Oral evidence. unless the instrument is impeached for fraud, while in contracts not under seal, a consideration must be alleged and proved. In this State there is a statute which authorizes the introduction of evidence to show a want of consideration in a sealed instrument. 2 R. S. 406, § 77. The mode of executing or proving deeds need not be noticed in this place. Instruments in writing, and not under seal, are very numerous and in daily use, and the proper execution, and due proof of them on a trial, is an essential part of a case. Wills form an important class of writings, especially as to the mode of their execution, and in making due proof of them. Stamps are essential to the validity of many instruments, and the affixing and proper cancellation of them will always be a subject of attention. Written memoranda may be evidence in some cases, though a mere mention of them is all that is here intended. ARTICLE IV. ORAL EVIDENCE. Section 1. Witnesses. Nearly every case depends, to a greater or lesser extent, upon the evidence given by living witnesses, orally, in open court. To secure their attendance is one of the most important steps, in preparing a cause for trial. Section 2. Depositions. When the personal attendance of a witness cannot be procured, or when it is equally available in the form of a deposition, the party desiring the evidence may secure it by means of a commission, if issued in due time, and in a proper manner. Section 3. Perpetuating evidence. Whenever any kind of evidence may be lost to a party, his first duty is to take such steps as may be in his power to secure its preservation. This is especially true when that evidence rests in the recollection of a single person, who may be old, sick, or otherwise liable to sudden death. In all such cases, prompt measures for the perpetuation of his testimony is an indispensable duty. Section 4. General remarks. The most important part of a lawyer's duty, in every case, is to see that it does not fail from the want of evidence which due care and diligence would have Oral evidence. secured. To lose a cause, or to fail in a defense, from such a neglect of duty, is a gross wrong toward a client who has risked his cause to one who was so unworthy of public or private confidence. If a cause must be in any manner neglected, let it not be in the direction of failing for want of proofs which were in existence, and available if properly procured. It is the duty of every practitioner to understand the law of his case; but, if he is not as well prepared upon this point, the learning of the presiding judge will furnish and apply the proper rule of law as a part of his duties; though he will never, if he could, supply the defects arising from a want of proofs, which the culpable neglect of the attorney has rendered unavailable. CHAPTER IX. PARTIES TO ACTIONS. ARTICLE I. WHO MAY SUE IN THE COURTS OF THIS STATE. Section 1. The real party in interest. a. In general. Under the former practice, the rules of law and of equity were widely dissimilar, in regard to the proper parties to an action. At common law, every action upon contract was required to be brought by the contracting party, if living, or by his legal representative, if dead. In actions for torts, the party doing, or receiving an injury, must be made plaintiff or defendant, and, on the death of either party, the right of action died also. Choses in action were not assignable at common law, so as to authorize the assignee to sue in his own name, yet the assignee was allowed to prosecute an action for their recovery in the name of the assignor, upon the principle that the assignor held the legal right for the use and benefit of the assignee. And, in general, the holder of the legal right was made the plaintiff in the action. Anderson v. Martindale, 1 East, 497; Jessel v. Williamsburgh Ins. Co., 3 Hill, 88; Mann.v. Herkimer Co. Mutual Ins. Co., 4 id. 187; Luckey v. Gannon, 1 Sweeny, 12 (17); S. C., 37 How. 134; 6 Abb. N. S. 209. See Grinnell v. Buchanan, 1 Daly, 538. Under the old chancery practice, however, the suit must be brought by the real party in interest, and the mere nominal owner of the right of action who had no interest in it could not sue, unless he held such nominal interest as trustee. Rogers v. Traders' Ins. Co., 6 Paige, 583 (597); Field v. Maghee, 5 id. 539; Oakey v. Bend, 3 Edw. Ch. 482. The practice, as it existed in equity, is substantially retained under the Code, so far as it relates to parties to an action. Brownson v. Gifford, 8 How. 389 (395); Hollenbeck v. Van Valkenburgh, 5 id. 281 (285); S. C., 1 Code R. N. S. 33; Wallace v. Eaton, 5 How. 99; S. C., 3 Code R. 161. The common-law rule has ceased to exist in this State since the adoption of the Code. Luckey v. Gannon, 1 Sweeny, 12 (17); S. C., 37 How. 134; 6 The real party in interest. Abb. N. S. 209; Fowler v. N. Y. Indemnity Ins. Co., 23 Barb. 143 (145). By the requirements of that act it is made necessary that every action shall be prosecuted in the name of the real party in interest, except actions brought by an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute to sue; in which actions, it is unnecessary to join as plaintiff, the person for whose benefit the action is prosecuted. Code, §§ 111, 113; Hoogland v. Hudson, 8 How. 343; Mead v. Mitchell, 5 Abb. 92 (106); S. C. affirmed, 17 N. Y. (3 Smith) 210. It is obviously impossible to give any universal rule by which to determine who is or who is not the real party in interest in every controversy. The right of ownership alone will furnish no reliable test, for while, as a general rule, the owner of a chattel is the proper party to bring an action for its possession, or to recover damages for its injury, a party having no right of ownership, but only a special interest in the property accompanied by possession, may also maintain an action for the same purpose. Harrison v. Marshall, 4 E. D. Smith, 271; Paddock v. Wing, 16 How. 547; Green v. Clarke, 12 N. Y. (2 Kern.) 343. Neither will possession under title give an exclusive right of action, as a remainder-man in fee may maintain an action for an injury done to the inheritance, although a separate action might be maintained for the same cause by the owner of an intervening life estate. Van Deusen v. Young, 29 N. Y. (2 Tiff.) 9. Neither will the character of the interest, as whether legal or equitable, furnish a reliable test by which to determine the real party in interest. A person in possession of lands, under a contract to purchase, is deemed the equitable owner, and may maintain an action to recover damages for injuries thereto. Rood v. New York and Erie R. R. Co., 18 Barb. 80. So a party who has redeemed land sold on execution, after receiving the sheriff's deed, may maintain an action in the nature of waste against any person who, intermediate the sale and the deed, cuts timber and takes it from the premises. The legal estate is deemed vested in the grantee by relation as of the time of the sale. Thomas v. Crofut, 14 N. Y. (4. Kern.) 474; Potter v. Cromwell, 40 N. Y. (1 Hand) 287. It is a general rule, capable of practical application, that the party who will be directly benefited by the successful prosecution of an action, and who will be entitled to receive the damages recov ered, is the proper party to be made plaintiff in the action. Thus, in an action upon a promissory note, the party having the whole The real party in interest. interest therein, whether his title to the note is legal or equitable, whether he was an original party to the instrument, or merely the owner by assignment, and whether the note is in his possession, or that of a third party, is the real party in interest. Hastings v. McKinley, 1 E. D. Smith, 273; S. C. affirmed, Seld. Notes, Nos. 4, 19; Savage v. Bevier, 12 How. 166; Selden v. Pringle, 17 Barb. 458; Cummings v. Morris, 3 Bosw. 560 (576); S. C. affirmed, 25 N. Y. (11 Smith) 625. So where the statute imposes a penalty for fraud, to be sued for, for the benefit of the person or persons upon whom the fraud is committed, and where the statute does not, in terms, specify who shall be the plaintiff, the action should be brought in the names of the persons for whose benefit the suit is prosecuted, or, in the words of the Code, in the name of the real party in interest. Thompson v. Howe, 46 Barb. 287. So, in general, where a pecuniary penalty or forfeiture is specially granted by law to any person injured or aggrieved by the act or omission of another, the action must be brought by the person to whom the penalty is granted. Ib. 2 Wait's Law and Prac. 284. b. Exceptions to the rule. The section of the Code which contains the requirement that every action must be prosecuted in the name of the real party in interest, also contains the exceptions to the rule, and specifically provides that an executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted. Code, §§ 111, 113. These exceptions are important, and will be fully discussed under appropriate heads, in a subsequent part of this chapter. See 7 and 8, post. So an action may be maintained by a grantee of land in the name of a grantor, or his or her heirs or legal representatives, when the grant or grants are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant, and the plaintiff will be allowed to prove the facts to bring the case within this provision. Code, § 111. It is also provided that the section of the Code above cited shall not be deemed to authorize the assignment of a thing in action not arising out of contract. This leads to the consideration of the effect of an assignment of the subject of an action, as affecting the right to sue. |