to be any good reason why they should not be called what they are concurrently legal and equitable.69

Professor Williston's conception of all jural relations as either legal or equitable and his failure to recognize that many of them are concurrently legal and equitable leads him to assert that so long as the common law procedure required the assignee to sue in the name of the assignor

"it was hardly possible to argue, and it was not argued, that the assignee was legal owner of the right";70

also that

may

"all the powers and rights upon which Professor Cook relies belong to the assignee whether the court travels on the theory that he has a legal ownership or on the theory that he has a legal power to collect but only equitable ownership." "

Nevertheless, so far as concerns the first of these statements, the "impossible" was achieved by Kent, C. J., in 1801; by Smith, J., in 1818, as is shown by the extracts printed above. Nor are these isolated instances, as others cited in the footnote will show.72

If I have made my argument down to this point entirely clear, the incorrectness of the second statement ought to require no demonstration. "The legal power to collect" is only one among the many jural relations which at law as well as in equity are vested in the assignee. The privilege and the power to release gratuitously; the privilege and power to transfer to others; the immunity from a power of the assignor, or anyone else to do these things all these and many other jural relations 73 are recognized as vested in the assignee by courts of law as well as of equity. To call the "power to collect" "legal" but to deny the same name to these other jural if we are to be in a position to discuss the real problem involved in a discussion of its scope and limitations.

69 If all that Professor Williston means is to insist that whatever limitations the assignee's "rights" had when purely equitable they should continue to have when they become concurrent, there is little occasion for controversy between us. Apparently however he means much more.

72 Parris, J., in Hackett v. Martin, 8 Greenl. (Me.) 77, 78 (1831); Morrow v. Inhabitants of Vernon, 35 N. J. L. 490 (1872); Bouvier v. Baltimore & N. Y. Ry. Co., 67 N. J. L. 281, 293, 51 Atl. 781 (1901); Bird v. Caritat, 2 Johns. (N. Y.) 342 (1807). 7 For example, the right to have the sheriff levy execution for the assignee's benefit.

relations which are also recognized and sanctioned by courts of law seems inconsistent, to say the least. At the risk of tedious repetition, let me repeat: According to the decisions of the courts, all the jural relations which before the assignment were vested in the assignor have ceased to be so vested, and on the other hand the assignee has become by virtue of the assignment invested with all the jural relations which go to make up what we call "ownership" of the chose in action. There remains a false appearance of ownership in the assignor because of the requirement that the assignee's action in a court of law bear a misleading label, viz., the name of the assignor.

That the label on the action was a mere procedural form was, I think, clearly shown in my previous article.74 As apparently Professor Williston was not convinced and others may share his doubts, a few additional cases may perhaps be cited with profit. In Matherson v. Wilkinson 75 the suit was brought in the name of the assignor. It appeared that because of his failure to comply with a statute the assignor could not sue. It was therefore argued that the assignee could not sue in the assignor's name. If the assignee had only a "power to collect" a claim, the "legal ownership" of which was vested in the assignor, it seems clear the objection was well taken. The court, however, brushed it aside, saying that the debt was "no longer the property" of the assignor; that the latter did "not own the claim after selling it and assigning it." Other courts on similar facts reach the same conclusion.76

In other fields of the law there are many similar requirements as to the way in which actions shall be entitled. Perhaps the most striking is the action of ejectment. As is well known, in its fully developed form the names of both plaintiff and defendant were purely fictitious. The declaration stated a purely fictitious lease to a fictitious lessee ("John Doe," the nominal plaintiff), a ficti

76 Quan Wye v. Chin Lin Hee, 123 Cal. 185, 55 Pac. 783 (1898); Citizens' Bank v. Corkings, 9 S. D. 614, 70 N. W. 1059 (1897). In the case last cited a non-resident corporation, which was not entitled to sue in South Dakota on the claim because it had not complied with the South Dakota statutes, assigned the claim to a resident of the state. It was held that the latter could recover in his own name under the "real party in interest" clause. In these cases the assignor has the power by the assignment to give the assignee more than the assignor has.

tious entry and ouster of the fictitious plaintiff by the fictitious defendant. By means of the "consent-rule" the real defendant was ultimately substituted for the nominal defendant, but the real plaintiff was never substituted for the nominal plaintiff. Only by using this procedural form could the real plaintiff recover, and the judgment on its face merely directed that the nominal and fictitious plaintiff "John Doe" recover possession of his fictitious term. The writ of execution (“habere facias possessionem") followed the same form, directing the sheriff to put "John Doe" into possession." Under this, however, it was the duty of the sheriff to put the real plaintiff into possession. The title of the action revealed, of course, who the real plaintiff was, as it described him as the lessor of the nominal plaintiff. We thus have a situation strikingly like that in the action of the assignee in the name of the assignor, where the nominal plaintiff (the assignor) apparently by the judgment recovers against the debtor, but the duty of the sheriff is to levy execution for the real plaintiff (the assignee). In both cases we are dealing with a procedural form. The analogy becomes still more striking when we recall that in the earlier days of ejectment the nominal plaintiff and defendant were real persons.

78

Another equally striking analogy is found in the rule by which corporations sue or are sued not in the name of the real parties in interest the stockholders or directors - but under a purely fictitious name, such as "The Copper King, Limited." 79 Similar also is the situation where by statute in one state a "joint stock association" which is not incorporated and so is really a partnership is permitted to sue and be sued under a fictitious name—e. g., the "X Express Co.," or perhaps in the name of the president, or president and directors. The real parties in such an action are the members of the association; we are dealing merely with a procedural rule. In other jurisdictions without a similar statute, all the partners must join or be joined in their own names.80 Purely procedural

77 See the forms in ADAMS, EJECTMENT, Am. ed., 1821, 364–65, Forms No. 34 and 36. 78 Ibid., 1-17. Of course ejectment could be and was used by actual lessees. The reference here is to its use in cases where the real plaintiff had a freehold interest.

79 Risdon Iron & Locomotive Works v. Furness, [1906] 1 K. B. 49; Bank of Australasia v. Harding, 9 C. B. 661 (1850). Cf. Hohfeld, "The Nature of Stockholders' Individual Liability for Corporate Debts,” 9 Col. L. Rev. 285, 301-03, where the cases last cited are discussed.

80 Boston & Albany R. Co. v. Pearson, 128 Mass. 445 (1879). The judgment under

also is the common requirement that an action by an executor be entitled "A. B., as executor of C. D." This appears clearly when we recall that a suit by a trustee - who occupies an analogous position is required merely to be entitled with the trustee's own name without indicating his fiduciary character.

This brings us to a consideration of the statutes which permit the action to be brought in the name of the assignee. Very little need be added to what Professor Williston has said as to the forms which these statutes take. One or two things must however be said. In dealing with the code provision requiring all actions (with certain exceptions) to be brought in the name of the real party in interest, Professor Williston says:

"It would seem certainly that a mere provision that the real party in interest must bring the suit in his own name can effect only a change of procedure."

Unfortunately for the learned author's contention, the fact seems to be that, rightly or wrongly, this innocent-looking provision has been applied by some courts so as to produce important changes in substantive law. As applied, however, to the assignment cases, the decisions of the court which hold that the change in the name of the action is procedure merely quite bears out my contention that the requirement of suing in the assignor's name was a mere form. So far do they come from militating against my position that they actually support it. We may put the matter as follows. For historical reasons the common law procedure required a certain form of entitling an action brought by an assignee claiming by virtue of a common law assignment. A provision changing this and permitting the assignee to entitle the action with his own name does not alter the procedural requirements of other jurisdictions. From this it follows that in these other jurisdictions (if they have no similar statutes) the assignee must still obey the local common law procedural rule (lex fori) and use the these statutes may simply read that the plaintiff recover from the officer of the association whose name as defendant the action bears, but execution does not run against his individual property, at least in the first instance, as the statutes usually require that satisfaction be had first out of the association property. McCabe v. Goodfellow, 133 N. Y. 89, 30 N. E. 728 (1892).

81 See, for example Kingsland v. Chrisman, 28 Mo. App. 308 (1887); Tilden v. Stilson, 49 Neb. 382, 68 N. W. 478 (1896).

assignor's name. On the other hand, if by the statutory law of a given jurisdiction assignments not valid at common law are authorized in language which, fairly interpreted, says that the ownership of the claim may be transferred, the assignee suing in another jurisdiction (even though the latter has no similar statute) may well be held to be not subject to the ordinary common law procedural rule requiring an assignee to sue in the name of the assignor, on the theory that that rule applies only to assignments made in pursuance of the common law. It is not argued that this is a necessary result or indeed the actual result reached in all the cases, for it must be admitted that the analysis in most cases is not very clearly made. Many decisions, however, are in accord with it; and it seems to be the rule which will account for seeming inconsistencies. It was applied in an occasional case at the time when it could not be said that the common law had fully recognized the ownership of an assigned claim as vested in the assignee.82 An example in relatively recent times is found in Mayhew v. Pentecost.8 In that case an assignee in bankruptcy (i. e., a statutory assignee under the federal bankruptcy law) who was also assignee in fact under an assignment made in Massachusetts (i. e., a common law assignee) sued in Massachusetts in the name of the bankrupt. It was objected that the suit ought to have been in the name of the assignee, as the title to the bankrupt's choses in action passed to the assignee in bankruptcy, as a statutory assignee, by virtue of the federal bankruptcy act. The court, while admitting that the assignee could have sued in his own name, also recognized the assignment in fact as a common law assignment, permitting the assignee to sue in the name of the bankrupt assignor, in accordance with the common law rule of procedure which still obtained in Massachusetts at that time. The court, speaking through Mr. Justice Gray, said:

"The question whether a suit upon a chose in action shall be brought in the name of the assignor or of the assignee, is a question of form of remedy only, and is to be determined by the lex fori."

In effect the court decided that Massachusetts procedure required one form of entitling the action for common law assignments

82 O'Callaghan v. Thomond, 3 Taunt. 82 (1810).

Mass. 332, 335 (1880). Italics are those of present writer.