nicuox v. mnmorr. 19
concerned, upon his right and liabilities, and it could make no differ-
ence in the opinion or action of the court whether Elliott or his as-
signee had the ultimate benefit of its decree. Nor was the proceed- `
ing in violation of that provision of section 27 ofthe Gods of Civil
Procedure, which declares that "every action shall be prosecuted in
the name of the real party in interest." In my judgment the term
"prosecutcd" is used in this section in the sense of "commenced,"
and does not prevent a party from assigning his interest in the sub-
ject-matter of an action after it has been duly commenced, or require
that the assignee shall make himself a party thereto, or dismiss the
same and commence another action in his own name. And so the
provision appears to have been construed in Garrigue v. Locscher, 3
Bosw. 578, cited in Waits Annotated Code, 115. But, if a suit is
even brought in the name of a party after he has assigned his interest
in the subject-matter, the objection is waived unless made by answer.
Whether an action is brought in the name of the assignor or assignee
is a mere matter of form and convenience, and does not touch the
merits of the controversy. The statute is enabling rather than re-
strictive, and is intended to authorize an assignee of a chose in action
to sue in his own name rather than to compel him to. Besides, El-
liott was not a plaintiff in the suit with his partners, and did not
commence or prosecute it, although it may be inferred, from the fact
that a decree was given in his favor, that by a cross-hill, or other-
wise, he sought and obtained relief therein.
E1liott’s interest in the firm of Ben Holladay & Co. having been
duly assigned to the plaintiff, pending the suit in the state court to
dissolve the same and ascertain the interests of the several partners
therein, thereafter the same was maintained and conducted, so far as
Elliott-was or is concerned, in his name, for the benefit of his assignee,
according to the terms and purpose of the assignment. And the de-
cree obtained therein, in the name of Elliott, is considered in equity
·as a decree in favor of Hickox, his assignee. The thing assigned was
Elliott’s interest in the partnership,—a matter yet unknown, and to be _
ascertained in the pending suit thereabout; andthe subsequent de-
cree therein represented and stood for that interest, and passed by _
the assignment to Hickox as soon as it was made or came into exist-
ence. Field v. Mayor, etc., 6 N. Y. 179; Williams v. Ingersoll, 89
N. Y. 508; Wright v. Parks, 10 Iowa, 342; 1 Pom. Eq. Jur. § 168;
Story, Eq. Jur. § 1040.
Another ground of the demurrer is that there is a defect of parties.
And, nrst, it is claimed that Martin White, the cestui que trust, ought to i
have been joined in the bill with the trustee as plaintiff. ‘ It is admitted
that the general rule is that, in a suit respecting trust property, brought ·
either by or against the trustee, thecestui que trust or beneficiary is.
a necessary party. Story, Eq. Pl. § 207. B11t to this rule there are
exceptions, and this case falls within `one of them. When the suit
bythe trustee is merely to recover or to reduce to possession the trust