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.

Possession of a negotiable bill of exchange or promissory note, is presumptive evidence of title. Mottram v. Mills, 1 Sand. S. C. R., 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 Bank v. Rogers, 2 Code Rep. 45; 4 Pr. R. 63.

But it has been said that bonds taken in the name of the people of the State should be prosecuted in the name of the people, and not in the name of the party in interest. Bos v. Seaman, 2 Code Rep. 1.

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

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

The assignee of a mortgage takes it subject to all the existing equities between the mortgagor and mortgagee, and among others, the right of set off. Niagara Bank v. Roosevelt, 9 Cow., 409; and see, 10 Paige, 369; 3 Beav. R., 357; and all liens ; Taylor v. Bates, 5 Con., 376; and see King v. Lindsay, 3 Iredell's Eq. R., 77; McFarlane v. Griffith, 4 Wash. C. C., 584. Ballard v. Stephenson, 7 Mon., 365. Mayos v. Giles, 1 Munf., 533. 6 Geo. R., 119. 1 Paige, 319. 2 Johns. Ch. R., 47. 1 Dev. and Batt., 14. 2 Wash., 255. 3 Paige, 365. 6 Munf., 316. But the assignée is not affected by the equity of a third party, not a party to the bond, and of whose right he had no notice. Moore v. Holcomb, 3 Leigh, 597.

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. S. C. R., 23.

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. S. C. R., 40.

In Beckwith v. Union Bank (4 Sand. S. C. R., 610), Oakley, Ch. J, in delivering the opinion of the court, says: "Under the former 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 assiguee 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."

"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 section."

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.

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 elaiming under him. 2 Phill. Ev. (Cow. & Hill's Ed.), note 446, pp. 337, 644, 663. See Brown v. McGraw, 12 Sme. & M., 267. Grand Gulf Bank v. Wood, ib., 482.

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.

An assignee of a right of action may issue an attachment (1 Hill, 482), and prosecute proceedings supplementary to execution. 1 Code Rep. N. S., 75, 91, 232.

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.

If an action be brought in the name of the 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 aud 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.

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. S. C. R., 706.

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

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 may have been made with, or to, any of their predecessors in office in their individual names or otherwise. But in all cases the action should be brought in the name of the officer, with the addition of his name of office, and not merely in the name of the office. 2 R. S., 569, s. 107. Supervisors of Galway v. Stimson, 4 Hill, 136.

Any joint-stock company, or association, 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. Laws of 1849, cap. 258. p. 389, s. 1. By sections 2, 3, and 4, it is provided, that no actions so commenced shall abate by the death, removal, or resignation of such president or treasurer, or the death, or legal incapacity of any shareholder or associate, but in case of the death of the president or treasurer so sued, and pending the action, the same may be continued by or against his successor. That the president or treasurer so sued is not to be personally liable, except as otherwise liable as a shareholder. That after judgment obtained against any joint stock company or association in an action against the president or treasurer, the plaintiff may sue all or any of the shareholders therein individually, or may in the first instance sue the individual shareholders; but if it appear that the suit is brought against the individual members to vexatiously and oppressively enhance costs, the court shall not allow more costs than could have been recoverable if one action only had been against the president and treasurer. By laws of 1851, cap. 455, p. 838, the above law is extended to any company or association, composed of not less than seven persons, who are owners, or who have an interest in any property, right of action or demand, jointly, or in common, or who may be liable to any action on account of such ownership or interest; and the suits and proceedings authorized by the said law [of 1849], may be brought and maintained in the manner therein provided, as well for any cause of action theretofore existing, as for any that might thereafter accrue.

As to actions by and against limited partners or partnerships. See, 1 R.S. [764] 753. As to actions against shareholders and stockholders in dissolved companies for manufacturing purposes, see 3 R. S., 3d ed., 262.

On a promissory note given to an executor or administrator, on account of the decedent's estate, he may sue either individually or in his representative character. Bright v. Currie, 10 N. Y. Leg. Obs., 104.

An action cannot be brought against a lunatic, judicially declared such, without an application to the court. Soverhill v. Dickson, 5 Pr. R., 109.

By laws of 1845, p. 91. cap. 112. sec. 2, it is enacted, that "receivers and committees of lunatics and habitual drunkards, appointed by any order of the court of chancery, may sue in their own names for any debt, claim, or demand, transferred to them, or to the possession or control of which they are entitled as such receiver or committee, and when ordered or authorized to sell such demands, the purchaser thereof may sue and recover therefor in his own name, but shall give such security for costs to the defendant as the court in which such suit is brought shall direct." In all cases other than those expressly provided for by statute, the action must be in the name of the lunatic or idiot, by his next friend. McKillip v. McKillip, 8 Barb. S. C. R., 552. Semble, an habitual drunkard may bring an action in his own name without a next friend. It seems that actions to recover real property of idiots, lunatics, &c., must be in the name of such idiot, lunatic, &c.; Lane v. Schemerhorn, 1 Hill, 97. Petrie v. Shoemaker, 24 Wend., 85.

Receivers appointed pursuant to sections 244 and 298 of the code and rule 77 of the supreme court, and sheriff's in the cases mentioned in section 252 of the code, may sue in their own names.

In equity, idiots and lunatics sue by their committees; and where a bill was filed in the name of a person as plaintiff who was in a state of mental incapacity, it was ordered to be taken off the file. Wartnaby v. Wartnaby, 1 Jac. R, 377. As to when the lunatic need and need not be joined as a plaintiff with his committee, see

Fuller v. Lance, 1 C. C., 18, n.; Att. Gen. v. Woolwich, Ib., 135; Ortley.v. Messerve, 7. J. C. R., 139; and it is said that the code "does not apply to persons under mental disability in whose names the committee of their person or estate prosecute as usual," it is presumed with or without joining the name of the individuals who are of nonsane understanding. Mitf. Eq. pl. by Moulton 31. (n.)

Persons incapable of acting for themselves, though not idiots, or lunatics, or infants, have been permitted to sue by their next friend. Cur. Can. 468; Wyatts, P. R. 272. Sackville v. Ayleworth, 1 Vern. 105. Re Barker, 2 Johns. Ch. Č. 232. Malin v. Malin, Ib. 238.

Whether it is necessary or proper to make an idiot or lunatic a joint defendant with his committee in suits relating to such idiot or lunatic, is vexata questio. See Brasher's Ex'ors v. Van Cortland, 2 John. Ch. C., 242.

Suits by common informers, are to be in the name of informer. 2 R. S. 394, s. 5. See also notes to sections iii., 114, 115 and 118 of this code.

§ 114. [94.] (Amended 1851.) Action by married woman.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 an 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 shail prosecute or defend by her next friend.

The amendment is the addition of the part in italic.

Under this section prior to amendment, it was held, that although in an action concerning her separate property a married woman might sue alone, yet where in such an action, the husband was joined as a co-plaintiff, such joinder was no ground for a demurrer, Van Buren v. Cockburn, 2 Code Rep., 63.

And in an action against a husband and wife to foreclose a mortgage and enforce payment of a bond executed by them, to secure the purchase money of premises conveyed to the wife subsequent to April, 1848, held, that there was no misjoinder of parties nor uniting of incompatible causes of action, although the wife was not liable on the bond in case of a deficiency on sale. The bond was void as to the wife, but good as to the husband. The wife was a necessary party because the legal estate was in her, and the husband was a proper party because of his liability on the bond in case of a deficiency on sale, and both were the mortgagors. Conde v. Shepherd, 4 Pr. R., 75. Conde v. Nelson. 2 Code Rep., 58.

The supreme court in the first judicial district, held, that though a married woman might sue alone in respect to her separate property, yet she could sue only by her next friend, who must be a person of sufficient substance to be responsible for costs. Coit v. Coit, 2 Code Rep., 94. 3 Code Rep., 23. 4 Pr. R., 232. Confirmed on appeal, 6 Ib. 53.

And that it was only in cases of suits for an absolute divorce, where a wife is by statute allowed to sue in her own name, that she can prosecute a suit without a next friend. Ib.

The objection that a married woman has sued in her own name without a next friend, may be taken at any stage of the suit. Ib.

In Forrest v. Forrest, 3 Code Rep., 254, Edmonds, J., was asked to re-consider the decision in the case of Coit v. Coit, but he refused to do so, and said, that case is the law of this court, and of this case, and held that a next friend was necessary in an action by the wife for a divorce; but in the sixth judicial district, it was held that under this section the wife might bring a suit alone without a next friend against her husband for a limited divorce, for cruel treatment. Tippel v. Tippel, 3 Code Rep., 40. 4 Pr. R., 336. And the same opinion is said to have been entertained by all the justices of

the supreme court in the eighth judicial district. Newman v. Newman, 3 Code Rep., 183. And in that case it was said, that in all cases of an action by a wife against her husband, she may sue alone, under this section, without a next friend. Ib.

The superior court for the city of New-York, also held that a married woman may sue for a limited divorce alone, and without a next friend. Anon. 3 Code Rep., 18. And same case sub nom. Shore v. Shore, 2 Sand., S. C. R., 715.

The amendment appears to aim at settling this vexata questio, and to confirm the views taken by the supreme court in Coit v. Coit, and Forrest v. Forrest, sufra. In Heller v. Heller, 1 Code Rep. N. S., 309, Hand, J., says: "By the code, where the husband is not a co-plaintiff or co defendant with the wife, it seems the wife must now always prosecute or defend by prochein ami. The alteration in section 114, seems to have settled the practice mooted in Shore v. Shore, Tippel v. Tippel, and Coit v. Coit."

In Willis v. Underhill, 6 Pr. R., 396, Roosevelt J., held that, although a married women may sue in respect of her separate property alone, that is without her husband, she cannot sue without a next friend, dubitantur. That if she does sue without a next friend, the objection may be taken at any stage of the suit; but the court at any stage of the suit may in its discretion, and upon terms, allow an appointment to be made, nunc pro tunc.

In Meldora v. Meldora, 4 Sand. S. C. R., 721 ; an action for a divorce a vinculo by husband against the wife, a motion for a reference was made on an affidavit that no auswer had been received, and that the defendant had not appeared. The order was refused, on the ground, that the 114th section requires that a married woman when she cannot be joined with her husband, shall prosecute or defend by her next friend; and that there could be no proceeding in such a suit against her, after the service of the summons, until her next friend had been appointed; and that when the appointment was not made on her own application, it may be made by the court, as in the case of an infant defendant upon the application of the plaintiff. An order for the appointment of a next friend, for the wife to defend a suit by her husband for an absolute divorce, was refused on an ex parte motion. It was there said, that the next friend required by the code, takes the place of the former guardian, ad litem, and should be appointed in the same way; and as one reason why the motion should have been made on notice, Jus ice Hand says, "The plaintiff should have an opportunity to know why the suit is defended by a guardian [next friend] instead of the party." This seems a very insufficient reason, as if the law requires a married woman to defend by next friend, the husband suing his wife must be presumed to know why she appears by a next friend. The circumstances in Heller v. Heller, were peculiar; and we suppose the practice in ordinary cases to be, that, an order for the appointment of a next friend to defend, will be granted on a motion ex parte and without notice.

Under the former practice in Chancery, in a suit against husband and wife, if no order to answer separately had been obtained, the husband was bound to put in a joint answer for himself and wife, and if without such order the husband put in a separate answer it was irregular, and on motion would be ordered to be taken off the file. Leavett v. Cruger, 1 Paige, 421. Bilton v. Bennett, 4 Sim., 17. Where the husband and wife were sued, the husband, on an affidavit that he had no control over his wife, might obtain an order to answer separately. 1 Barb. Ch. Pr., 87. Also, where the wife refused to join with the husband, he might obtain an order to answer separately. Leavett v. Cruger, 1 Paige, 421.

The wife might obtain an order to answer separately in the following cases: where she claimed au interest adverse to her husband-where the husband was a defendant in right of the wife-where she lived separate from him--or disapproved the defense he intended to make-or, where he was out of the jurisdiction. Anon. 2 Eq. Ca. Abr., 66. 1 Dan. Ch. Pr., 510. 1 Smith Ch. Pr., 253-so where she denied that she was the wife of the defendant alleged to be her husband. Wyburn v. Blount, 1 Dick. 155; and, under the code, as before, a woman cannot answer separately from her husband without leave of the court, except under special circumstances, as if he be a alien enemy, &c. Newcomb v. Keteltas, 2 Code Rep, 152. The leave to answer separately, was obtained by motion, ou notice, Gary v. Whittingham, 1 Sim. and Stu. 163; and unless leave was obtained the separate answer of the wife might, on the application of the plaintiff, be ordered off the file.