therefore where, as in this state, the acknowledgment must be in writing signed by the party to be charged, no other acknowledgment will be sufficient: Esseltyn v. Weeks, 12 N. Y. 635; Heidlin v. Castro, 22 Cal. 100; Estate of Galvin, 51 Id. 215; Biddle v. Brizolara, 56 Id. 374. A mere verbal promise is not sufficient: Shapley v. Abbott, 42 N. Y. 443; S. C., 1 Äm. Rep. 548. The writing need not show the time of the promise: Kincaid v. Archibald, 73 N. Y. 189; S. C., 10 Hun, 9; Fletcher v. Updike, 67 Barb. 364; nor its application to the demand in suit; these facts may be proved by parol: McNamee v. Tenney, 41 Barb. 495. Promise of creditor to extend time of payment must be founded on a consideration, or it is void, and will not prevent the running of the statute: Green v. Coos Bay W. R. Co., 10 Saw.

625.

To and by whom made. The ac knowledgment must be made to the creditor or some one acting in his behalf: Wakeman v. Sherman, 9 N. Y. 85; Bloodgood v. Bruen, 8 Id. 362; Winterton v. Winterton, 7 Hun, 230; Flacher v. Upilike, 67 Barb. 364; Henry v. Root, 33 N. Y. 526. An acknowledgment to a stranger is not sufficient. Biddle v. Brizzolara, 34 Cal. 183; Sibert v. Wilder, 16 Kan. 529; S. C., 17 Am. Rep. 171; Kyle v. Wells, 17 Pa. St. 286; S. C., 55 Am. Dec. 555, unless intended by the debtor to be communicated to the creditor: Pachman v. Roller, 9 Baxt. 409; S. C., 40 Am. Rep. 97. A promise to the attorney of the creditor has been held sufficient: Kirby v. Mills, 78 N. C. 154; S. C., 24 Am. Rep. 460. A new promise to an administrator inures to the benefit of the estate: Farrell v. Palmer, 36 Cal. 192; and so a new promise made to the payee of a promissory note inures to the benefit of the indorsec: Smith v. Richmond, 19 Id. 476.

Joint debtors.-The question whether a promise or acknowledgment by one of several joint debtors will revive the debt as to all or only as to the debtor making it, is variously decided. In some states it is held that it only revives the debt as to the one: City Nat. Bank v. Phelps, 86 N. Y. 484; Kallenback v. Dickinson, 100 Ill. 427; S. C., 39 Am. Rep. 47; Miller v. Miller, McAr. & M. 109; S. C., 48 Am. Rep. 738; while in other states it is held to operate as to all: Bur

goon v. Bixler, 55 Md. 384; S. C., 39 Oct. 11, 1862. Am. Rep. 417; Vernon v. Stewart, 64 Mo. 408; S. C., 27 Am. Rep. 250.

Pleading, practice, and evidence. -In some states it is held that the action is founded on the new promise supported by a moral obligation arising from the old or original contract: McCormick v. Brown, 36 Cal. 180; Jones v. Moore, 5 Binn. 573; S. C., 6 Am. Dec. 428; Coles v. Kelsey, 2 Tex. 541; S. C., 47 Am. Dec. 661; while in others it is held to be founded on the original demand, and that the new promise merely operates to remove the presumption of payment from lapse of time: Van Alen v. Fellz, 4 Abb. App. Dec. 439; S. C., 42 Barb. 139; Newlin v. Duncan, 1 Harr. (Del.) 204; S. C., 25 Am. Dec. 66; Kyle v. Wells, 17 Pa. St. 286; S. C., 55 Am. Dec. 555. An allegation that the party to be charged "has in writing acknowledged and promised to pay" involves an allegation of the signature: Porter v. Elam, 25 Cal. 292. The burden is on the defendant of proving, that the debt acknowledged is not the one sued on: Morrell v. Ferrier, 1 West Coast Rep. 277; Martin v. Broach, 6 Ga. 21; S. C., 50 Am. Dec. 306. The sufficiency of the promise or acknowledgment to take the case out of the operation of the statute is a question for the court, while the determination of the facts claimed to constitute such promise or acknowledgment is for the jury: Mor rell v. Ferrier, and Martin v. Broach, supra.

Instances. It is impossible to enumerate here more than a few instances of the sufficiency of acknowledgments and promises to revive a debt or take it out of the operation of the statute. A full collection of the cases will be found in Wood on Limitations, c. 7. Where a debtor wrote, "I will pay as soon as possible," it was held a sufficient acknowledg ment and promise: Norton v. Shepherd, 48 Conn. 141; S. C., 40 Am. Rep. 157; Abrahams v. Swann, 18 W. Va. 274; S. C., 41 Am. Rep. 292. Letters inclosing checks for monthly interest, and saying they were for interest on the loan for certain months, was held a sufficient acknowledgment: Barron v. Kennedy, 17 Cal. 577. An executor including in an inventory notes given by himself which are then barred, has been held to be a sufficient acknowlcdgment: Ross v. Ross, 6 Hun, 80;

Clark v. Van Amburgh, 14 Id. 557; Morrow v. Morrow, 12 Id. 386. A new promise to pay a debt is not inferred from the debtor's including such debt in his schedule of debts filed with his petition for the benefit of the insolvent law: Hidden v. Cozzens, 2 R. I. 401; S. C., 60 Am. Dec. 93; Christy v. Flemington, 10 Pa. St. 129; S. Č., 49 Am. Dec. 590; Gilman v. Dwight, 13 Gray, 356; S. C., 74 Am. Dec. 636. But see contra, Stuart v. Foster, 28 How. Pr. 273. A promise to "pay all indebtedness" is sufficiently specific to embrace the only debts shown to be owing: Belloc v. Davis, 38 Cal. 243. A letter asking a "bill of items of your account," and promising satisfaction, is sufficient: Chace v. Higgins, 1 Thomp. & C. 229. An acknowledgment by the defendant that the items in the plaintiff's account are just, but that he has some offsets thereto, and a subsequent promise to settle all differences, and account fairly, and not to take advantage of the statute of limitations, is not sufficient to remove the bar of the statute: Sutton v. Burress, 9 Leigh. 381; S. C., 33 Am. Dec. 246; Harlan v. Bernie, 22 Ark. 217; S. C., 76 Am. Dec. 428. An admission by a defendant that a debt has only been paid in part amounts to a waiver of the statute and an acknowledgment of the debt: McClenney v. McClenney, 3 Tex. 192; S. C., 49 Am. Dec. 738. An offer to compromise, coupled with an expressed unwillingness to pay and determination not to pay if rejected, is not an acknowledgment within the statute: Creuse v. Defigandere, 10 Bosw. 122. The use of words "audited and approved" and " certify the above to be correct," written on an account by trustees of an association, was held to create a liability of a higher character than that arising from a mere account, and constituted the matters sued upon instruments of writing within the meaning of the statute: Sannickson v. Brown, 5 Cal. 58. A memorandum on a bond signed by the obligee acknowledging payment of part of the debt, and extending the time, was held not an instrument signed by the party to be charged: Pena v. Vance, 21 Cal. 149. A demand is not taken out of the operation of the statute by

we

a written acknowledgment found among the debtor's papers after his death: Allen v. Collins, 70 Mo. 138; S. C., 35 Am. Dec. 416. A new promise made in ignorance of the fact that the promisor is legally discharged from all liability is void: Kenan v. Holloway, 16 Ala. 53; S. C., 50 Am. Dec. 162.

Payment. The statute preserves the common-law rule that partial payment of principal or interest will continue the debt: See Smith v. Ryan, 66 N. Y. 352. A part payment ordinarily is held to furnish evidence from which a new promise may be inferred: McLaren v. McMartin, 36 N. Y. 88. But in this state, by reason of the wording of § 25, post, a different construction is given: See the note to § 25. To be operative, the part payment must be voluntary: Miller v. Talcott, 46 Barb. 167; S. C., 54 N. Y. 114; and must be on account as part payment of the larger debt: Arnold v. Downing, 11 Barb. 554; for if paid and received in full of all demands, it will operate as such, and not as part payment to take the balance out of the operation of the statute: Berrian v. Mayor, 4 Rob. 538. Payment may be proved by parol, to effect the object of taking the case out of the operation of the statute: First Nat. Bank v. Ballou, 49 N. Y. 155. A payment by operation of law, or acknowledged by the creditor on account of an equitable set-off or counterclaim, which the debtor might insist upon, but which he has never claimed to have applied as such, is not such a payment as will operate to prevent the statute from running: Anderson v. Baxter, 4 Or. 105.

To and by whom to be made. - Such payments only as are made by the debtor or his authorized agent will operate to prevent the bar of the statute: Harper v. Farlie, 53 N. Y. 442; Kelley v. Webber, 15 N. Y. Week. Dig. 230. A payment by one of several joint contractors is sufficient: Partlow v. Singer, 2 Or. 307; Sutherlin v. Roberts, 4 Id. 378; though unknown to the others. Payment by an attorney prevents a bar of the client's right to sue him for collections which he has made and wrongfully retained: Torrance Strong, 4 Ïd. 39. See the note to the next section.

V.

§ 37.

Effect of section generally.This section which is enacted in many of the states produced a revolutionary effect on the common law of parties plaintiff. Its effect will be found fully discussed in Pomeroy's Remedies, sec. 124; 1 Bates on Code Pleading, 1; and in Bliss on Code Pleading, 45. In cases where it applies, this section merely enacts the rule which always prevailed in equity, that a person beneficially interested may maintain a suit in his own name to enforce his rights: Grinnell v. Schmidt, 2 Sand. 707; Beerlew v. Hallinan, 16 N. J. Eq. 25; Wheatley v. Strobe, 12 Cal. 98; Wiggins v. McDonald, 18 Id. 126; Gradwohl v. Harris, 29 Id. 150; Grain v. Aldrich, 38 Id. 514.

Failure to bring the action in the name of the real party in interest will be fatal thereto: Dubbers v. Goux, 51 Cal. 153; Davis v. Mayor of N. Y., 14 N. Y. 506; Clark v. Clark, 20 Ohio St. 128; Galpin v. Lamb, 29 Id. 529; Smith v. C. & N. W. R. R., 23 Wis. 267; and the defect cannot be cured by amendment: Dubbers v. Goux, 51 Cal. 153; Clark v. Clark, 20 Ohio St. 128.

The word "prosecuted," when taken in connection with §37, must be taken to mean that all actions must be commenced in the name of the real party in interest: Elliot v. Teal, 5 Saw. 190.

The objection may be raised by general demurrer that the complaint does not state facts sufficient to con

stitute a cause of action: People v. Haggin, 57 Cal. 579.

Who is real party in interest. -It is generally, but not always, easy to ascertain who is the real party in interest. One is said to be such if he has a valid transfer as against the assignor and holds the legal title to the demand: Freeman v. Falconer, 45 N. Y. Sup. Ct. 384; Sheridan v. Mayor, 68 N. Y. 30.

In order to maintain an action, the plaintiff must have a real and subsisting interest at the time of the commencement of the suit: Dugas v. Truxillo, 15 La Ann. 116; Leberman v. N. O. & Fla. & St. S. Co., 28 Id. 412. An interest entirely contingent and unascertained, that may never have an actual existence, i. e., a bare possibility, is not sufficient: Keene's Appeal, 60 Pa. St. 510. In an action for breach of contract, the plaintiff must be a party or privy to the contract: Clancy v. Byrne, 56 N. Y. 129. Where an action is commenced on a contract by one not a party to it, his interest should be affirmatively shown by proper allegations in the petition or complaint: Hicklin v. Nebraska City N. Bank, 8 Neb. 465. A principal may sue on the contracts of his agent in the latter's name, whether described as such or not, and though the agency was not disclosed: Hall v. Plaine, 14 Ohio St. 417; St. Louis etc. R'y Co. v. Thacher, 13 Kan. 564; First Div. etc. R'y Co. v. Ames, 12 Minn. 412; Nicoll v. Burke, 73 N. Y. 580.

Whether the consignor or consignee is the real party in interest, in suing a carrier for goods not delivered is a question of title in the goods: See Krulder v. Ellison, 47 Id. 36; Van Rensselaer v. Barringer, 39 Id. 9. One holding choses in action as collateral security may enforce payment of them by suit in his own name to satisfy his own demand: Nelson v. Elcards, 40 Barb. 279; Greene v. Tallman, 20 N. Y. 191; S. C., 75 Am. Dec. 381. Assignees of policies of insurance must sue as the real parties in interest: Bergson v. Builder's Ins. Co., 38 Cal. 541; Bibend v. Liverpool F. & L. I. Co., 30 Id. 78; so must assignees of judgments: Fore v. Manlove, 18 Id. 436; but not of judgments for non-assignable torts: Lawrence v. Martin, 22 Id. 173.

The person to whom an order is given by a creditor upon his debtor must sue in his own name, although the debtor has not accepted the order: McEwen v. Johnson, 7 Cal. 260; Wheatley v. Strobe, 12 Id. 92; Walker v. Mauro, 18 Mo. 564; Pope v. Huth, 14 Id. 403. A mere transferee for collection is not the real party in interest, and cannot sue on a note in his own name: Taylor v. Surget, 14 Hun, 516; Bell v. Tilden, 16 Id. 346. Assignees of claims for collection, where they have the legal title and an interest to the extent of their compensation from the proceeds, may sue in their own name: Curtis v. Sprague, 51 Id. 239; Hays v. Hathorn, 74 N. Y. 486. Assignees of negotiable notes not indorsed are the real parties in interest: Osgood v. Aritt, 17 Cent. L. J. 190; Andrews v. McDaniel, 68 N. C. 385; Fultz v. Walters, 2 T. B. Mon. 165; Weeks v. Med ler, 20 Kan. 57; and so are transferees of negotiable instruments: McCann v. Lewis, 9 Cal. 216; Price v. Dunlap, 5 Id. 453; Gushee v. Leavitt, 5 Id. 160. But the mere holder of a note without any interest in it can no longer maintain an action on it: Parker v. Totter, 10 How. Pr. 233; Clark v. Phillips, 27 Id. 87: Prall v. Hinchman, 6 Duer, 351. Transferees of non-negotiable instruments are the real parties in interest: Lucas v. Pico, 55 Cal. 126; so is the assignee of a promise to pay in consideration of the promisee's ceasing to defend a suit: Gray v. Garrison, 9 Id. 325; or of a lease of a stallion for a certain time: Doll v. Anderson, 27 Id. 248; of a claim

against a city under a contract: Wet- Oct. 11, 1862. more v. San Francisco, 44 Id. 295; of a right of action for the conversion of personal property: Lazard v. Wheeler, 22 Id. 142; or for damages to real estate: More v. Massini, 32 Id. 592. Actions for breaches of covenants which do not run with the land cannot be brought in the name of the grantee of the realty: Lawrence v. Montgomery, 37 Id. 189; nor can an action be maintained by the assignee of one not the real party in interest: Skewes v. Dunn, 1 West Coast Rep. 628 (Utah). An assignee for the benefit of creditors may sue in his own name: Mellen v. Hamilton F. I. Co., 17 N. Y. 609; Lewis v. Graham, 4 Abb. Pr. 106.

In the case of an assignment of part of a demand, when made with the knowledge and consent of the debtor, the assignee may sue alone for his portion: Grain v. Aldrich, 38 Cal. 514; nor in any event is the assignee a necessary party to the action brought by the assignor for his portion: Leese v. Sherwood, 21 Id. 152. Where the assignment is absolute, the assignee may sue for and recover the entire amount, even though by the assignment he acquired only a portion of the demand: Gradwohl v. Harris, 29 Id. 150. That an action cannot be maintained by the assignee of a portion of the claim without the consent of the debtor, see Thomas v. Rock Island Co., 54 Id. 578. There must be an express agreement or distinct ratification by the debtor to authorize such an action: Grain v. Aldrich, 38 Id. 514; Marizou v. Pioche, 8 Id. 536. If the debtor does agree, the action will lie: McEwen v. Johnson, 7 Id. 260. And that an assignment of part in the absence of the debtor's assent is valid

in equity, see Grain v. Aldrich, supra.

Partnerships, how may sue: See chapter 43, miscellaneous laws, post.

Assignability of things in action: See Pomeroy's Remedies, sec. 144, where the author in commenting on the latter clause of this section of the code concerning the assignability of things in action, claims that it is practically useless, and that it does not affect the existing law on the subject. He says: "The section does not authorize the assignment of any things in action either growing out of tort or out of contract, and it was therefore an