15. Mortgage.-A mortgage, independent of the debt it is intended to secure, has no assignable quality: Polhemus v. Trainer, 30 Cal. 685. The assignment of a debt secured by mortgage, in equity, if not in law, carries the mortgage property with it: Hatch v. White, 2 Gall. 152. So, the equitable lien which a vendor of real estate retains upon the property for the unpaid purchase-money is not assignable: Baum v. Grigsby, 21 Cal. 172; Lewis v. Covillaud, 21 Id. 178; Williams v. Younger, Id. 227. But a claim for damages for trespass on land is assignable, and assignee may maintain an action for the same: More v. Massini, 32 Cal. 590.

16. Parties.-Under the California system, an action may be brought in the name of the assignee, as the party beneficially interested: Wheatley v. Strobe, 12 Cal. 98. Where a suit is brought by an equitable assignee, the assignor should be made a party: Nelson v. Johnson, 18 Ind. 329. Where an assignee brings an action in the name of his assignor, the defendant cannot avail himself of the plaintiff's want of interest: La Baume v. Sweeney, 17 Mo. 153. At common law, an assignment of chattels is valid without actual delivery. But as against creditors, the title is not perfect without delivery of possession: Meeker v. Wilson, 1 Gall. 419. It has been held in an action against assignees who are not partners, to recover possession of specific personal property, that the demand must be made upon each person having an interest in order to maintain a joint action: Jessop v. Miller, 1 Keyes, 321.

17. Rights of Assignee.—The assignee takes the interest by assignment subject to all equities and offsets which existed against the assignor at the time of the assignment: Cal Code, sec. 368; see McCabe v. Gray, 20 Cal. 509; Northam v. Gordon, 23 Cal. 255; Truebody v. Jacobson, 2 Cal. 269; Olds v. Cummings, 31 Ill. 188; Fortier v. Darst, 31 Ill. 212; Shaw v. Shaw, 4 Cranch. C. Ct. 715; Shirras v. Craig, 7 Cranch. 34; Kinsman v. Parkhurst, 18 How. U. S. 289; Timms v. Shannon, 19 Md. 296. So of bonds assigned under the statutes of Virginia and Indiana: Scott v. Shreeve, 12 Wheat. 605; Bell v. Nimms, 5 McLean, 110. So of mortgages. A mortgagor may claim the same rights against the assignee of the mortgage as against the mortgagee: Hubbard v. Turner, 2 McLean, 519. So of judgments and decrees: United States v. Sampergac, 7 Pet. 222. So of negotiable paper after it has lost its negotiable character: Gwathmey v. McLane, 3 McLean, 371; Rounsavel v. Scholfield, 2 Cranch. C. Ct. 139. So, the assignee of a partner takes his interest subject to all equities: Nichol v. Mumford, 4 Johus. Ch. 522; Rodriguez v. Hefferman, 5 Id. 417. As to what may be assigned, and that assignee takes subject to all equities, see Parties, chap. iv.

18. Time of Assignment.—One who sues as assignee cannot maintain his title by proof of an assignment made after suit brought: Garrigue v. Loescher, 3 Bosw. 578. A neglect to record an assignment within the statutory period fixed therefor, in cases where an assignment must be recorded, does not make it fraudulent: Denzer v. Mundy, 5 Rob. 636.

[TITLE.]

No. 37.

ii. The Same, where Plaintiff is Trustee.

The plaintiff complains as assignee for the benefit of [state whom], and alleges:

.........

I. [State a cause of action accrued to the assignor.] II. That on the .... day of .. 187., the said C. D. assigned all his property, including the said claim, to the plaintiff, in trust, for the purpose of [state the purpose.] [Demand of Judgment.]

19. Averment of Agency.-A person suing as trustee should make a positive and issuable averment of his trust or agency: Freeman v. Fulton Fire Ins. Co., 13 Abb. Pr. 407.

20. Express Trusts.—A cestui que trust of an express trust has no right of action until the trust is denied or some act is done by the trustee inconsistent with the trust; and until then the Statute of Limitations does not begin to run: White v. Sheldon, 4 Nev. Rep. 280. When a person takes a title in his own name at the request of another, who furnishes the consideration, the former has the right to presume that he is to hold it until a demand is made upon him for it: Id.

21. Mode of Appointment.-One claiming a right as a substituted trustee, under a will, should state all the material facts distinctly in his bill. If the will provides two modes for the appointment of new trustees, he must state in which mode he was appointed: Cruger v. Halliday, 11 Paige, 314.

22. Notice of Trust.-Where an assignment is made to one as trustee of a mercantile firm, and he receives from an obligor a deed for land to members of the firm, and the firm sold the land to their successors in business, some of the original firm being a portion of such successors, the purchasers are chargeable with notice of the trust: Connelly v. Peck, 6 Cal. 348.

23. Trust Deed.-In Nevada, under section 55 of the statute concerning conveyances (Statutes of 1861), a declaration of trust as to land must be by deed or conveyance, in writing, subscribed by the party declaring the same, or by his lawful agent thereunto authorized by writing: Sime v. Howard, 4 Nev. Rep. 473.

24. Trust Fund.-Where the share of one of several cestuis que trust in a trust fund is ascertained and known, he may maintain suit for a breach of trust against the trustee, without joining the other cestuis que trust: Pickering v. De Rochemont, 45 N. H. 67.

25. Who may Assign.-An administrator of an estate in New York may assign a judgment obtained there by intestate against one who has since removed to California: Low v. Burrows, 12 Cal. 181.

[TITLE]

No. 38.

iii. The Same, where Plaintiff is a Devisee.

The plaintiff, as devisee of A. B., deceased, complains, and alleges:

I. [State cause of action accrued to deceased.]

II. That the said A. B. was seised of the estate hereinbefore mentioned, and that he died on the .... day of ......, 187., at ... and by his last will devised the same to this plaintiff.

[Demand of Judgment.]

26. Assets, Allegation of.—Where one of several heirs is sued on his promise to pay the debt of the ancestor, the plaintiff need not allege that the defendant or heirs had assets: Elling v. Vanderlyn, 4 Johns. 237. Where the will by construction shows an intention to charge the real estate with the payment of a legacy, it is not necessary to aver in the bill a deficiency of personal assets: Lewis v. Darling, 16 How. U. S. 1. The above form of allegation is sufficient on demurrer: Spier v. Robinson, 9 How. Pr. 325.

No. 39.

3

[TITLE.]

iv. By an Assignee for the Benefit of Creditors.

The plaintiff, as assignee for the benefit of the creditors. of...... complains of the defendant, and alleges:

.........

. . . . .

I. [State a cause of action accrued to the assignor.] II. That on the.....day of. ......., 187.., at... the said..... assigned all his property, including the said claim, to the plaintiff [in trust for the purpose of paying all his debts].

[Demand of Judgment.]

27. Assignee as Trustee.-An assignee for the benefit of creditors is a trustee. He must allege in his complaint that he sues as such, or the court will not relieve him from payment of costs in case he fails in the action: Murray v. Hendrickson, 6 Abb. Pr. 96; 1 Bosw. 635. For any other purpose this allegation is unnecessary, as he is assignee of an express trust, has the entire legal title, and may sue in his own name without referring to his character as assignee: Butterfield v. Macomber, 22 How. Pr. 150. But an assignment by a creditor of a portion of a debt does not make the assignee joint owner of the whole, and he is not a necessary party in a suit for its recovery: Leese v. Sherwood, 21 Cal. 152.

28. Bankruptcy.--Proceedings in bankruptcy do not affect the previously acquired right of an assignee of a chose in action to sue in the bankrupt's name: Hayes v. Pike, 17 N. H. 564. In Connecticut, the Insolvent Act of 1853 provides that all the property of the debtor shall be vested in the trustee, and that the trustee may sue in his own name on all choses in action: Hart v. Stone, 30 Conn. 94.

29. Title to Property.-It is irregular to allege that the demand is the property of the assignor, or that the defendant is indebted thereon to the assignor: Palmer v. Smedley, 28 Barb. 468; S. C., 6 Abb. Pr. 205; compare Myers v. Machado, Id. 198; S. C., 14 How. Pr. 149.

30. Who may Assign.-One partner of a firm, sole manager, his copartners being absent at a great distance, may assign the firm property, in trust, for the benefit of creditors, if necessary for their protection: Forbes v Scannell, 13 Cal. 242.

The plaintiffs complain, and allege:

I. That the property hereinafter mentioned and described is owned in common by the plaintiffs. II. [State cause of action.]

[Demand of Judgment.]

1. Association.-Associations, as such, are not known in California, as under the laws of this State associations for all purposes are incorporated, and have power to sue and be sued under the corporation laws of California. In New York, however, it appears that associations of persons consisting of seven members and upwards, are invested by law with certain rights and privileges, one of which is the capacity to sue.

2. May Maintain Actions.-Tenants in common may maintain action for the diversion of water: Parke v. Kilham, 8 Cal. 79. Or they may sue jointly to recover possession of their several undivided interests in a mine: Goller v. Fett, 30 Cal. 481. One tenant in common can recover possession of the entire premises against a mere trespasser, without joining his co-tenants as plaintiffs: Treat v. Reilly, 35 Cal. 129.

3. Right of Possession.-One tenant in common has a right of enjoyment of the common property, and cannot possess in severalty before partition: Tevis v. Hicks, 38 Cal. 234. And each and every one of them has a right to enter upon and occupy the whole of the common lands and every part thereof: Tevis v. Hicks, supra; citing Carpentier v. Webster, 27 Cal. 545. Several persons owning a tract of mining claims, as tenants in common, acting under a company name, cannot, in the name of the company, take or hold the interest of any one or more by forfeiture: Wiseman v. McNulty, 25 Cal. 230; Dutch Flat Co. v. Mooney, 12 Id. 534.

4. Services. A tenant in common of lands, employed as agent by common agreement between himself and co-tenant, to take charge of the land, make sales thereof at certain prices, receiving a commission of five per cent. on sales, may sue his co-tenant for services in respect to the land outside of selling it: Thompson v. Salmon, 18 Cal. 632.

5. Share of Profits of Estate.-In an action by a tenant in common against his co-tenant, in the sole possession of the premises, to recover a share of the profits of the estate, a complaint which avers a tenancy in common between the parties; the sole and exclusive possession of the premises by the defendant; the receipt by him of the rents, issues and profits thereof; a demand by the plaintiff of an account of the same, and the payment of his share; the defendant's refusal; and that the rents, issues and profits amount to $84,000, is insufficient to support the action: Pico v. Columbet, 12 Cal. 414. The action is a common law action of account; and, viewed in this light, the complaint should aver that the defendant occupied the premises

1

upon an agreement with the plaintiff, as receiver or bailee of his share of the rents and profits. It is essential to a recovery that it be alleged: Pico v. Columbet, 12 Cal. 414.

6. When One may Sue.-One tenant in common may sue a party in possession by adverse claim, and recover the premises: Collier v. Corbett, 15 Cal. 183; see Stark v. Barrett, 15 Cal. 361. Or he may sue alone for his moiety of the estate: Covillaud v. Tanner, 7 Cal. 38. A tenant in common may maintain a bill in equity against his co-tenant who has exclusively occupied a sal well and works, and a coal mine, the common property, for an accou n rents and profits. The defendant in such case is liable for “receiving more than comes to his just share or proportion," under St. 4 Anne, ch. 16, sec. 27; Earley v. Friend, 16 Gratt. 21; see Parties, Chap. iv. As to trover by tenant in common against his co-tenant, see Hewlett v. Owens, 51 Cal. 570. If two are tenants in common of personal property, and the Sheriff in an action against one of them attaches his interest in the common property, he may take all the property into his possession without being guilty of a conversion of the other tenant's share: Veach v. Adams, 51 Cal. 609.

The plaintiff complains, and alleges:

I. That it is a corporation organized and existing under the laws of the State of Nevada, for the purpose of [here state the purpose] and is doing business as such in its said corporate name.

II. [State the cause of action.]

[Demand of Judgment.]

1. Capacity. A foreign corporation must allege its corporate character in the complaint: Waterville Manfg. Co. v. Bryan, 14 Barb. 182; Connecticut Bank v. Smith, 9 Abb. Pr. 175; see, contra, Holyoke Bank v. Haskins, 4 Sandf. 675. It seems that if the plaintiff sues in a corporate name, but neglects to allege its corporate character, the complaint is demurrable upon the ground that it shows upon its face that the plaintiff has not legal capacity to sue: Bank of Ilavana v. Wickham, 7 Abb. Pr. 134. But the objection is