or person is liable for costs in the same cases and to the same extent in which the plaintiff would be liable, and the payment of such costs may be enforced by attachment. (2 R. S., 515, s. 47, [619. s. 44.) 19 Wend., 151; 20 ib., 630. And such assignee or person is bound to indemnify the plaintiff on record, and will be directed to pay the costs on his application. 20 Wend., 630; 7 ib., 497. If the party in interest, however, succeed in the action, and the defendant appeals and succeeds on the appeal, the party in interest is not liable for the costs of the appeal. 19 Wend., 151.

See note to section 293 of this code.

§ 113. [93.] (Amended 1851.) Actions en autre droit.

An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another.

a. The amendment is the insertion, at the end, of the words printed above in italic. This amendment was evidently made with the view to remove the doubts which arose as to what was meant by the expression "trustee of an express trust." The amendment seems confirmatory of the decision of the superior court, in which it was held that" mercantile factors or agents doing business for others, but in their own names, were trustees of an express trust." Grinnell v. Schmidt, 3 Code Rep. 19; 2 Sand., 706.

b. An auctioneer, who in his own name, sells goods for a third person, is the trustee of an express trust within this section and may sue upon the contract of sale without an assignment to him of the cause of action. Bogart v. O'Regan, 1 Smith, 590; but independently of this section it was always the law that an auctioneer might sue on the contract of sale in his own name unless his principal elected to bring the action in his name. Minturn v. Main, 3 Selden, 224.

c. Bonds taken in the name of the People of the State (for the benefit of others), should be prosecuted in the name of the people, and not in the name of the party in interest. Bos v. Seaman, 2 Code R. 1., and in the People v. Norton (not reported), the court of appeals, where a bond of a trustee and his surety was given to the people of the State of New York for the benefit of those interested in the trust estate, and an action was brought on the bond in the name of the people, held it was rightly brought, and that the people were trustees of an express trust.

d. The nominal proprietor of an individual bank, who furnishes the securities to the comptroller, and to whom the circulating notes of the bank are delivered by tha t officer, and in whose name as proprietor all the contracts and transactions of the bank are made and conducted, is a "trustee of an express trust" within the meaning of this section. Burbank v. Beach, 15 Barb., 326.

e. All town and county officers may sue in their official capacity. (2 R. S., 325 8. 6.)

f. Suits may be brought by the supervisors of the county, the loan officers or commissioners of loans of a county, the county superintendents of the poor, commissioners of common schools, commissioners of highways, trustees of school districts, and town superintendents of common schools, upon any contracts made by them or their predecessors, in their official character, to enforce any liability or any duty enjoined by law to such officers or the body they represent, and to recover damages for any injuries done to the property or right of such officers, or the bodies represented by them; and they may bring such actions in the name of their respective offices, notwithstanding the contract or obligation on which the same is founded