assignors; in short, against every person from whom the note has passed by assignment. Hamilton v. McDonald, 18 Cal. 128.

49. To enable the assignee of a judgment to sue on the appeal bond filed in the cause, he must have an assignment of the bond. Moses v. Thorne, 6 Cal. 88.

50. Personal property beyond the limits of this State, assigned in trust to pay the creditors of the assignor and assignee, both residing and being at the time in the foreign jurisdiction where the property was, and possession being taken by the latter, vests in the assignee according to the lex loci, and his title will be maintained here against execution creditors of the assignor. Forbes v. Scannell, 13 Cal. 242. 51. The holder of negotiable paper, indorsed before security, is supposed to be the bona fide owner of the same, and all intendments are in favor of his right. Palmer v. Goodwin, 5 Cal. 458.

52. The presumption of the law is in favor of such holder, to rebut which it is necessary to show by competent testimony that he is not the bona fide holder, or that the note was not indorsed until after maturity, or some other fact from which the law will imply a fraud. Id.

53. Under our system of practice an action may be brought in the name of the assignee as the party beneficially interested. Wheatley v. Strobe, 12 Cal. 98.

54. The owner of personal property, not in his possession, may transfer his right thereto to another, who may, on demanding possession of it, recover its value in an action, if the demand is not complied with, but such a demand is essential to give a right of action. Hall v. Robinson, 2 Comst. 293; Cap v. New Haven R. R. Co., 1 E. D. Smith's C. P. R. 522; Van Hassell v. Borden, 1 Hill. 128.

55. It is not necessary for the assignee of a thing in action to prove that he paid a consideration, if he shows that he is the real party in interest. Code, § 111; Arthur v. Brooks, 14 Barb. 533; Barnes v. Perine, 15 Id. 249; Robertson v. Gardner, 11 Pick. 146; Richardson v. Mead, 27 Barb. 178. See to similar effect, Nichols v. Atwood, 10 How. 475.

56. An assignment of "judgment, and of all sum and sums of money that may be had or obtained by means thereof, or on any proceedings to be had thereupon,' transfers to the assignee a cause of action against the Sheriff on his liability as bail for a defendant arrested by him in the action. 6 Duer, 182, 1859; Gallarati v. Orser, 4 Bosw. 94.

57. A receiver of the property of a judgment debtor may maintain an action against the debtor himself, for a conversion of property the title to which had vested in the receiver. 5 Seld. 142, 1858; Gardner v. Smith, 29 Barb. 68.

58. After a receiver of an insolvent railroad corporation has been appointed, and an order made restraining proceedings against the company by any creditor, a creditor cannot bring an action under section ten of the General Railroad Act against a stockholder whose subscription is unpaid, to enforce his personal liability. The right of action for unpaid subscriptions is transferred to the receiver by his appointment, and an action thereon by a creditor is in effect an action against the company. Rankin v. Elliott, 16 N. Y. (2 Smith) 577.

59. When assignee cannot sue. - Where goods have been wrongfully taken from the possession of one who held a part of them as consignee and a part as owner, and he assigns them and the right to take possession to the consignor and former owner, the assignee cannot maintain an action to recover possession from the wrong-doer, he not having the possession of the property. Nash v. Fredericks, 12 Abbott, 147.

60. One who has conveyed real estate to another by deed, and who has a right of action against the grantee to have the conveyance declared void, and set aside on the ground of fraud, undue influence, inadequacy of price, etc., cannot without possession and without any present estate or interest, assign such right of action to another so as to enable the assignee to bring an action in his own name to set aside the conveyance. McMahon v. Allen, 34 Barb. 56.

61. The provision of the Code, that every action must be prosecuted in the name of the real party in interest, was not intended and has not had the effect to make things in action, or rights of action, assignable, which were not before assignable even in equity, but was intended to give to the assignee of a thing in action, which was assignable in equity, a right to sue in his own name. ld.

62. Where B. sells and delivers to C. certain personal property, with an agreement then made that C. is to resell and redeliver upon B.'s executing and deliver

ing to C. certain notes, and B. subsequently tenders these notes and demands the property, and C. refuses to take the notes or surrender the property, and the whole transaction on the part of C. was a fraud, his intention being to get hold of and keep the property: Held, that the tender of the notes did not vest the ownership thereof in C., and that he cannot sue on them; that the fraud takes the case out of the rule, that a tender of specific personal property vests the title thereto in the tenderee. Lamott v. Butler, 18 Cal. 32.

63. A party who sues as assignee cannot maintain his title by proof of an assignment made after suit brought. Garrigue v. Loescher, 3 Bosw. 578.

64. An assignment by one of two partners, of all his right and interest in a partnership demand, will not enable the assignee alone to maintain an action on the demand. Mills v. Pearson, 2 Hill. 16.

65. A mere assignment of the chattel, after conversion by the defendant, does not pass the cause of action for the conversion so as to enable the assignee to sue thereon. Hill v. Covell, 1 Comst. 522. The assignee in such case can maintain no action for conversion, except for a conversion subsequent to the assignment. Duell v. Cudlipp, 1 Hill. 166. To the same effect is Sherman v. Elder, 1 Id. 178.

66. Agent, when he may sue.-The note sued on payable to the plaintiff, although it describes him as agent for another, does not take away the right of the agent to sue in his own name at law. Ord v. McKee, 5 Cal. 515.

67. Where two persons were employed by the claimants of a tract of land under a Mexican grant, as agents to procure a confirmation of the grant in the United States, and services are thus rendered, it is individual in its character, and separate actions may be maintained by such agent for his expenses thus incurred. Connor v. Hutchinson, 12 Cal. 127.

68. An agent to whom a check is made payable in his own name may maintain an action thereon, though the debt be due to his principal. 2 Bosw. 471; Fish v. Jacobson, 5 Bosw. 514.

69. A Sheriff who has attached property belonging to the defendant in the hands of a third person, may bring any action necessary to obtain possession of such property. Kelly v. Brensing, 32 Barb. 601.

70. Where the principals are minors, it was held that the agent might sue upon a contract made with him as such, and by which he was personally bound, without any assignment from the principals. Nelson v. Nixon, 13 Abbott, 104.

71. The uncontroverted allegations in a complaint of a sale of goods by the plaintiff as the factor or agent of his principal, and the promise of the defendant to pay the plaintiff for them, are sufficient to vest the plaintiff with a right to collect and sue for the price in his own name. Reilly v. Cook, 22 How. 93.

72. The agent of a foreign corporation may maintain an action in his own name upon a subscription note payable to the plaintiff, as "executive agent of the company for stock of the corporation to be issued to the signer." Considerant v. Brisbane, 22 N. Y. 389.

73. Agent, when he cannot sue.-An agent, ordinarily, cannot sue in his own name in respect to the subject matter of his agency, and this rule applies to consignees and indorsees of bills of lading, when they are in truth but the agents of the shippers. Lineker v. Ayeshford, 1 Cal. 75. H. purchased goods of P. and M., which were consigned to P., an agent; H. failing to pay for the goods upon delivery, P. brought an action to recover the purchase money; Held, that P. had no right of action in his own name. Semble, if the purchase had been made directly from P. although the goods belonged to another, the rule would be different. Phillips v. Henshaw, 5 Cal. 502.

74. A., of Liverpool, shipped certain goods to San Francisco, and indorsed the bills of lading to the plaintiff, his agent, and became a bankrupt before the arrival of the goods: Held, it appearing on the face of the complaint that the plaintiff was a mere naked agent of the shippers, that he could not recover the goods in his own name of the master of the ship, who claimed to hold the goods for the assignment in bankruptcy of A. Lineker v. Ayeshford, 1 Cal. 78.

75. The indorsement of a bill of lading prima facie vests the property in the goods mentioned therein in the indorsee, but a bill of lading is not a negotiable instrument, so far as to enable an indorsee who has no property, either general or special, in the goods, and no lien therein for advance or otherwise, to sue the mas

ter of the ship in his own name for nondelivery of the goods, when it appears on the face of the complaint that the plaintiff, the indorsee, is a mere naked agent of the shippers. Id.

76. Agent, when he shall not be sued.-A public officer who stands in the relation of agent of the government, or of the public, is not personally liable upon contracts made by him as such officer, and within the scope of his legitimate duties; but this reason does not apply when neither the government nor the public in any way can be considered or held responsible for a contract made by a person, although a public officer. Dwinelle v. Henriquez, 1 Cal. 392

77. Where a party makes a purchase from an innocent agent, who afterwards parts with the money of his principal, and it afterwards turns out that such purchase avails the purchaser nothing: Held, that no legal right of complaint will lie against the agent. Engels v. Heatly, 5 Cal. 136.

78. If on the face of an instrument not under seal, executed by an agent, with competent authority, by signing his own name simply, it appears that the agent executed it in behalf of the principal, the principal and not the agent is bound. Haskell v, Cornish, 13 Cal. 45.

79. Unliquidated demand or account, what is.-Where a reward is offered in the usual way in the public newspapers, or by handbills, for the arrest and delivery to the proper authorities of persons suspected of crime, and a party accordingly arrests and delivers the persons suspected, who are tried and convicted: Held, that the demand for the amount of the reward is neither an "unliquidated demand," nor an "account," within the fourth section of the Practice Act, and hence that the assignor of such demand is a competent witness for the assignee in suit against the persons offering the reward. Rochester v. See Yup Company, 18

Cal. 413.

80. If in any case one partner can assign to another partner his interest in a firm claim and then become a witness for him, he cannot, when the claim is for goods sold and delivered, because this is an unliquidated demand within the Practice Act. Cravens v. Dewey, 13 Cal. 40.

81. An account in writing, examined and signed by the parties, will be deemed a stated account, notwithstanding it contains the ordinary preliminary clause that errors are excepted. Branger v. Chevalier, 9 Cal. 360.

82. Where accounts bear upon their face the words "audited and approved" and "certified to be correct:" Held, that this is sufficient language to create them instruments in writing within the meaning of the statute, and not accounts. Sannickson v. Brown, 5 Cal. 57.

83. When assignor may and may not be a witness. - The assignor of an agreement to pay money for the withdrawal by him of a suit, is a competent witness for the assignee in a suit brought by the latter on the agreement. Gray v. Garrison, 9 Cal. 325.

84. Assignors of unliquidated demands are competent witnesses to prove to the Court the loss of books of original entries and incidental matters auxiliary to the trial of a cause. Caulfield v. Sanders, 17 Cal. 569.

85. Where goods are seized by the Sheriff on an execution against G., and the owners of the goods, so in the Sheriff's hands, assign them to plaintiff who replevins them on the ground of fraud in the original sales, the assignors are competent witnesses for plaintiff. This is not assigning a chose in action, but a sale of specific goods. Coghill v. Boring, 15 Cal. 213; see 13 Id. 40.

86. A guarantor is a competent witness for defendant, as the effect of his testimony is to make plaintiff liable on his guaranty, thus rendering his interest adverse to defendant. Mayo & Brown v. Avery, 18 Cal. 309.

87. The assignor of a demand for money loaned or advanced at various times on an open account, the return of which depends on future conditions, is not a competent witness for the plaintiff in an action by the assignee to recover the amount. Allen v. Citizens' Nav. Co., 5 Cal. 400.

88. Where a reward is offered in the usual way in the public newspapers, or by handbills, for the arrest and delivery to the proper authorities of persons suspected of crime, and a party accordingly arrests and delivers the persons suspected, who are tried and convicted: Held, that the demand for the amount of the reward is neither an unliquidated demand," nor an "account," within the fourth section of

the Practice Act, and hence that the assignor of such demand is a competent witness for the assignee in suit against the persons offering the reward. Rochester v. See Yup Company, 18 Cal. 413.

89. The assignor of an account assigned to some creditors for the benefit of all, though absolute upon its face, yet made with the purpose that some creditors might be preferred in the order of payment, may be a witness to show the consideration upon which the assignment was made in a suit brought by some of the creditors against the assignees. Lockwood v. Canfield, April T. 1862.

90. The objection to a witness need not be only in a suit brought by the assignee. A substantial and a formal assignee stand alike on the same ground. Adams v. Haskell, 8 Cal. 306. The assignor of a claim is incompetent as a witness in favor of the claim when his assignee is a formal party to the record, and equally so when the suit is prosecuted for the immediate benefit of his assignee, though not a party. Id.

91. Where the plaintiff was the assignee of a claim, the written contract upon which it was founded having been destroyed by the assignor before the assignment, it was error to admit the assignor as a witness to prove the contents of the written paper thus destroyed by him. Smith v. Truebody, 2 Cal. 347.

92. An assignment of a cause of action, to be sufficient to enable the assignee to bring action and call the assignor as a witness, must be a fair and bona fide transaction, in which the interest in the claim passes to the assignee for his benefit and not for the use of the assignor. And where it appears that the assignment was merely colorable-made only for the purpose of enabling the assignor to be a witness to make out the case against the defendants-and with the clear intent that the money, if recovered, should be paid to the witness, the witness comes fully within the description of a person for whose immediate benefit the action is prosecuted. Bell v. Drew, 4 E. D. Smith, 59.

93. The master of a vessel having an unsettled account with her owner for his wages-a part of which had been paid by his receipts from the earnings of the vessel-and disbursements on her account, assigned his claim to a third person; the assignee brought an action, and it appeared on the trial that there was a balance due from the defendant: Held, that under the Code the defendant could not require the master to be made party to the action for the purpose of enforcing an accounting. He was a competent witness for either party, and upon his examination the codefendant could have every benefit from his testimony and from the production of books and papers which he could obtain from his accounting as a party. Allen v. Smith, 16 N. Y. (2 Smith) 415.

94. In an action to set aside an assignment for the benefit of creditors on the ground of fraud, the assignor may be permitted to testify as to his actual intent in executing it. Matthews v. Poultney, 33 Barb. 127.

§ 5. Assignment of thing in action not to prejudice.

In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other defense 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.

N. Y. Code, § 112. J. P.

1. Negotiable promissory notes transferred as collateral security. Where a negotiable promissory note, not yet due, is taken bona fide as collateral security for a preexisting debt, it is not subject to any defense existing at the date of the assignment between the original parties. Payne v. Bensley, 8

Cal. 260.

2. Commercial paper, transferred before maturity as collateral security for a preexisting debt, is not subject to the defenses of payer against payce. Robinson V. Smith, 14 Cal. 94.

3. If, when a creditor takes a bill before maturity as collateral security for an antecedent debt, there be any change in the legal rights of the parties in relation to such debt, the creditor becomes a holder for value, and the bill is not subject to the equities between the original parties. Naglee v. Lyman, 14 Cal. 450.

4. Where defendant made and delivered to K. & Co. her note, to be used by them only as collateral security to raise money or get credit, and they so used it, and afterwards took it up from the pledgees: Held, that K. & Co. could not then sue on the note, as it had answered its purpose; and that plaintiff, having taken the note after maturity and upon no new consideration, took it subject to the same defense. Coghlin v. May, 17 Cal. 515.

5. One who purchases a note or bill, drawn, indorsed or accepted by a manufacturing corporation, cannot, without inquiry into their authority to make, or the authority of their officer or agent to bind them by such a contract, rely on the mere fact of the drawing, indorsing or accepting, and claim to be regarded as a bona fide holder for value, without any reference to the question of actual consideration, or to that of the authority of the officer or agent. Farmers' & Mechanics' Bank v. Empire Stone Dressing Co., 10 Abb. 47. Discounting a bill in expectation that it will be accepted as previous similar bills had been, is not discounting it on the faith of an acceptance. Id.

6. One who discounts a bill for value and without notice, before acceptance, though he becomes thereby a bona fide holder as against the drawer, does not thereby become a bona fide holder for value as against the subsequent acceptor. Id. 7. A due bill is a promissory note, within the statute. 10 Wend. 675; 2 Cow. 536; Sackett v. Spencer, 29 Barb. 180.

8. Assignee and indorsee after maturity, right of.-An indorsee, after maturity, takes the same interest that the indorsee had, and his claim is subject to the same legal and equitable defense. Folsom v. Bartlett, 2 Cal. 164.

9. A negotiable note, taken by the holder after its maturity, is taken subject to all subsisting equities between the maker and the payee, but not such as subsisted between the maker and any intermediate holder. Warner v. Wilson, 4 Cal. 309.

10. The maker of a promissory note, held by a corporation, and on the insolv ency of the corporation, passing to a receiver thereof, (appointed to wind up its affairs for the benefit of creditors and stockholders) has the same right to set off against such note in the hands of the receiver which he would have in the hands of the corporation itself. Berry v. Brett, 6 Bosw. 627. The fact that the note has not become payable at the time of the appointment of a receiver, does not affect the rule. Id.

11. In action brought by the assignee of a merchant to recover possession of moneys, etc., from an agent of the assignor, who had notice of the assignment and continued to act for the assignees, said agent cannot set off against the plaintiff's claim debts due to him by the assignor arising after such assignment was made. Crosbie v. Leary, 6 Bosw. 312.

12. Where the plaintiff purchased of S. a note by the defendant, which was over due, and the defendant at the same time held a note against S., which was over due, and which was prosecuted to judgment by the defendant against S., subsequently, the plaintiff brought his action against the defendant on his note: Held, that the defendant could not use the note by S. as a set-off, defense or counter claim, it being merged in the judgment and not a subsisting demand at the time the action was commenced. Nor could he use his judgment, as it was not rendered until after the plaintiff had purchased the note in suit, which was not a demand against S. Lowell v. Lane, 33 Barb. 292.

13. Checks, consideration, defenses.-A check given for a gaming debt is void in the hands of all persons, except a bona fide holder, without notice. Fuller v. Hutchings, 10 Cal. 523.

14. Where the illegal consideration of a check is admitted, it is incumbent on the holder, even if he took it before dishonor, to show that he took it without notice and for value. Id.

15. With a check, the presumption is that it is given upon a valid consideration, but this presumption being rebutted, the necessity is thrown upon the holder of proving that he received it in good faith, without notice of the illegality of the consideration. Id.