pretended real party. The plaintiffs, however, insist that, notwithstanding this provision of the code (section 111), the indorsee of a note, or the holder of a note payable to bearer or indorser in blank, may maintain an action upon it, although not in fact the owner, nor, as between himself and the owner, entitled to the proceeds when collected. That such was the rule before the code is conceded, and the argument is that it was abolished by the code; that the codifiers and legislature so intended. In their report to the legislature the codifiers said: 'The rules respecting parties in the courts of law differ from those in the courts of equity. The blending of the jurisdiction makes it necessary to revise those rules to some extent. In doing so, we have had a threefold purpose in view: (1) To do away with the artificial distinctions existing in the courts of law, and to require the real party in interest to appear in court as such; (2) to require the presence of such parties as are necessary to make an end to the controversy; and (3) to allow otherwise great latitude in respect to the number of parties who may be brought in. The true rule undoubtedly is that which prevails in the courts of equity-that he who has the right is the person to pursue the remedy. We have adopted that rule.' This section (now 111) was adopted by the legislature precisely as submitted by the codifiers, showing that they approved the reasons given by the codifiers for its adoption. It is, therefore, quite immaterial what was the rule previous to the code, if thereby the legislature intended to and did change the rule by express enactment. That they did so we think clear, from the language of the statute and the reasons for its adoption. In their reasoning the codifiers alluded to the existing rules and the necessity for a revision; one purpose of the proposed change being to require the real person in interest to appear in court as such, followed by an act providing that 'every action must be prosecuted in the name of the real party in interest.' This reasoning and this enactment seem too plain for misconception. The act is emphatic. It uses the Saxon word 'must' (a verb which has not yet been twisted by judicial construction, like the words 'may' and 'shall,' into meaning something else) to place beyond doubt or cavil what it intended." We heartily coincide with the reasoning and in the conclusion reached in the foregoing cases. We believe this is the true meaning of this section, as applied to actions on assigned accounts,

and so obviously plain as to admit of no other interpretation or construction. Therefore the decision of Krapp v. Eldridge, 33 Kan., 106 (5 Pac. 372), in so far as it expresses a doctrine contrary hereto, is overruled.

This cause is reversed and remanded, with instructions to sustain the demurrer to the evidence of the plaintiff to the second cause of action.*

MCARTHUR v. GREEN BAY CANAL CO.

34 Wis., 139. [1874.]

While a tug-boat was towing the plaintiff's barge through the defendant's canal, a part of the embankment washed out, causing the barge to run aground and the tug-boat to be detained.

The owner of the tug assigned his right of action to the plaintiff, who brought a suit to recover damages for the injuries to the barge and the detention of the tug. After the affirmance of a judgment in favor of the plaintiff, the defendant filed a motion for a rehearing.

(On the motion for a rehearing.)

LYON, J.: We have carefully considered the very earnest argument of the learned counsel for the defendant in support of the motion for a rehearing, and have endeavored fully to review the grounds of our former decision of the case, but we are entirely unable to perceive anything in the case which forces upon us the alternative of receding from our former views and reversing the judgment of the circuit court, or giving up (to use the language of the learned counsel, and their italics also), "the pretense of administering impartial justice." Neither does our re-examination of the case lead us to believe, or even suspect, that we have attempted to evade any difficulty in the way of an affirmance of such judgment. We thought when the former decision was announced, and still think that the opinion heretofore filed, fairly stated and discussed the material questions raised on the original argument of the case, and that the principles which controlled our decision were sound legal principles, and properly applicable to the case. Entertaining

*Concurring opinions of Foster and Pollock, JJ., and dissenting opinion of Greene, J., omitted.

these views, we do not see any necessity for further discussion of the same questions.

The question whether the claim for damages for the detention of the tug is assignable, so that the plaintiff, who is the assignee of such claim, may entertain an action thereon in his own name, has not been determined, for reasons stated in the former opinion. The learned counsel for the defendant now inform us that they did not intend to waive their objection to the right of the plaintiff to recover such damages, and call upon us to determine the question on this motion; but, unfortunately for us, they have not favored us with any argument or citation of authorities on the question. Still it is our duty to determine it.

The action is to recover damages for injuries to personal property, caused by the negligence of the defendant. It does not arise out of a contract, but sounds in tort. Beyond all question, a right of action for injuries to, or the conversion of, personal property, while not assignable at the common law, is assignable in equity, unless that quality is taken away by sec. 12, ch. 122, R. S., which is as follows: "Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section fourteen; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of a contract." (Tay. Stats., 1418, § 12.) The exception mentioned has no relation to this action. The above provision is contained in the New York code of procedure; and it has been held by the courts of that state in several cases that the last clause of the section does not prohibit the assignment of a thing in action which was assignable in equity before the code was enacted, but only relates to or precludes the assignment of those choses in action for personal torts which die with the party and which never were assignable either in law or in equity. Hence those cases hold that the assignee of a thing in action not arising out of a contract may maintain an action thereon in his own name, in all cases where the cause of action is assignable in equity. Some of the cases hold, or strongly intimate, that survivorship is the test of assignability-that is to say, that every chose in action which survives to the personal representative of the party, is assignable in equity, and may be sued upon in the name of the assignee. But whether this be the true test or not, we think the New York courts have given the

statute a sound interpretation in respect to the assignability of claims for damages for injuries to property.

The following are some of the authorities which sustain the principles above quoted: The People ex rel Stanton v. Tioga C. P., 19 Wend. 73; McKee v. Judd, 12 N. Y., 622; Waldron v. Willard, 17 id., 466; Merril v. Grinnell, 30 id., 594; Fulton Fire Ins. Co. v. Baldwin, 37 id., 648; Butler v. N. Y. & Erie R. R. Co., 22 Barb., 110; Dininny v. Fay, 38 id., 18; 1 Chitty's Pl., 69. These authorities are cited in the brief of counsel for the plaintiff. See also R. S., ch. 135, sec. 2, as to survival of actions, and Noonan v. Orton, decided at the present term.

It must be held that the action to recover damages for the detention of the tug was properly brought in the name of the plaintiff.

Motion denied.*

Section 2. Joinder of Plaintiffs.

CODE PROVISIONS. "All persons having an interest in the subject of the action, and in obtaining the judgment demanded, may be joined as plaintiffs, except as otherwise expressly prescribed in this act."-N. Y. Code Civ. Proc., § 446.

"Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants, except as otherwise expressly prescribed in this act. But if the consent of any one, who ought to be joined as a plaintiff, cannot be ob tained, he may be made a defendant, the reason there for being stated in the complaint. And where the question is one of a common or general interest of many persons, or where the persons, who might be made parties, are very numerous, and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all."-N. Y. Code Civ. Proc., § 448.

"All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this article."-Mo. R. S. 1899, Sec. 542.

"Parties who are united in interests must be joined as plaintiffs or defendants; but if the consent of any one who should *See also Snyder v. Ry., 86 Mo., 615.

be joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the petition. This section shall apply to both actions at law and suits in equity." -Mo. R. S. 1899, Sec. 544.

(a) Parties Who May Join.

GATES v. BOOMER.

17 Wis., 470. [1863.]

By the Court, COLE, J.: The first objection taken to the complaint on the demurrer is, that the court has no jurisdiction of the cause. The complaint is filed by two judgment creditors of Lyman E. Boomer, for the purpose of setting aside and having declared void a deed given to him by his co-defendant, on the ground that it is fraudulent and void as to creditors. They state that their judgments were obtained subsequent to the giving of said deed; that executions have been issued upon them, and returned unsatisfied; and that the judgment debtor has left the state and has no property here liable to seizure and sale. They therefore ask that the deed, which is an obstruction, be removed so that they can enforce their liens by a sale of the property upon execution. This general statement will suffice to understand the object of the suit.

We think the facts stated in the complaint bring the case within an acknowledged head of equity jurisdiction. As already observed, the object and purpose of the suit is to clear the real estate of the judgment debtor from an incumbrance fraudulently and improperly placed upon it to the injury and prejudice of the creditors. It is said, if the deed be void in respect to creditors, as is alleged, that then this suit is unnecessary, since there is no obstacle to the respondents enforcing their judgments by sales upon execution. But if the parties should adopt the course suggested, still it is very obvious that the existence of the deed would throw doubt and uncertainty upon the title and might prevent bidding entirely at the sales. It is further objected that there is a defect of parties plaintiffs, and that it was irregular for the two judgment creditors to unite in the action. This point is clearly untenable. Both plaintiffs have a common interest in removing the fraudulent conveyance, so that they can enforce their respective judgments.