is an assignee of "an express trust"; has the entire legal title, and may sue in his own name, without referring to his character as assignee. He makes title under the assignment, as in any other case of sale and transfer. The relation which the plaintiff holds to the beneficiaries under the assignment, does not affect his right to sue in his own name on the contract. He acquires his title by bargain and sale, and takes title as in any case of sale and transfer. While he may set out his title, it is not necessary for him so to do when suing negotiable paper; but he may aver ownership and title, the same as if he acquired title by an absolute and bona fide purchase. Therefore, where the plaintiff alleges in the complaint, that he is "the owner and holder" of the notes in suit, and the answer puts that fact in issue, and it appears that the plaintiff holds the notes as assignee of the payee, under a general assignment for the benefit of creditors, he is to be deemed, in law, the holder and owner, so as to entitle him to maintain the action in his own name as plaintiff, without setting out his representative character.

8. Q. Can executors and administrators sue in their own right and in their representative character, at their election?

A. In Bright agt. Currie, 5 Sandf., 435, General Term, March, 1852, PAINE, J., it was decided, that an administrator may sue upon a promissory note made to himself as administrator, or he may sue upon it in his own right. He has a right to frame his suit in either way, and thus attach to it the incidents which belong to either mode of suing. But if he chooses to sue as administrator, the averment that he does so, is not foreign and irrelavant to the case, and cannot be struck out as surplussage.

In Merritt agt. Seaman, 2 Seld., 168, April, 1852, GRIDLEY, J., it was decided, that an executor can maintain a suit, either in his own name, or as executor, upon a note given to him as executor, for a debt due to the testator at the time of his decease. In such action brought by the executor in his own name, the defendant cannot set-off a demand which existed against the testator at the time of his decease.

In Corse agt. Leggett, 25 Barb., 396, General Term, September, 1857, S. B. STRONG, J., it was decided, that executors or trustees either, may sue without joining with them the persons for whose benefit the action is prosecuted. And there is nothing in the Code, or at common law, rendering it necessary to join the beneficiaries as defendants, when the actions are against executors or trustees.

In Tyson agt. Blake, 22 N. Y. R., 558, December, 1860, WELLES, J., it was decided, that where it is the duty of executors, under the will, to preserve the principal of a legacy from consumption or loss, and for that purpose, they may exact security before paying the sum to the person primarily entitled, and such security is given, an action is well brought by the executors to enforce such security.

In Eagle agt. Fox, 8 Abb., 40, General Term, November, 1858, INGRAHAM, J., it was decided, that an executor who, for a consideration proceeding from the estate of the testator, takes a note payable to him as executor, may maintain an action thereon, in his representative capacity. There is no doubt but that an executor who sells goods, or choses in action belonging to the estate which he represents, may collect payment therefor in his capacity of executor. Although he might maintain the action in his own name, he is not necessarily compelled to do so.

In Gulick agt. Gulick, 21 How., 22, General Term, December, 1860, BONNEY, J.. it was decided, that where the defendant was appointed administratrix in California, of the estate of her deceased husband, who was a resident of that state, and there received and took possession of the property and effects of the intestate, with which she subsequently removed to this state; Held, that an action could be sustained against her here on a claim of indebtedness against the estate, which arose from assets received by the intestate in his life time as administrator, appointed in California, of the estate of an intestate, who also resided there. Foreign executors or administrators are liable to be sued here; and they must from the nature of the case, prima facie, be responsible for the assets, which are shown to have been in their possession within this state, no matter where they may have been received. This is the only way in which such executors or administrators, under such circumstances, can be reached.

In Anderson agt. Austin, 34 Barb., 321, General Term, May, 1861, it was decided by the COURT, that the words "personal representatives," used in the statute respecting the foreclosure of mortgages by advertisement (passed in 1844), means "executors or administrators," and not heirs or devisees.

9. Q. Can one partner act as trustec of an express trust for his co-partners?

A. In Secor agt. Keller, 4 Duer, 420, General Term, March, 1855, CAMPBELL, J., it was decided, that one partner cannot act as trustee for his co-partners by virtue of their co-partnership, and hence is not a trustee of an express trust, within the meaning of this

section.

10. Q. Can a registered officer of a foreign banking association, or an executive agent of a foreign corporation, maintain an action here on behalf of the bank or corporation, in his

own name?

A. In Myers agt. Machado, 6 Abb., 198., Special Term, February, 1857, DUER and

HOFFMAN, J. J., it was decided, that where it properly appears that a plaintiff is a registered officer of a foreign banking association, located and doing business in Liverpool, England, and as such, is duly authorized and empowered to commence any and all proceedings at law and equity on behalf of said bank, he may maintain an action here in his own name on behalf of the bank, not only on grounds of international comity, but as trustee of an express trust, within a reasonable interpretation of this section of the Code.

It seems, that the rules as to parties, which were adopted by the Code of Procedure (§§ 111, 113), were adopted mainly from the course in chancery. The principle of representation was as prevalent in that court as the rule of actual interest in the party suing. And it may, perhaps, be safely stated as a rule, that if the defendant will be perfectly protected by responding to the plaintiff, and if there is no necessity or substantial equity, in protecting the fund against the plaintiff himself, if recovered, the whole doctrine of the court is answered. A company or corporation, which appoints, under a law of the country creating it, a party endued with its whole power to sue, gives perfect protection to the defendant in paying, and assents to the reception of the demand by the agent.

In Considerant agt. Brisbane, 22 N. Y. R., 389, December, 1860, WRIGHT, J., it was decided, that the agent of a foreign corporation may maintain an action in his own name upon a subscription note, payable to the plaintiff, as executive agent of the company," for stock of the corporation to be issued to the signer. The contract is to be deemed made with the agent, and such agent, the "trustee of an express trust," within the meaning of this section, although he is not mentioned in respect to his representative character, nor as promisce individually; and though nothing appears to show that he has any interest apart from his principal, or that there was any motive for interposing him as the formal contracting party between the promissor and the party equitably entitled to the

benefit of his contract.

In Fish agt. Jacobsohn, 5 Bosw., 514, General Term, December, 1859, HOFFMAN, J., it was decided, that in an action by the payee of a check against the drawer, it is no defense that it was given by the defendant for a debt owing by a third person to one who was the payee's principal; and that the payee accepted it as agent for the debt due to his principal, the payee being expressly authorized to settle such debt and receive payment of it. Such agent, on receipt of stich check, having credited his principal with the amount of it, and having subsequently, in consequence of receiving it and before it was protested, paid other moneys to his principal's said debtor which otherwise he might have retained and applied upon the debt for which the check was given, and such check being in terms payable to such agent's order, he can maintain an action on it, in his own

name.

In Nelson agt. Eaton, 26 N. Y. R., 410, March, 1863, SELDEN, J., it was decided, that where an insurance company transferred to the plaintiffs, as trustees, a promissory note as a security for the liabilities of persons who had lent their credit to the company, with power to sell the note, at public or private sale, without notice: Held, that this power of sale did not take away the power which the trustees took by the mere transfer of the note to sue upon it in their own names, without joining the cestuis que

trust.

11. Q. Under the statutes of 1849 and 1851, “in relation to suits by and against joint stock companies and associations,” what companies and associatioms and what officers are capable of suing and being sued?

A. In Laws of 1849, chapter 258, it is enacted: 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. 2. No suit so commenced shall abate by reason of the death, removal or resignation of such president or treasurer of such joint stock company or association, or the death or legal incapacity of any shareholder or associate during the pendency of such suit; but the same may be continued by or against the successor of the officer in whose name such suit shall have been commenced. 3. The president or treasurer of any such joint stock company or association, shall not be liable in his own person or property, by reason of any suit prosecuted as above provided, by or against him, as the nominal plaintiff or defendant therein; provided that such president or treasurer shall not be exempted from any liability to which he may be otherwise legally subject as a stockholder or shareholder in such joint stock company or association. § 4. Nothing herein contained shall be construed to deprive any plaintiff of the right, after judgment shall be obtained against any such joint stock company or associaton, as above provided, from suing all or any of the shareholders or associates therein, individually, as now provided by law, or of the right to proceed, in the first instance, against the persons constituting any such joint stock company or association, in the manner now pro

vided by law; but if it shall appear to any court in which any suit shall be prosecuted, otherwise than is provided in the first section of this act, that the same is so prosecuted for the purpose of vexatiously and oppressively enhancing costs, such court shall not allow any more costs to be taxed and recovered in such suit than would be taxable and recoverable in case such suit was prosecuted in the manner provided in the first section of this act. 5. Nothing herein contained shall be construed to confer on the joint stock companies or associations mentioned in the first section of this act, any of the rights or privileges of corporations, except as herein specially provided. § 6. This act shall take effect immediately.

In Laws of 1851, chapter 455, it is enacted: 1. The act entitled "an act in relation to suits by and against joint stock companies and associations," passed April seventh, one thousand eight hundred and forty-nine, is hereby extended to any company or association, composed of not less than seven persons who are owners of or 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 act may be brought and maintained in the manner therein provided, as well for any cause of action heretofore existing as for any that may hereafter accrue. § 2. This act shall take effect immediately.

66

In Laws of 1853, chapter 153, it is enacted: 1. The fourth section of the act entitled 'an act in relation to suits by and against joint stock companies and associations," is hereby amended so as to read as follows: 4. Suits against any such joint stock company or association, in the first instance shall be prosecuted in the manner provided in the first section of the said act; but after judgment shall be obtained against any such joint stock company or association, as above provided, and execution thereon shall be returned unsatisfied in whole or in part, suits may be brought against any or all of the shareholders or associates, individually, as now provided by law; but no more than one suit shall be brought and maintained against said shareholders at any one time, nor until the same shall have been determined, and execution issued and returned unsatisfied in whole or in part. No death, removal, resignation of officers or shareholders, or sale or transfer of stock, shall work a dissolution of any such joint stock company or association, as against the parties suing or being sued by such company, as herein provided, or as against any creditor or person having any demand against such company at the time of any such death, removal, resignation, sale or transfer. § 2. This act shall take effect immediately.

In Laws of 1854, chapter 245, it is enacted: § 1. Whenever in pursuance of its articles of association, the property of any joint stock association is represented by shares of stock, it may be lawful for said associations to provide by their articles of association, that the death of any stockholder or the assignment of his stock, shall not work a disso lution of the association, but it shall continue as before, nor shall such company be dissolved except by judgment of a court for fraud in its managment, or other good cause to such court shown, or in pursuance of its articles of association. § 2. Said association may also, by said articles of association, provide that the shareholders may devolve upon any three or more of the partners the sole management of their business. 3. This act shall in no court be construed to give said associations any rights and privileges as corporations.

In Laws of 1862, chapter 151, it is enacted: § 1. It shall not be necessary in an indictment against any person or persons, for an offense committed against the rights or property of any joint stock association, organized under the statutes of this state, to set forth the names of the members of such association, nor to prove the same on the trial of such indictment, but it shall be sufficient to set forth in such indictment the name assumed and used by such association in its business, and to prove the same on the trial accordingly. 2. This act shall take effect immediately.

In New York Marbled Iron Works agt. Smith, 4 Duer, 373, General Term, March, 1855, OAKLEY, Ch. J., said: "The objection that the plaintiffs had no right to bring the action in their corporate name, is founded on a mistaken construction of the act of 1849. Even if this act were held to apply to incorporated companies, the privilege which it confers of suing in the name of a president or treasurer, would not take away the right which belongs to every corporation as such, and which the general act under which the plaintiffs were organized, expressly recognizes of suing and being sued by its corporate name. (1 R. S., chap. 18, § 1, p. 599; Laws of 1848, p. 55, § 2) The only effect would be to give an election to prosecute a suit in either form. But we are clearly of the opinion that the provisions of the act of 1849, are applicable only to unincorporated companies or associations, since it is only suits by or against such that must or can be prosecuted in the names of all the shareholders, and the intention of the legislature thus to limit the application of the act, is rendered still more manifest by the 5th section, which declares that nothing contained in the act shall be construed to confer upon the companies or associations, to which it refers, any of the rights or privileges of corporations; a declaration which, in respect to companies already possessing all these rights and privileges, would not be merely unnecessary, but absurd."

In Tibbetts agt. Blood, 21 Barb., 650, Generrl Term, May, 1856, MARVIN, J., it was

decided, that a company or association composed of not less than seven persons, having a treasurer, may bring an action upon a promissory note owned by thein, in the name of the treasurer, under the provisions of the act of 1851. The act of 1851 applies to any company or association, composed of not less than seven persons, who are owners of, or have an interest in any property, right of action or demand, jointly or in common, &c. The staute does not designate the kind of company or association, or characterize it in any manner, so as to show or indicate that it was formed for any purpose of business. Associations may be and are formed for business purposes. They may be, and often are formed for social purposes; and if the members organizing the association, are seven or more in number, and they have a treasurer, and property, or rights of action, or demand, owned by them jointly or in common, they may bring their action in the name of their treasurer. It is not necessary that they should be partners. They may be joint tenants or tenants in common, of the property or right. If they have become an association, and have a treasurer, they may bring their action in his naine.

In Corning agt. Green, 23 Barb., 35, General Term, September, 1856, WRIGHT, J., it was decided, that the intent of the statutes of 1849 and 1851, was to obviate the inconvenience of joining all the shareholders or associates as parties; to facilitate an existing right of action, and not to create a new one. Therefore, those statutes confer upon the president and treasurer of the companies or associations organized under them, no right to sue, except in cases where the shareholders or associates could before have prosecuted. The corporation of the city of Albany, being by the act of April 5th, 1823, authorized and empowered to collect the wharfage on the piers and docks, and distribute it among the pier and dock owners, are the trustees of an express trust, and as such they may maintain an action for wharfage without joining with them the cestuis trust. And the proprietors of the pier, if as an association, they were really and exclu clusively interested in a claim for whartage, might, since the Code, also sustain an action for the recovery thereof. For it is only in cases where an association, as such, are the owners, or have an interest, joint or in common, in any property, right of action or demand, that a suit may be maintained in the name of the association. The separate owners of demands, or of separate rights of action, cannot voluntarily associate, and elect a president, and under the acts of 1849 and 1851, recover in the name of such president, in one suit, the separate demands.

In Masterson agt. Botts, 4 Abb., 131, N. Y. Common Pleas, Special Term, January, 1857, INGRAHAM, J., it was decided, that these statutes of 1849 and 1851, do not embrace the fire companies of the city of New York, so as to authorize an action to be brought in the name of the foreman. The fire companies are not such associations as are meant by the statutes. They do not own the engines placed in their charge, nor have they any interest therein, other than as the agents of the city authorities. They hold them only as such agents, subject at all times to their control, and cannot be considered in any respect as the owners thereof.

In Austin agt. Searing, 16 N. Y. R., 116, September, 1857, SHANKLAND, J., it was decided, that whether the statutes of 1849 and 1851, include private partnerships or companies having more than seven members, not organized in pursuance of any statute, i. e. an association called Odd Fellows. Quere?

In De Witt agt. Chandler, 11 Abb., 459, General Term, November, 1860, HOGEBOOM, J., it was decided, that an action to recover a legacy bequeathed to the person who should, at a certain future period, act as treasurer of the American Protestant Society, should be brought in the name of the treasurer, and not in the name of the president of the society. The president of such an association may, under the acts of 1849 and 1851, maintain actions on behalf of the association; and if such a legacy had been to the association instead of the treasurer, the president might recover thereon.

In Robbins agt. Wells, 18 Abb., 191, N. Y. Superior Court, General Term, June, 1863, ROBERTSON, J., it was decided, that leave to file a supplemental complaint does not establish the plaintiff's right to sue for the original cause of action. A supplemental complaint presents a new cause of action, and the court must examine both actions before they can determine whether the plaintiff has a good cause of action. The objection that it appears by the complaint that the plaintiff is a foreign administrator, should be taken by demurrer on the ground of want of capacity to sue; and an omission to demur is a waiver of the objection. This objection does not go to the sufficiency of the cause of action. Suits against a partnership or association consisting of seven or more persons, must be brought against the president or treasurer of such association, and the remedy against their joint property be exhausted, before an action can be brought against one or more of the individual associates.

12. Q. Is a bond, given to the people of the state, for the benefit of those interested and named in it, properly prosecuted in the name of the people?

A. In Bos agt. Seaman, 2 Code R. 1., Special Term, July, 1849, JONES, J., it was decided, that bonds taken in the name of the people of the state from administrators, should be prosecuted in the name of the people, and not in the name of the pary in

interest. (This appears to be overruled in the following case of Baggott agt. Boulger, 2 Duer, 160.)

In The People agt. Norton, 5 Seld., 179, December, 1853, RUGGLES, J., it was decided, that where a bond is given by a trustee and his surety to the people of the state of New York," for the benefit of those interested in the trust estate, an action on the bond should be brought in the name of the people, they being "trustees of an express trust," within the meaning of this section.

In The People agı. Laws, 4 Abb., 292, General Term, March, 1857, S. B. STRONG, J,, it was decided, that an action prosecuted under the laws of 1830, upon an administration bond made to the people of this state, under the provisions of the Revised Statutes (2 R. S. 77, § 42), is properly brought in the name of the people, the individual immediately interested in the recovery being joined as relator. In such cases the defendants cannot be prejudiced by the procedure, as the relator would, if unsuccessful, be responsible for the costs. These official bonds are not actually assigned, but the moving parties are anthorized to institute suits upon them. They are still held by the obligees or their officers for the benefit of, not only the moving party, but of all others who may have similar claims to enforce. As to all such, the people are still the effectual trustees.

But in Baggott agt. Boulger, 2 Duer, 160, General Term, April, 1853, BoswORTH, J.. it was decided, that the action upon an administrator's bond is, under the Code, properly brought in the name of the persons for whose benefit its prosecution is directed. The common law rule, that an action on a bond must be brought in the name of the obligee, whoever may be the owner, is abrogated by the Code. It must now be brought in the name of the real party in interest. This action was brought upon an administrator's bond given under the statute of 1837. The case above (The People agt. Laws, 4 Abb. 292) was under the statute of 1830. It will be seen that the two statutes are entirely different. The statute of 1830 (Laws of 1830, ch. 320, § 23; see same, 2 Rev. Stat, part 2 ch. 6, tit. 5, § 19, p. 300 of 4 ed.) authorizes the surrogate to "cause the bond to be prosecuted." The other statute (Laws of 1537, ch. 460. § 65; see same in 2 Rev. Stat. 421, 4 ed.) directs the surrogate to "assign the bond" "for the purpose of being prosecuted.”

In Banker agt. Pearce, 8 How., 258, Special Term, October, 1852, HARRIS, J., it was decided, that an action to recover an amount decreed by the surrogate to be paid by the administrator as distributive shares of the estate to two infants, is a case belonging to the class of "trusts" for which this section of the Code provides; and the suit is, therefore, properly brought in the name of the people.

In The People agt. Clark, 21 Barb., 214, General Term, December, 1855, T. R. STRONG, J., it was decided, that where a bond for the appearance of a defendant, upon an adjournment of proceedings in bastardy, is given in the name of the people as obligess, it may be prosecuted in their name.

In The People agt. Townsend, 37 Barb., 520, General Term, March, 1862, MILLER, J.. it was decided, that an action upon an administrator's bond should be brought in the name of the people.

In People agt. Cram, 8 How., 151, General Term, February, 1853, MARVIN, J., it was stated, that the defendants' counsel now insists that the action (upon a joint and several bond given by the defendants to the people, under the excise law) is not properly brought in the name of the people; that it should have been in the name of the overseers of the poor, or in the name of the supervisor of the town, or by the county superintendent of the poor. Various provisions of the Revised Statutes are cited. If this objection is well taken, it is fatal to a recovery, and for that reason it may be taken upon the argument here, though it was not raised upon the trial. In my opinion. the objection cannot be sustained. The bond is given to the people of the state of New York. It is a general rule that the action must be in the name of the party to the contract.

In Annett agt. Kerr, 28 How., 324, N. Y. Superior Court, November, 1864, ROBERTSON, J., it was decided, that where an administrator has been removed on the application of his sureties, after filing his account, and another administrator appointed in his place, the latter administrator cannot bring an action upon the bond of the former in his own name, under the Code, as the real party in interest, to compel payment over of the funds belonging to the estate in his hands. The action on the bond should be prosecuted in the name of the people. The surrogate's decree directing the assignment of the bond to the new administrator for the purpose of such prosecution, is without jurisdiction and void.

In O'Connor agt. Such, 9 Bosw., 318, General Term, May, 1862, BOSWORTH, J., it was decided, that where an action upon an official bond, e. g., the bond of an administrator, is brought in the name of an individual plaintiff, and not in the name of the people, the judgment should not be for the amount of the penalty, but only for the amount of the damages and costs.

13. Q. When and how may actions be brought by and against supervisors and other town officers?

A. In 3 Rev. Stat., 5th ed., p. 774, art. 4, part 3, ch. 8, it is enacted: 105. Actions may be brought by the supervisors of a county; by the loan officers and commissioners of loans of a county; by county superintendents of the poor; by supervisors of towns;