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There shall be in this State but one form of civil actions, for the enforcement or protection of private rights, and the redress or prevention of private wrongs.
N. Y. Code, g 69. Applicable to Justices' Courts.
1. But one form of civil actions.-The act that declares “there shall be bat one form of civil actions,” extends only to the form and to the pleadings, dispensing with technicalities in the statement of the cause of action and defense, without regard to ancient forms, whether of assumpsit, trespass or ejectment, etc. But the distinction between these actions has not been abolished. So the distinction between law and equity continues as marked as ever, though there is no difference in the form of a bill in chancery and a common law declaration under our system. De Witt v. Hays, 2 Cal. 463.
2. Under our system there is but one form of actions; the statute makes no distinction in matters of form between actions of contract and those of tort, and relief is administered without reference to the technical and artificial rules of the common law. Jones v. Steamship Cortes, 17 Cal. 487.
3. All matters arising and constituting part of the same transaction may be litigated in the same action. Every action under our system may be termed an action on the case, and any ground of relief which can be regarded as part of the case may be included in the action. Id. But the general principles which govern such actions are retained. Lubert v. Chauviteau, 3 Cal. 463.
4. There is but one form of civil actions in this State, and all the forms of pleading, and the rules by which their sufficiency is to be determined, are prescribed by the Practice Act. Our system requires the facts to be alleged as they exist, and repudiates all fictions. Payne : Dewey v. Treadwell, 16 Cal. 220. And the old rules of chancery pleadings are superseded by the Practice Act. Cordier v. Schloss & Heilbroner, 12 Cal. 143.
5. Under the Practice Act, while the mere forms of proceedings are simplified, all that is substantial in the body of the law is preserved to give certainty and logical conclusiveness as a science. Sampson v. Shaeffer, 3 Cal. 196.
6. Under the Practice of 1850, the rules of the old system of pleading and practice, whether legal or equitable, should be applied, irrespective of former technical distinctions, to all actions under the new system, where they may be properly applied, and are not inconsistent with statutory provisions. Rowe v. Chandler of Dennison, 1 Cal. 167.
7. Probate proceedings are not "civil actions ” within the meaning of the Practice Act. Estate of C. G. Scott, 15 Cal. 220.
$ 2. Parties to an action, how designated.
In such action the party complaining shall be known as the plaintiff, and the adverse party as the defendant.
N. Y. Code, $ 70. J. P.
§ 3. Special issues not made by the pleadings, how tried.
When a question of fact not put in issue by the pleadings is to be tried by a jury, an order for the trial may be made, stating distinctly and plainly the question of fact to be tried ; and such order shall be the only authority necessary for a trial.
$ 4. Actions to be in the name of the real party in interest.
[1851, 1855.] Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in this act; but in suits brought by the assignee of an account, unliquidated demand, or thing in action not arising out of contract, assigned subsequently to the first day of July, 1854, the assignor shall not be a witness on behalf of the plaintiff.
N. Y. Code, ý 111; Van Sant. Eq. Pr. 72; Thing in Action, see Voorh. N. Y. Code, 547. J. P.
1. Construction of this section.—The language of section four of the Practice Act, as amended by the Act of 1855, is construed to mean a thing in action not arising out of express contracts, and even this construction is derived by implication, for there is no statute which directly gives the right, or directly repeals the former rule. Oliver v. Walsh, 6 Cal. 456.
2. This section is made subject to section six, which creates the exceptions to the general rule. Id.
REAL PARTY IN INTEREST. 3. The possession of a promissory note, whether obtained before or after maturity, is prima facie evidence of ownership. The transfer, with or without value, confers upon the holder the right of action; and a consideration need not be proved unless a defense is interposed which would otherwise preclude a recovery. McCann v. Lewis, 9 Cal. 246; 7 Cal. 389.
4. His right to maintain the action cannot be questioned on the ground that it belongs to a third party, except the defendant pleads payment to, or offset against that party. Price v. Dunlap, 5 Cal. 483 ; Gushee v. Leavitt, 5 Cal. 160.
5. Under our system there is but one form of action to enforce private rights, whether legal or equitable, and the action must be in the name of the real party in interest, with certain statutory exceptions, within which cases of assignment do
Wiggins v. McDonald, 18 Cal. 126. 6. Whatever the rule may be under the old system, under our system the right of action is in the party sustaining the injury; för, on a recovery, the other part, if entitled to receive the money at all, and if judgment were had in the name of both, would hold it by right of, and as trustee for, the other; and our Practice Act, for convenience, has given the right to sue to the party beneficially entitled to the fruits of the action. Summers v. Farish, 10 Cal. 347.
7. Formerly, where a bond was given to an officer, state or corporation, suit had to be brought in the name of the party holding the legal title, for the benetit of the persons interested ; but our statute has introduced a new rule, and by the provisions of the Practice Act, the suit must be prosecuted in the name of the real party in interest. Baker v. Bartol, 7 Cal. 551.
8. On an injunction bond given to plaintiff and others as obligees, plaintiff alone may sue, if the property on which the injunction operated was his sole property, and the injury his alone, the complaint averring these facts. Brouner v. Daris, 15 Cal. 11.
9. Where there are several obligees in such an undertaking, promising to pay "said parties enjoined,” etc., suit may be brought in the name of one alone, if he be beneficially entitled to the fruits of the recovery. Prader v. Parkett, 13 Cal. 588.
10. A stranger to a transaction has no right to sue. Cheney v. Palmer, 5 Cal. 131.
11. B. executed two subscription notes, whereby he promised to pay a certain specified sum to V. C., as executive agent of the company, B. G. G. & Co.," a foreign corporation. In an action brought in the name of V.C. upon the notes: Held, Ist, that the contract was between the defendant and the corporation ; that V. C. had no beneficial interest in it, was not bound by it and was not the real party in interest; 2d, that he was “a trustee of an express trust,” within the meaning of
that term as used in and defined by the Code, and as such, could maintain an action upon the notes in his own name. He was a person "in whose name a contract is made for the benefit of another. Considerant v. Brisbane, 22 N. Y. (8 Smith) 389.
12. One who has possession of, and legal title to, anything in action-e. g., a promissory note—is the real party in interest, within section 111 of the Code, though he may have purchased it on agreement to pay for it after its collection. Cummings v. Morris, 3 Bosw. 560.
13. In, and previous to, May, 1849, there existed in New York three incorporated associations for similar objects, viz: the American Protestant Society, whose object it was to diffuse through the United States the principles of the Protestant religion; the Foreign Evangelical Society, whose object it was to promote the moral and religious welfare of the inhabitants of foreign Christian countries; and the Christian Alliance, whose object it was to unite the Christians of all denominations in promoting religious freedom and knowledge in Papal countries. These associations were simultaneously dissolved, and the members of them associated themselves as the American and Foreign Christian Union, whose object was declared to be to diffuse religious liberty and pure Christianity both at home and abroad, where a corrupt Christianity exists. The defendant's testator, who died shortly before the union of these societies, bequeathed a legacy, to be paid in six years from his decease, to the person who, at such time, should act as treasurer of American Protestant Society, the first above named. Held, 1. That the new Society sufficiently represented the other to be entitled to the legacy. 2. that an action to recover it must be brought in the name of the treasurer of the new Society, he being the real party in interest. De Witt v. Chandler, 11 Abbott's R. 459.
14. Causes of action assignable.-An order in the following words : Messrs. F. Huth & Co.—Please hold to the order of William Pope & Sons, of Boston, five hundred pounds sterling of insurance effected on cargo of bark Elvina, and oblige, etc., is an equitable assignment of the funds in the hands, or to come into the hands of the drawees, to the payees. Pope v. IIuth, 14 Cal. 407.
15. A contract not to run boats on a certain line of travel, and on failure to comply with such contract, to pay $15,000, is an instrument in writing, and assignable by our laws. California Steam Nav. Co. v. Wright, 6 Cal. 261 ; 8 Id. 592.
16. An order drawn upon defendant for an amount due from the defendant, is a prima facie assignment of the debt due. Even if it was only for part of a debt, no one could make the obligation but the defendants. McEwen v. Johnson, 7 Cal. 260 ; Wheatley v. Strobe, 12 Id. 97 ; Pope v. Huth, 14 Id. 408. And the drawees having notice of such assignment, are liable to the payees for the amount, without an express promise to pay it. Id.
17. An agreement to pay a certain sum of money to a defendant, if he would withdraw his defense to a suit, is assignable, and such assignment gives a right of action in the name of the assignee. Gray v. Garrison, 9 Cal. 328.
18. A contract upon which an action would lie by the personal representatives of a party thereto, in case of his death, for the enforcement of his rights and remcdies under the same, is legally assignable. Sears v. Conover, 34 Barb. 330. A mere personal right to avoid a deed, on the ground that the grantor has been defrauded, cannot be called a chose in action within the most extended detinition of that phrase. Id.
19. A cause of action to recover money paid under a contract, in excess of the amount due under such contract, on the ground that the over-payment was procured by the defendant by false representations and fraud, is assignable. Sheldon v. Wood, 2 Bosw. 267.
20. A cause of action against a common carrier, for negligence in not delivering property sent by him, is assignable. McKee v. Judd, 2 Kern. 622 ; Rev. Stat. 457, \ 1; Smith v. New York f. New Haven R. R. Co., 16 How. Pr. R. 277.
21. The right of action for money lost at play is assignable. The assignability of things in action is now the rule; nonassignability, the exception. And this exception is confined to wrongs done to the person, the reputation or the feelings of the injured party, and to contracts of a purely personal nature, like promises of marriage. People v. Tioga Common Pleas, 19 Wend. 73 ; Mckee v. Judd, 2 Kern. 722. The right to claim and sue for money or property lost in gaming is clearly not within the principles on which the exception rests.
To take money from a person by gaming is, in a just sense, a wrong donc in his estate.
Such a cause of action, according to all the analogies of the law, is capable of transmission and assignment. Turner v. Warren, 2 Strange, 1079; Bones v. Booth, 2 Wm. Black. 1226 ; Brandon v. Pate, 2 Hen. Black. 308; Brandon v. Sands, 2 Ves. 514; 1859; Juch v. Stoner, 19 N. Y. (5 Smith) 29.
22. A right of action for the conversion of per nal chattels is assignable. (2 Kern. 622.) And whenever a right is vested in one growing out of a contract of any nature, it is assignable ; and if the assertion of the original right involves the establishing of fraud or deceit connected with the action, the right to prove this follows the right to the original cause of action, and vests in the assignee with it. Wescott v. Keder, 4 Bosw. 564.
23. Causes of action not assignable.-A cause of action arising out of a tort is not assignable. Oliver v. Walsh, 6 Cal. 456.
24. A creditor has not the right to assign the debt in parcels, and thus, by splitting up the cause of action, subject his debtor to the costs and expenses of more suits than the parties originally contemplated. Marziou v. Pioche, 8 Cal. 536.
25. Where there is no final settlement of the partnership accounts, and no balance struck, and no express promise on the part of the individual members to pay their ascertained portion of this amount, no action can be maintained therefor in assumpsit, nor can the claim be assigned so that the assignee may sue. Bul. lard v. Kinney, 10 Cal. 63.
26. The right of action which one has, who has been induced by fraud to execute a conveyance and part with possession, is not assignable. The deed being voidahle only, but not void, if it passes all the estate of the grantor, a subsequent grantee cannot maintain an action to set it aside. McMahon v. Allen, 34 Barb. 275.
27. Whether a claim for a balance of account, on a settlement of partnership affairs, is assignable. Spring v. Baker, 1 Id. 526.
28. What constitutes an assignment.-An assignment of an account hy indorsement of the word “assigned,” signed by the owner of the account, is sufficient.
29. The words, "assigned to Ryan and Callaghan," and signed “John Nutt," is a good and sufficient assignment. Ryan v. Maddur, 6 Cal. 247.
30. Any act, amounting to an appropriation of a debt, will constitute an assignment of it; no particular form of transfer is essential. Wiggins v. McDonald, 18 Cal. 126.
31. Defendant being indebted to the E. M. Co., and they to plaintiff, all parties agreed that defendant should pay the amount of his indebtedness to the company to plaintiff: Held, that this was an equitable assignment of the debt, and that the only mode under our practice in which the assignment can be enforced, is by action in the name of the assignee to recover the debt. Id.
32. Under the twelfth section of the act concerning corporations, passed April 22d, 1850, no transfer of stock is good against third parties, unless the transfer bc made upon the books of the company. Weston v. The Bear River Co., 5 Cal. 186.
33. The following order : "Mr. Strobe - Please pay the bearer of these lines two hundred and thirty-six dollars, and charge the same to my account,” it given for a valuable consideration, and for the whole amount of the demand against the drawee, though worthless as a bill, operates as an assignment of the debt or fund against which it is drawn, and after delivery and presentation, the debt due by the drawee could not be reached by attachment. Wheatley v. Strobe, 12 Cal. 92.
34. The assignee of a claim resting in account, in suing for it offered as proof of his title to it the following assignment: (Date.) I sell and transfer this account to William Richardson against David Mead. (Signature.) Held sufficient. It should not be presumed that the assignment was without consideration. 2 Cow. 47.
35. Although there may be an assignment of a chose in action by parol, yet to constitute such an assignment, it must be shown that the owner surrendered all control over it, and had made an absolute appropriation of it. Rupp v. Blanchard, 34 Barb. 627.
36. Where a debtor agrees to assign to his creditor a claim which he has against another, in order to make it a valid agreement, the creditor must relinquish his claim against the debtor, otherwise the agreement will be without consideration, and cannot be construed into even an equitable assignment of the claim. Id.
37. What does not constitute an assignment.-Defendant purchased land of B., and, as part of the consideration, agreed to pay certain debts of B. Neither plaintiff, nor the person to whom the debts were owing, were parties to this agreement, nor did they assent to it or attempt to connect themselves with the transaction prior to this suit. Plaintiff is holder of these debts, and seeks to recover them of defendant: Held, that plaintiff cannot maintain the action—there being no privity between the parties, no novation of the indebtedness, and no assent to the transaction, which might make the agreement an equitable assignment. McLaren v. Hutchinson, 16 Cal. 80.
38. A written assignment is not valid where it was never delivered to the plaintiff; the mere act of signing the assignment, without a delivery, is insufficient. Ritter v. Stevenson, 7 Cal. 389.
39. Where an account is verbally assigned to a creditor, with the understanding that in case he collects it he will credit his claim with a portion thereof, and return the balance to the assignor, but if nothing is received, no sum is to be credited, the assignment is void, and the assignee cannot sue thereon in his own name. Id.
40. When the principal may sue on contracts made with agents.-A principal may sue in his own name on a contract in writing made and signed by his agent without disclosing his principal; but in order to maintain the action, the principal must show the agency, and the power of the agent to bind him at the time. But in such a case, the defendant may make the same defenses against the newly discovered principal as he could against the agent with whom he dealt as principal. Keniz v. Norton, 4 Cal. 358.
41. Under the one hundred and fifty-fourth section of the Act of 1856, (370) the person entitled to recover the penalty is the party who contracts or offers to contract for the transmission of the dispatch. He may, probably, do this by his agent or servant. But when the contract is made by a party as agent of another, in order to give a right of action to the principal, the fact of agency must be shown. Thurn v. Alta Telegraph Co., 15 Cal. 472.
42. A principal has a right to waive a tort against his factor and bring an action to compel him to account, and for the net proceeds arising from the sales, when the plaintiff can only recover the net proceeds of sales effected by him, after deducting necessary charges and commissions. Lubert v. Chauviteau, 3 Cal. 462.
13. The owner of a ship chartered by and in the name of his agent may, although he is not mentioned in the charter party, be shown by extrinsic evidence to be the principal in the contract, and will be allowed to avail himself of its provisions. Brooks v. Minturn, 1 Cal. 482.
44. An action can be maintained by the owner of goods against a carrier in whose custody they are injured, although there is no privity of contract between the owner and the carrier, and notwithstanding the contract was, in fact, made between the carrier and another carrier who undertook the carriage of the goods for the whole distance, and received freight therefor. Wing v. New York and Eric R. R. Co., 1 Hill. 235.
45. When assignor may sue.-By agreement between F., the assignor, and D., the assignee, of leases and other personal property, the latter held it subject to a certain debt to the former. The latter afterwards conveyed it to F., subject to the conditions of the agreement, and as a part of the consideration covenanted to pay the debt; F. transferred it to W., and W. to T. and J., with notice respectively: Held, that the assignor might maintain an action against all the other parties, to have the debt declared a lien on the property and satisfied by a sale of it, and for personal judgment for deficiency against D. and T. IIalsey v. Reed, 9 Paige, 446 ; King v. Whitely, 10 Id. 465; Trotter v. Hughes, 2 Kern. 74.
46. When assignee may sue.-An assignment of a contract as a security for a debt, and also in consideration of a covenant not to sue upon the debt, entitles the assignee to sue on the contract in his own name. Warner v. Warner, 4 Cal. 310.
47. An agreement to pay a certain sum of money to a defendant, if he would withdraw his defense to a suit, is assignable; and such assignment gives a right of action in the name of the assignee. Gray v. Garrison, 9 Cal. 325.
48. Under our statute of April, 1850, the holder of a nonnegotiable note has a right of action, not only against his immediate assignor, but also against previous