A breach of promise of marriage is so far personal as not to survive the death of either party. 1 without indorsement, and the assignee will obtain a good, equitable title; but the paper, it is said, will be subject to whatever defenses might have been made against the assignor. 2 Parsons N. & B. 46, and cases cited in notes. In England those emoluments which the government pays to certain officials, as compensation or reward for their public services, and which are regarded as honorary, cannot be assigned. 3 Pom. Eq., § 1276, and cases cited. But in this country, in the absence of a statute or regulation prohibiting it, such assignments appear to be valid. A mere expectancy, however, not coupled with an interest, cannot be assigned. Munsell v. Lewis, 4 Hill, 635. Where an assignment is absolute, that is, where the assignee takes the entire interest in the thing assigned, the assignment is legal rather than equitable, no matter what the form may be. But if the assignee is to account to the assignor for any portion of the proceeds, then the assignment is equitable. When a note secured by mortgage is assigned, the assignment carries with it the security, and the assignee may bring an action in his own name to foreclose the same. Bank v. Anderson, 14 Iowa, 544; Green v. Hart, 1 Johns. 590. In the case last cited it is said (page 591): "In the present case the mortgage was delivered to the assignee of the debt. Had it not been delivered, nor anything said about it, I should have considered the respondent, on the failure of Johnson to pay the note, entitled to the aid of the mortgage." Jones on Mort., $1377. And the same rule ap plies to any other security. A claim for property wrongfully or fraudulently withheld or taken, or for an injury to personal or real property, may be assigned. Grant v. Ludlow, 8 O. S. 1; Swan's Pl. & Pr. 65. Where an entire demand has been assigned in distinct parts to different individuals, an assignee of one of the parts may bring an action, stating the facts in his petition, and making the other assignees defendants. Cook v. Gen. Mut. Ins. Co., 8 How. Pr. 514; Swan's Pl. & Pr. 66. - as to re Leases. The subject matter of covenants in leases which run with the land to bind the assignee, must be in esse at the time of the demise. The leading case on this question is Spencer's case, 5 Coke, 16, in which it was held that, if the covenant relate to a matter not in existence when the lease was made, the assignee was not bound. If, however, the covenant relate to something in existence when the lease is madepair the house- the assignee will be bound. Only such covenants run with the land as become united with and form a part of the consideration for which the land or some interest in it was leased by the covenanter from the covenantee. As stated by Gould, J.: Since when the covenants are in the very conveyance by which the covenanter, etc., acquired his land, the performance of those covenants plainly forms a part of the consideration, without which the conveyance would not have been made. Van Rensselaer v. Smith, 27 Barb. 146; I Wash R. P. (4 ed.) 497. The assignee of a lease is bound to know the nature and contents of the lease. When there is a recital in the lease that the premises are to be occupied for a particular use, the covenant 71; Smith v. Sherman, 4 Cush. 408; Wade v. Kalbfleisch, 58 N. Y. 282. “An executor, administrator, guardian, trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized by law, and official bonds may be sued upon in the same way." An express trust is thus defined: "It is intended manifestly to embrace not only formal trusts declared by deeds inter partes, but all cases in which a person acting in behalf of a third party enters into a written express contract with another, either in his own individual name without description, or in his own name expressly in trust for, or on behalf of, or for the benefit of another, by whatever form of expression such trust may be declared. It includes not only a person with whom, but one in whose name a contract is made for the benefit of another." As a general rule all persons materially interested in the subject of the action should be made parties, either plaintiffs or defendants, in order that there may be a complete and final decree. 1 runs with the land and binds the assignee. 1 Wash. R. P. (4 ed.) 499, and cases cited. If a covenant running with the land is divisible in its nature, and the entire interest in different portions of the land passes by assignment to distinct persons, the covenant will attach to each parcel pro tanto. 1 Wash. R. P. 502, and cases cited. A grant by a lessee of his entire estate is an assignment of the lease, whether it be in the form of a lease or a formal assignment. And if the lessor, 1 Williams v. Bankhead, 19 Wall. 571; Williams v. Russell, 19 Pick. 162. Story v. Livingston, 13 Pet. 357; Newcomb v. Horton, 18 Wis. 568; Hill v. during the term, mortgage the premises, it may operate as an assignment of the reversion pro tanto, but the mortgagee must obtain possession of the mortgaged premises before he can require the tenant to pay the rent to him. 1 Wash. R. P. 508. Where land is conveyed before the covenants are broken, the assignee or grantee at the time of the breach is the proper plaintiff. Suydam v. Jones, 10 Wend. 181; King v. Kerr, 5 Ohio, 155; Withy v. Mumford, 5 Cowen, 137. Proctor, 10 W. Va. 78; Janes v. Will. iams, 31 Ark. 177; Inglehart v. Moore, 21 Tex. 504. Necessary parties are such as are requisite, in order that the court may render a valid judgment in respect to the subject of the action. To constitute a necessary party, he must possess an interest in the subject of the action, or some agency or trust in relation thereto. 1 Proper parties are such as are not absolutely essential in order that the court may render a valid decree, except as to those not made parties. decree he is a neces If his interests are not The general rule is that all persons whose interests are involved in the issue should be made parties. If the person's interests will be directly affected by the sary party and should be brought in. 3 directly affected, but he has an interest in the controversy, as between the parties to the action, he should be made a party in order that there may be a final decree. If, however, he has an interest in the subject matter of the action, which may be settled in that suit, but no interest in the controversy between the immediate parties to the action, he may be joined or not, at the option of the plaintiff. 5 As a decree binds only parties and privies ordinarily, the better course is to join either as plaintiffs or defendants all persons who have an interest in the subject matter of the action. The general rule as to the joinder of plaintiffs is, that all persons having an interest in the subject of the action, and in obtaining the relief demanded, may join; but if one who should be joined as plaintiff shall not consent thereto, he may be made a defendant, the reason being stated in the petition. Where several persons have a common interest arising out of the same matter, though their interests are separate, they may join in an action for equitable relief, provided their interests are not adverse.“ Thus, if the waters of a stream are diverted whereby the 1 Baker v. Rowan, 2 Stew. & P. 365; 2 Gilmore v. Johnson, 14 Ga. 686; Bettinger v. Bell, 65 Ind. 452; State v. Sanderson, 54 Mo. 206. 3 Robertson v. Carson, 19 Wall. 94; Supervisors v. Wallbridge, 38 Wis. 188; Mallow v. Hinde, 12 Wheat. 193; Lewis v. Elrod, 38 Ala. 21. Harding v. Handy, 11 Wheat. 132; Hicks v. Campbell, 19 N. J. Eq. 186. 5 Williams v. Bankhead, 19 Wall. 571; Shields v. Barrow, 17 How. 130; Wormley v. Wormley, S Wheat. 132; Birdwell v. Butler, 13 Tex. 341. This provision of the code does not contemplate a joint interest of the owners of mills thereon are injured, they may unite in an action to enjoin the diversion, although their titles are several. 1 Exceptions to the rule. The rule which requires all persons who have an interest in the action to be made parties, is one calculated to promote justice, by bringing all matters in controversy, in relation to the subject matter, before the court for a final decree. It frequently happens, however, that all persons interested cannot be joined as parties and served with process-as where some of them are beyond the jurisdiction of the court, 2 or are dead, and their legal representatives are unknown. In many of the code states there are provisions for service, by publication upon unknown heirs, and like cases. To authorize such service the subject of the action must be within the jurisdiction of the court. 3 Where the court can dispose of the merits of the case without prejudice to the rights of those not before it, and a satisfactory reason is alleged and proved for the failure to bring them in, the court may proceed and render a decree; but if the rights of those not made parties are involved to such a degree with the parties before the court that a decree will prejudice their rights, they must be made parties. plaintiffs, nor absolutely require that all persons having an interest in the subject matter of the action shall be joined. It is permissive-that is, that all persons who will be benefited by the relief sought may join to obtain it. Robinson v. Smith, 3 Paige, 222. Grant v. VanSchoonhoven, 9 Id. 255. 1 In Reid v. Gifford, Hopk. Ch. 416, it is said: "The complainants are several proprietors of distinct lands and mills, and of separate parts of the natural water course; and the defendants object that these complainants having distinct rights, cannot join in this suit. This objection is more specious than solid. The rights of the several complainants to their respective lands are indeed distinct; but the grievance in question is a common injury to all the complainants. The water in its natural descent from the lake becomes the property of each of the complainants successively; all the com plainants thus have right in the same subject, and the nature of the case forms a community of interests in the complainants. One creditor may sue in equity for himself and other creditors having like rights, and yet the debts demanded are distinct and rise from sepa rate contracts. The common claim of the different creditors to the same relief is considered in equity as one demand, and separate suits are not necessary." The rule of equity is that matters which may be demanded by one suit must be of the same nature. Mitford Eq. Pl. 146. Belknap v. Trimble, 3 Paige, 577. Cassidy v. Shimmin, 122 Mass. 10; McCaleb v. Critchfield, 5 Heisk. 291. 3 St. John v. Hardwick, 11 Ind. 252; Davis v. Hoopes, 33 Miss. 183. 4 Mallow v. Hinde, 12 Wheat. 194; Barney v. Baltimore, 6 Wall. 285; McPike v. Wells, 54 Miss. 145; Gregory v. Stetson, 133 U. S. 579. Judgment creditors having separate judgments may unite in an action in the nature of a creditor's bill to reach the property of the debtor,1 and the same rule applies to creditors of a corporation.2 The object in both cases being to obtain a common fund from which creditors are to be paid pro rata A tax payer, where the illegality extends to the whole assessment, may, on his own behalf and that of all other tax payers of the county or district, enjoin the collection of an illegal tax. 3 In some of the states this relief is denied. The right of a court to close its doors and say it will not grant relief in a proper case is very doubtful. Trustees appointed by the court or by any instrument in the nature of a grant or conveyance, may sue without joining the beneficiaries. 4 An auctioneer may sue for the price of goods sold by him, and it is not necessary to prove that he has a special property in the goods. But the owner of the goods may also sue. A sheriff may maintain an action for the price of goods sold by him.6 And where property taken under an order of attachment by him has been converted, he is the proper party to sue for the same." The lowest responsible bidder, or a tax payer, where the statute requires contracts to be let to the lowest bidder, may maintain an action in a proper case to compel public officers II Barb. Ch. 154. 2 Conro v. Iron Co., 12 Barb. 27. 3 When the illegality in a tax affects a single person only, or affects him in a peculiar manner different from that of others, he must bring his separate action to restrain its collection; nor can a joint action be maintained by two or more persons setting out distinct grounds on which each seeks relief. But where the illegality extends to the whole assessment, or it affects a number of persons in the same manner, any number or all of those thus affected may join in an action to restrain the collection of the tax. Cooley on Taxation, 545, and cases cited. One person cannot maintain an action to 184. 7 Schaeffer v. Marienthal, 17 O. S. |