rations or to bank notes.-This title shall not affect actions to enforce the payment of bills, notes, or other evidences of debt, issued by moneyed corporations, or issued or put in circulation as money.

§ 109. [89.] (Amended 1849.) Nor to actions against directors, &c., of moneyed corporations or banking associations. Limitation in such cases prescribed. This title shall not affect actions against directors or stockholders of a moneyed corporation, or banking associations, to recover a penalty or forfeiture imposed, or to enforce a liability created by law; but such actions must be brought within six years after the discovery, by the aggrieved party, of the facts upon which the penalty or forfeiture attached, or the liability was created.

§ 110. [90.] (Amended 1849.) Acknowledgment or new promise must be made in writing.-No acknowledgment or promise shall be sufficient evidence of a new or continuing contract, whereby to take the case out of the operation of this title, unless the same be contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest.

The 90th section of the code of 1848, for which this section is substituted, was as follows: "Where the time for commencing an action arising on contract shall have expired, the cause of action shall not be deemed revived by an acknowledgment or new promise, unless the same be in writing subscribed by the party to be charged thereby," and under that provision, where a verbal promise was made after the code of 1848 took effect, to pay a debt which was barred by the statute of limitation before the code went into operation; it was held, that such promise did not revive the cause of action, and that the provisions of section 66 (now 73) had no application to this section. Wadsworth v. Thomas, 3 Code Rep., 227; 7 Barb., S. C. R., 445. Per Gridley, J. The statute had attached when the code of 1848 took effect. After, that and on August 30th, 1848, the defendant promised to pay the notes. But this promise was not in writing, and the defendant insists that within the principle of the 90th [110] section of the code a verbal promise does not revive the cause of action. Upon these facts, two questions are presented for our consideration. 1. Whether upon the true construction of section 90 [110], irrespective of the saving clause contained in section 66 [73], the cause of action was revived. It is contended for the plaintiff, that the new promise is not within section 90 [110], upon the ground that statutes are always to be construed to act prospectively and not retrospectively. There can be no doubt that this proposition, when rightly understood, is sound law. The meaning of it is, that a statute is not to be construed to operate retrospectively, so as to take away a vested right. The rule is so expounded in all the cases cited (7 John., 501; 12 Wend., 490; 8 Id., 661; 5 Hill, 408; i Denio, 128; 10 Wend., 104; Id, 363). To bring the case within this rule, the new promise should have been made before the code took effect. Then, upon the law as it existed when the code went into operation, the plaintiff would have had a vested right of action, to recover the amount of the notes, but there having been no recog. nition of the demand or promise to pay, within six years next before the time when the code became a law, there was no existing vested right. It had been taken away by the statute, and had not been restored by a new promise; and therefore the act was strictly prospective in its operation. It had respect to the manner in which a

right of action might be revived. The plaintiff lost no existing right by the act, but was merely prevented from acquiring one thereafter, except in the matter pointed out in the act. It is true that the opinion delivered by Justice Sutherland, in VanRensselaer v. Livingston, (12 Wend. 490), upon a superficial reading, seems to carry out the doctrine a little farther than the rule above laid down. But the law itself warrants no such conclusion. That was precisely such a case as this would have been had the new promise been made before, instead of after the time when the code took effect.

The decision in Warner v. Griswold (8 Wend. 661), is in principle the same. There is a great variety of cases which show that the rule of construction now in question cannot apply to a case like this. 10 Wend., 365; Id. 104; 17 Id. 329, 2 Hill, 238; 5 Id. 409; 1 ld. 324. See also 1 Kent's Com., 455, 6; Id. 408; 9 2d. ed.

The next question to be considered is, whether section 66 [now 73] of the code excludes the provision contained in section 90 [now 110] from any application to the case under consideration.

Section 90 [now 110] is certainly a part of the title mentioned in section 66 [now 73]; and yet it is very doubtful whether it is so within the spirit and true meaning of the enactment. The fact that it is within the words of the enactment literally interpreted, is not conclusive upon this point. "The real intention, when accurately ascertained, will always prevail over the literal sense of the terms. (1 Kent's Com. 462.) The title of the code spoken of treats "Of the time of commencing actions," and is intended as a substitute for the old statute of limitations.

When it was decided that the forms of actions should be abolished, it became necessary to restrict this statute; for the provisions of the old act limited actions by name, as debt, assumpsit, case, &c. And in construction of this part of the statute some other changes were made in the times limited for the commencement of certain actions. It was probably these limitations of time which the framers of the act intended should not apply to actions already commenced, or to cases wherein the right of action had already accrued. The provision is analogous to that contained in the 45th section of 2 R. S., 300. Such was the application of that section, as appears from the cases of Van Hook v. Whitlock, 3 Paige, 416, and Fairbanks v. Wood, 17 Wend., 329, explained in 2 Hill, 238, and 5 Id., 408. We, think, too, that the concluding words of the section in question point with great significance to the class of enactments which the section was intended to embrace. When it is said that "the statute now in force shall be applicable to such cases, according to the subject of the action, and without regard to the form," what else is meant but that the statutes which now limit actions of assault and battery to four years, and actions of assump. sit to six, shall continue applicable to the subjects of those actions (notwithstanding the names and forms of actions are abolished), in all cases where the right of action had accrued?

Again, the enactment applies to such matters only as are now regulated by statute, declaring that the new statute shall not apply, but that the old ones shall. Now, section 90 [110] is a provision entirely new. It is not a substitute for any former enactment existing when the code took effect. Ib.

It is not necessary that an acknowledgment of a debt, in order to take the debt out of the statute of limitations should be made to the creditor himself or his agent. It is sufficient if made to a stranger. Bloodgood v. Bruen, 4 Sand. S. C. R, 427. Watkins v. Stevens, 4 Barb. S. C. R., 168.

See Woodruff v. Moore, 8 Barb. S. C. R.. 171, and Carshore v. Huyck, 6 ib. 583. A payment by one joint, or joint and several, debtor does not revive_the liability of the other. Van Keuren v. Parmelee, 2 Coms., 523. Bogart v. Vermilya, 3 Code Rep. 142. 1 Code Rep.,, N. S., 212.

SECTION 111.

TITLE III.

Parties to Civil Actions.*

Party in interest to sue.

112. Assignment of thing in action.

113. Executor or trustee, suits by.

114. Suits by and against married women.
115. Infants, suits by and against.

116

Guardian, how appointed.

117. Who may be plaintiffs.

118. Who may be defendants.

119. One or more may sue or defend for all

120. One action against the different parties to bills and notes.
121.

Action when not to abate.

122. Court to decide controversy, &c., Interpleading.

§ 111. [91.] (Amended 1849-1851.) Action to be by party in interest.-Every action must be prosecuted in the name of the

* The present code (code of 1849), has adopted, with slight modifications, the rule in relation to parties which formerly obtained in courts of equity; and, with the exception in section 113, the suit must be prosecuted in all cases in the name of the party in interest; and the rule which prevailed in equity with the modifications above stated may be very safely applied to cases under the code, per Mason J., in Wallace v. Eaton, 5 Pr. R., 99, 100, and per Parker J., in Hollenbeck v. Van Valkenburgh, (5 Pr. R., 281-284, 1 Code Reports N. S., 33.) "The former chancery practice is now adopted as to making parties." The commissioners in a note to their first report say: "We have intended to leave suitors very much at liberty to choose whom to make defendants and whom to join as plaintiffs. . . . . . This will save the plaintiff from the hazard now encountered of bringing in too many parties except that of paying costs." Comm's. 1st report. It may be proper here to remark that choses in action, except negotiable bills and notes, were not assignable at law, but only in equity. Greenby v. Wilcox, 2 John., R., 1. And in case of an action at law, brought to recover such chose in action, it was necessarily in the name of the assignor, or if dead, his personal representatives, if any; but if there was no executor or administrator of his estate, the assignee might by statute sue in his own name. (2 R. S. 274, s. 5, 2d ed.) Seeley v. Seeley, 2 Hill, 496. See Corbin v. Emerson, 10 Leigh, 663. Bell v. Shrock, 2 B. Munroe, 29. Combs v. Tarlton, ib, 194. Gatewood v. Rucker, 1 Munroe, 22, Sanders v. Murry, 4 Bibb, 458. Allen v. Crockett, ib. 240. Bromley v. Holland, 7 Sumner's Rep., 3 note (c.) Trecothick v. Austin, 4 Mason, 16-41. Hobart v. Andrews, 21 Peck, 526, 531, 532; Story, Eq. Pl., 153. The United States being the assignees was an exception-they might sue in their own name. United States v. White, 2 Hill 59. Now, however, it is presumed that the action in such a case must be in the name of the assignee; but whether or not the assignor should be made a party to the suit is a question that admits of considerable doubt. It is recommended, however, that in such cases the assignor should be made a party defendant and served with a notice of no personal claim under section 131 of this code, which, as amended, applies to all actions, and seems to contemplate that cases will occur, under the present practice as under the practice in the late court of chancery, where it may be advisable to make parties defendants who have a mere nominal interest in the subject matter of the suit. It seems impossible, when view. ing the analogy, of the rules respecting parties contained in this title, to the rules on the same subject in the late court of chancery, to resist the inference that it was the intention of the framers of the code to, in effect, and subject to the express enactments in this title, to introduce the rules in equity practice respecting parties.

real party in interest,except as otherwise provided in section one hundred and thirteen; but this section shall not be deemed 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.

In Kellogg v. Church, 3 Code Rep. 53, it was held under this section, before amendment of 1851, that the right of action for a tort, was assignable, and that the action might be brought in the name of the assignee, or the real party in interest. Although a mere right of action for a tort, is not assignable, yet after the conversion of a chat

With respect to parties to equity suits it has been well observed that they were of three kinds, namely: those who might be parties, those who should be parties, and those who must be parties. The class of those who might be parties, included persons having no real or legal interest, and who were proper or not improper, but not necessary parties; as, for example, the assignor by an absolute and unconditional and voluntary assignment of a judgment or an equity of redemption. Buren v. Crane, 1 Green's C. R., 348. Vreeland v. Loubat, ib., 104, 348. Chester v. King, ib., 405; but in general no one need be nor indeed should be a party, against whom if the action were brought to a hearing no judgment could be rendered. Reimsdyk v. Kane, 1 Gall. R., 383. Vanderpool v. Davenport's Ex'rs, 2 Green's C.R, 122. Where, however, an assignment is involuntary, as if it be made by operation of law, then, unless the law making the assignment otherwise provided, the assignor had to be made a party a suit by the assignee. Sedgwick v. Cleveland, 7 Paige R., 289 Mills v. Hoag, ib., 21.

The class of those who should be made parties, included-all persons legally or beneficially or materially interested in the subject matter and result of the suit. It is not easy, however, to mark the precise difference between those who might and those who should be made parties. It is said that it may be done by limiting the class of those who should be parties to those who have an interest in the event of the suit merely. See King v. Berry's Ex'rs, 2 Green's C. R., 52. Caldwell v. Taggart, 4 Peters, 190. Bank of Alexandria v. Seton, 1 ib., 306. Marshall v. Beverly, 5 Wheat., 313; 4 Cond. R., 660. Williams v. Russell, 19 Pick. R., 162. Wiser v. Blackly, 1 Johns. Ch. R., 438. Smith v. Trenton and Delaware Falls Co., 3 Green's C. R., 505. Crease v. Babcock, 10 Metcalf's R., 531; and many other cases.

The class of those who must be made parties, properly includes all who should be made parties; but the rule as to who should be parties was and still is, it would seem, extremely pliable, and may be molded to further the end of justice. Wendell v. Van Rensselaer, 1 Johns. Ch. R., 349. Story Eq. Pl., ss. 94–96. Hallett v. Hallett, 2 Paige, 15. Cullen v. Queensbury, Bro. C. C. (Perkins' ed.), 101. Willis v. Henderson, 4 Scam., 20. Gilham v. Cairns, Breese, 124. Scott v. Moore, 3 Scam., 316. See sections 117, 118, 119, of this code, and notes thereto.

It seems the prevailing opinion since the passage of the code, that in a suit by the assignee of a chose in action, the assignor is not a necessary party; and we believe it is not now the practice in such cases to make the assignor a party. The correctness, however, of this practice may well be doubted. The distinctions between the principles of law and equity still exist (see note to section 69), and the law did not recognize the assignment of choses in action; and, although equity did, yet it was necessary, even in equity, as a general rule, to make the assignor a party. The code has nowhere expressly changed the law respecting an assignment of a chose in action, except to permit an action to be in the name of the assignee thereof, and without joining the assignor as plaintiff; but he was not ordinarily a plaintiff in a suit in equity, but a defendant, on the fiction that he refused to join as plaintiff; and he might now be made a defendant after a demand pursuant to section 119 of this code, and served with a notice under section 131; and this would seem to be the better course to pursue.

In actions against owners of vessels, &c., difficulty was formerly 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

tel 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.

In Robinson v. Weeks (1 Code Rep. N. S., 311), decided in September, 1851, at a general term of the supreme court, 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. And at a general term of the supreme court at New-York, December, 1851, present

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 of 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.

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 or 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.

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.

A statute of the state of Mississippi makes bonds, bills single, etc., assignable by indorsement, and authorizing the assignee to sue in his own name was held not to require the indorsement of a bond to be under seal, to give the indorsee the right to sue on the bond in his own name. Montgomery v. Dellingham, 3 Sme. and M. 647.

In the Islands of Barbadoes, Bermuda, and Jamaica, the person beneficially interested may sue in his own name. 3 Burge on Colonial and Foreign Law, 565. Statute 14 Geo. 3, c. 28, s. 3. Bermuda Acts, passed 10 May, 1786. And in Ireland, by statutes 9 Geo. 2, c. 5, and 25 Geo 2, c. 14, assignees of judgments, statute staples, and statute merchants, may sue in their own names.

Where an agent made a contract in writing in his own name, and without disclosing his principal, it was held that the principal (being the real party in interest) might sue in his own name for a breach of such contract. Erickson v. Compton, 6 Pr. R.

471.

Where the master of a vessel has merely an equitable interest in her under a contract with the owner for the purchase of a part thereof, the vessel, in the mean time and until the completion of the purchase, to be run for their joint account but entirely subject to the control of the owner, the master has not such an interest as to make him a necessary party to proceedings instituted by the owner for the recovery of freight earned by the vessel. Ward v. Whitney, 3 Sand. S. C. R., 399.

As to costs against parties in interest suing in the name of others. See note to section 112 of this code.