AN ACT

TO REGULATE PROCEEDINGS IN CIVIL CASES IN THE COURTS OF JUSTICE OF THIS STATE.

AS PASSED APRIL 29, 1851, AND AMENDED MAY 18, 1853; MAY 18, 1854; APRIL 28, MAY 4 AND MAY 7, 1855; FEBRUARY 20, 1857; MARCH 24, APRIL 15, 1858.

The practice act is prospective, and not retrospective in its operation.

People v. Hays, 4 Cal., 127.

The People of the State of California represented in Senate and Assembly, do enact as follows:

TITLE I.

OF THE FORM OF CIVIL ACTIONS, AND OF THE PARTIES THERETO.

1. There shall be in this state but one form of civil action, for the enforcement or protection of private rights, and the redress or prevention of private wrongs.

1. "There shall be but one form of civil action," extends only to the form and to the pleadings, dispensing with the technicalities in the statement of the cause of action and defense without regard to ancient forms, whether of assumpsit, trespass, or ejectment, etc. De Witt v. Hays, 2 Cal., 463.

2. There is no longer a distinction between suits at law and in equity, either in the form of the pleadings or the jurisdiction of the court. General Mutual Insurance Co. v. Benson, 5 Duer, 168.

3. Abolishing the forms of pleading does not disturb the common law rule as to the order of introducing matter of defense. Van Buskirk v. Roberts, 14 How. P., 61. 4. The form of an action is determined by the matter set forth in the complaint, and not by the name which the plaintiff may give it. Cornes v. Harris, 1 Coms., 223.

2. In such action the party complaining shall be known as the plaintiff, and the adverse party as the defendant.

1. A person named as defendant and not served with process, is not a party to the action. Robinson v. Frost, 14 Barb., 536.

3.

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 nccessary for a trial.

4. [1854, 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.

1. The assignor cannot be a witness for the assignee. Jones v. Post, 4 Cal., 14; Griffin v. Alsop, ib., 406; Allen v. Citizens' Steam Navigation Co., 6 Cal., 400.

2. The words, "assigned to Ryan and Callaghan," and signed, "Jon. Nutt," is a good and sufficient assignment. Ryan v. Maddux, 6 Cal., 247.

3. A chose in action arising out of a tort, is not assignable, and the assignor is a necessary party plaintiff. Oliver v. Walsh, 6 Cal., 456.

4. The objection to a witness need not be only in a suit brought by the assignee. A substantial and a formal assignee stand alike on the same ground. Adams v. Haskell, 7 Cal., Oct. T.

5. In an action by the assignee of a claim, a demand existing prior to the assignment in favor of defendant and against the assignor, is unavailable as a counter claim. It must be pleaded as a defense. Ferreira v. Depew, 4 Abbott, 131; Dillaye v. Niles,

ib.,

253.

6. A dormant partner is a necessary party to an action by the copartnership. Secor v. Keller, 4 Duer, 416.

7. Every action must be prosecuted in the name of the real party in interest. Camden Bank v. Rodgers, 4 How. Pr., 63.

8. An endorser of negotiable paper is not an assignor within the meaning of the act. Anderson v. Busteed, 5 Duer, 485.

9. No formality is necessary to effect the transfer of a chose in action. Any transaction between the contracting parties, which indicates their intention to pass the beneficial interest in the instrument from one to the other, is sufficient for that purpose; a

debt or claim may be assigned by parol as well as by writing.-2 Sto. Eq., $1047. Heath v. Hull, 4 Taunt., 326; Slaughter v. Faust, 5 Blackf., 380; Montgomery v Dilling ham, 3 Sme. & M., 647; Hastings v. McKinley, 1 E. D. Smith, 273 ; Clark v. Downing, ib.' 406; James v. Chalmers, 5 Sand., 52.

5. 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.

1. If plaintiff was assignee in good faith, and demanded goods within a reasonable time, a notice of the assignment was not necessary to charge defendants, and if they deliver goods to an attaching creditor it is at their own risk; Morgan v. Lowe, 5 Cal.,

325.

2. What is a good consideration in the assignment of a promissory note? Payne v. Bensley, 7 Cal., Oct. T.

3. The admission 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 claiming under him.-2 Phill. Ev., (C. & H. Ed.) note 446, pp. 387, 644, 663. Brown v. Magraw, 12 Sme. & M., 267; Grand Gulf Bank v. Wood, ib., 482.

4. The assignee of a cause of action, assigned after action brought, is liable to the defendant for costs, if he (the assignece) proceed in the action after the assignment, 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. Miller v. Franklin, 20 Wend., 630.

5. Where an assignee having money in bank makes an assignment for the benefit of his creditors, soon after which, but before notice, a bill held by the bank fell due and was charged in the account of insolvent, held that the assignee was entitled to recover it of the bank. Beckwith v. Union Bank of New York, 5 Selden, 211.

6. [1854.] An executor or administrator, or trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person or persons 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.

1. An attorney in fact does not hold the character of trustee, and is not a necessary party to a suit to represent the interest of a principal. Powell v. Ross, 4 Cal., 197. 2. Bonds taken in the name of the people of the state, for the benefit of others should not necessarily be prosecuted in the name of the people, but in that of the party in interest. Baker v. Bartol, 7 Cal., April T.

3. An assignee of a demand in trust to pay certain creditors of the assignor, and