party in interest: establishing, as before stated, the equitable doctrine as to parties, in contradistinction to that formerly prevailing at common law.

It will be seen that, by this section, the old common law doctrine, as to a chose in action being incapable of assignment, is done away with, and the assignee is now the proper party, and the only proper party, to sue thereupon, in all cases arising out of contract. By the last amendment, however, the assignment of causes of action arising out of tort is prohibited for the future. In the Code of 1849 no such provision was contained, and in Kellogg v. Church, 3 C. R. 53, it was held that such a cause was assignable, and that an action might be maintained by the assignee ; but of course this proposition is now no longer law. It would seem from the case of Hall v. Robinson, 2 Comst. 293, that, though a right of action in trover for a chattel is not assignable, a subsequent purchaser of the chattel itself may reclaim, and bring an action to recover it, in his own name.

In The Camden Bank v. Rogers, 4 How. 63, 2 C. R. 45, it was held that a bank might sue in its own name, as real holders of a note made payable to their cashier's order, and never regularly endorsed by him. In Lane v. The Columbus Insurance Company, 2 C. R. 65, the same principle was carried still further, and, although the policy there in question, was effected by an agent in his own name, and with a clause that the loss, if any, was to be paid to him (the agent) "only," the principal was, nevertheless, held to be entitled to maintain an action upon it. In Bos v. Seaman, 2 C. R. 1, the judge "inclined to the belief" that, notwithstanding these provisions, bonds taken in the name of the people of the state ought still to be so prosecuted, and not in the name of the real party in interest; but this opinion is so doubtfully pronounced, and appears so contrary to the general spirit of the measure, that it can be scarcely considered as of positive authority.

It will be seen that, by section 112, the rights of the opposite party to interpose any defence, by set off or otherwise, in respect of a chose in action sued upon by the assignee, are made the subject of express reservation. In the event of any defence of this nature being set up, it would seem that the assignor ought then to be made a party by amendment, in order that the controversy between him and the original defendant may be brought to an issue; though otherwise it would be neither ne

cessary nor proper to include him in the action, inasmuch as, under ordinary circumstances, he neither seeks relief himself, nor is relief sought against him. The law, as it previously stood, in respect to the exemption from this restriction, of negotiable promissory notes or bills transferred bond fide and before maturity, is expressly declared at the end of the section.

By sec. 113, the previous rules, with reference to actions by executors or administrators, and trustees of express trusts, are expressly enacted, and they may now sue, as before, in all cases, without joining their cestui que trust in the action. An administrator, it would seem, may sue on a promissory note given for part of his intestate's estate, either personally, or in his representative capacity, at his election (Bright v. Currie, 10 L. O. 104). By the recent amendments the utmost extent of signification is attributed to the term "trustee of an express trust ;" and all parties, with whom or in whose name a contract is made for the benefit of another, are expressly declared to be included within it. This amendment is in accordance with the views previously laid down in Grinnell v. Schmidt, 2 Sandf. S. C. R. 706; 3 C. R. 19; 8 L. O. 197, on the subject of mercantile factors, or agents, doing business for others, but in their own names: and also in Ward v. Whitney, 3 Sandf. S. C. R. 399, with reference to the managing owner of a vessel, where another party held a mere executory contract, for the purchase of an interest therein.

The law on the subject of suits brought by the committees of lunatics, &c., in their own names, has been before referred to. Receivers, under sections 244 and 299 of the Code, and Rule 81 of the supreme court, and sheriffs, under sec. 232, also possess authority to sue in their own names; though they may likewise sue in the names of the parties for whom they act, or may delegate the right to sue, to such parties, and may therefore be considered as coming within the spirit of section 113.

It by no means follows, however, that, because parties answering the general description of trustees of an express trust, under the extended signification given to the term by the recent amendments, may sue in their own names, the real parties in interest may not also sue in many of such cases; and, in the event of any conflict between two suits of this nature occurring, proceedings instituted by the latter might, in all probability, obtain the preference. The case of a party for whose benefit

a contract has been made, may be mentioned as a type of numberless cases of this description that might arise in practice. The above-cited cases of The Camden Bank v. Rogers, and Lane v. The Columbus Insurance Company, are, in fact, express authority to this effect.

The next point that arises for consideration is with respect to the interests of married women: the provisions of the Code of 1851 on which subject, are as follows:

§ 114. When a married woman is a party, her husband must be joined with her, except that,

1. When the action concerns her separate property, she may sue

alone.

2. When the action is between herself and her husband, she may sue or be sued alone.

But, where her husband cannot be joined with her, as herein provided, she shall prosecute or defend by her next friend.

The above clause is evidently imperative as to the joinder of the husband as co-plaintiff with the wife, in whatever character she may sue, except under the circumstances specially provided for.

The last clause in this section is a recent insertion, made doubtless in consequence of a grave conflict of opinion which had arisen between the superior and supreme courts, and different branches of the latter, as to whether, in cases of controversy between a wife and her husband, the wife, in the absence of any positive statutory provision enabling her to sue in her own name alone, as in the case of absolute divorce, is or is not competent to do so, without the intervention of a next friend.

The former conclusion, i. e. that she may so sue, was come to in the cases of Tippel v. Tippel, 4 How. 346; 3 C. R. 40; Newman v. Newman, 3 C. R. 183; Anon. 3 C. R. 18. Shore v. Shore, 2 Sandf. S. C. R. 715; 8 L. O. 166 (the same case as the last), and was acted upon without question in White v. White, 4 How.

102.

The contrary, i. e. that she cannot so sue, is maintained in Coit v. Coit, 4 How. 232; 2 C. R. 94. Affirmed on appeal, 6 How. 53; 3 C. R. 23; in Forrest v. Forrest, 3 C. R. 254, and in Cook v. Rawdon, 6 How. 233. It will have been seen that the latter view has prevailed, and that, in all cases where her hus band cannot be joined with her, the wife must now prosecute or defend by her next friend, Heller v. Heller, 6 How. 194: 1 C. R.

(N. S.) 309.

Her previous consent is of course necessary be

fore a suit can be properly commenced in her name.

Although, in cases concerning the wife's separate property, she may sue alone, and ought in most cases to do so, her husband may nevertheless join with her in the suit, and his doing so will form no ground for demurrer, Van Buren v. Cockburn, 2 C. R. 63.

So too, where both husband and wife possess different interests in the same subject matter, Conde v. Shephard, 4 How. 75; Conde v. Nelson, 2 C. R. 58. Where the suit is in respect of their joint interests, of course both must be joined as plaintiffs.

The principle of the wife's separate interest was, it may be remarked, fully recognized in Pillow v. Bushnell, 4 How. 9; 2 C. R. 19, an action brought by husband and wife for an assault on the latter, where evidence of the assault being committed with her consent was held to be admissible, and that such consent, if proved, constituted an entire defence. See also Erwin v. Smaller, 2 Sandf. S. C. R. 340; Hasbrouck v. Vandervoort, 9 L. O. 249.

It may not be superfluous either to remark at this point, that, in White v. White, 4 How. 102, before cited, sec. 2 of the act, c. 200, of the laws of 1848, which gives the wife a separate interest in all property whatever, accruing to her during the coverture, was held to be unconstitutional, as far as regarded its retrospective effect, in relation to marriages existing at the time of the passage of that act; but not so as regards its prospective operation.

By sections 115 and 116, the appointment of a guardian is a necessary preliminary in all cases where an infant is a party, and the proceedings in relation to such appointment are prescribed. The latter subject will be considered hereafter. The taking of these measures is an absolutely indispensable preliminary to a suit being commenced. See Hill v. Thacter, 3 How. 407; 2 C. R. 3; before cited.

Where, however, the suit is by husband and wife in respect of their joint property, the wife being an infant, it seems the appointment of a guardian for the wife will not be necessary. The husband appoints an attorney for both. Cook v. Rawdon, 6 How. 233. See also Hulbert v. Newell, 4 How. 93.

In the last place, by sec. 117, it is provided, that all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be properly joined as plaintiffs, except as otherwise provided by the sections above and hereafter

noticed. In Peck v. Elder, 3 Sandf. C. R. 126, it was held, in accordance with this principle, that owners of different tenements affected by the same nuisance, might join as co-plaintiffs in a suit to restrain its continuance. Of course this enactment must be understood to be with this qualification, that the persons so to be joined have all the same interest in the subject matter of the action, and in the relief to be obtained in it. If their rights in relation thereto, are, in any manner, diverse or opposed to each other, they cannot be properly joined as coplaintiffs, notwithstanding they may all possess, to a certain extent, a common title to relief against some other party. They must, under such circumstances, be classified; and one or other of the classes must appear in the character of defendants, the remaining one undertaking the conduct of the suit. It will be seen that, by sec. 119, the joinder, as plaintiffs, of all parties in the same interest, is made positively imperative, unless in the event of their refusal, when, but not otherwise, they may be made defendants.

The provisions of sec. 447, in reference to actions brought by the proper officer, on forfeiture of property to the people of the state, will, of course, be remarked.

The old practice of one or more of a numerous class suing for the benefit of the whole, as in the former creditor's suit, and other similar proceedings, is, as will be seen, expressly provided for by the latter part of sec. 119.

Where any party who ought otherwise to have been joined as a plaintiff will not consent, he may be made a defendant, according to the old chancery practice upon the subject. Sec.

119.

We now come, in the second place, as to who are or are not necessary or proper parties to be made defendants in an action when brought, and many of the general observations before made in reference to parties plaintiffs, are applicable to this branch of the question also.

According to the plan above adopted with reference to parties plaintiffs, it will be sufficient shortly to notice some few of the cases in which the practice still stands as it did before the Code, referring the reader to the works there alluded to, for more detailed information, but entering in detail into the special provisions of the Code on the subject, and the decided cases. thereon.