cured by mortgage, assigns the debt and mortgage, a judgment in favor of a third person against the creditor, purchased by the debtor after the assignment, but before notice of it to him, constitutes an offset pro tanto to the debt in an action upon it by the assignee. 20 Cal. 509.

SEC. 11. Accounts or demands, as in cases of set-off in other courts, must have existed at the commencement of the suit. So a breach of a promise to discontinue a suit cannot be set off in that suit. 8 Johns. 470.

SEC. 12. In an action in a justice's court upon a money demand, the defendant cannot set up in his answer, as a counter-claim or set-off, a demand amounting, exclusive of interest, to more than two [three] hundred dollars. justice of the peace has no jurisdiction to pass upon a counter-claim or set-off, unless it be for such a sum as the defendant might have maintained an action on against the plaintiff in a justice's court. 23 Cal. 61.

SEC. 13. A party sued before a justice cannot file, as an offset, an account exceeding the justice's jurisdiction, although by giving credit for the plaintiff's demand, he reduces his own claim within the limit of his jurisdiction. 20 Miss. (5 Bennett) 497.

SEC. 14. If the defendant cannot substantiate the whole of the set-off offered by him, the justice ought not wholly to reject it; but if any part is proved, it ought to be allowed. 10 Johns. 110.

Judgment may be Set off.

SEC. 15. Where the parties to two judgments are not the same, a court of common-law jurisdiction cannot set off one against the other. 23 Cal. 596.

SEC. 16. The power of a court to set off one judgment against another, upon motion, is well established, and this power depends mainly upon the general jurisdiction of the court over its suitors and process. Barbour on Set-off, 32. And a purchaser and assignee of a judgment, even for a valuable consideration and without notice, takes subject to a right of set-off existing at the time of the assignment, for an assignee takes subject to all equitable as well as legal defenses which can be urged against the assignor. Graves

vs. Woodbury, 4 Hill, 559; Cooper vs. Bigelow, 1 Cow. 206. And the fifth section of the practice act recognizes the same principle. 22 Cal. 432, 433.

SEC. 17. Set-off of one Judgment against Another.—A person may receive the money due on a judgment rendered in favor of himself and several others, co-plaintiffs, but he cannot without authority from his co-plaintiff set off a judg ment due to him and them jointly against another judgment held by the defendant in such joint judgment against himself alone. 35 Cal. 195.

SEC. 18. Set-off of Improvements against Rents.-In ejectment, the fact that the defendant has made permanent and valuable improvements, in good faith and under color of title, is no defense to the action; but if such fact is set up in the answer in such language as to contain the essential facts to justify a set-off of the value of improvements against rents, it will be treated as a good answer for that purpose, although no offer is made of such set-off. Anderson vs. Fisk, 36 Cal. 625.

SEC. 19. A party does not lose his right to bring an action for a demand which he might have pleaded as a setoff in a former action, but neglected to do. 23 Cal. 597.

SEC. 20. An omission. to assert a cross-claim when a demand is presented for payment, does not involve a waiver of the counter-claim, nor is a failure to discharge an unfaithful servant before his term of service has expired a release of damages arising from his neglect. 26 Cal. 294.

By what Names Parties to be Styled.

SECTION 1. In a civil action, the party complaining shall be known as the plaintiff and the adverse party as the defendant. Gen. Laws, 4941, 5464.

The State.

SEC. 2. Liability to be sued has no necessary connection with ability to sue. The state can sue in all cases, but she is only subject to be sued in the instances specially provided by law (18 Cal. 59); and in the absence of any statute permitting her to be sued, any judgment against her would be erroneous. 6 Cal. 258.

Counties.

SEC. 3. The people of a county are not a corporation, nor can they sue or be sued. 15 Cal. 33.

SEC. 4. Boards of supervisors cannot be sued in their official character, in ordinary common-law actions, for claims against the public, county or village, they represent, without express statutory provision. 18 Cal. 49.

SEC. 5. But counties are quasi corporations, and the power to sue and to be sued is given in general terms by an act prescribing the manner of commencing and maintaining suits by or against counties, passed May 11th, 1854. 6 Cal. 255.

SEC. 6. The statute gives to counties the right of prosecuting and defending all actions in the same manner and with the same effect as individuals. 8 Cal. 305.

In whose Names Actions to be Prosecuted.

SEC. 7. Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in the act to regulate proceedings in civil cases in the courts of justice of this state. Gen. Laws, 4943, 5464.

SEC. 8. Formerly, where a bond was given to an officer, state or corporation, suit had to be brought in the name of the party holding the legal title for the benefit of the persons interested, but our statute has introduced a new rule, and by the provisions of the practice act the suit must be prosecuted in the name of the real party in interest. Therefore, the plaintiff being the real party in interest has a right to sue upon a bond, though made payable to the people of the state. 7 Cal. 554,

SEC. 9. Whatever the rule may be under the old system under our system the right of action is in the party sustaining the injury; for, on a recovery, the other party, if entitled to receive the money at all and if judgment were had in the name of both, would hold it by right of and as a trustee for the other; and our practice act for convenience has given the right to sue to the party beneficially entitled to the fruits of the action. 10 Cal. 347.

SEC. 10. Where there are several obligees in an undertaking promising to pay "said parties enjoined,” etc., suit may be brought in the name of one alone, if he be beneficially entitled to the fruits of the recovery (13 Cal. 591), or if the property on which the injunction operated was his sole property, and the injury his alone, the complaint averring these facts. 15 Cal. 9.

SEC. 11. But a factor may sue in his own name where the goods have come into his actual possession, and where by reason of such possession he has a special property in them, and is entitled to maintain an action for injuries to them, and when sold for the price. 1 Cal: 83. The consignee named in a bill of lading is to be deemed prima facie the owner of the goods mentioned therein, and upon payment of freight may maintain an action against any person who assumes a control over them in violation of his right of property. 1 Cal. 417.

SEC. 12. An agent may sue in his own name at law on a note payable to him, although it describes him as agent of another. 1 Cal. 78; 5 Cal. 516.

SEC. 13. An assignment of an account by indorsement of the word "assigned" signed by the owner of the account, is sufficient to show the intention of the parties, and the assignee may bring an action in his own name. It is not error to permit the plaintiff, the assignee, to amend on the trial the assignment by inserting the words: "For value received, I hereby assign the within account," instead of the word "assigned"-the additional words being mere surplusage. The right of an assignment of an account existed before the passage of the practice act of 1854, and the right of the assignee to sue in his own name is given by the first section of the amended practice act of 1855. 6 Cal. 247, 248.

SEC. 14. To entitle the assignee of a judgment to bring suit in his own name upon the appeal bond filed in the cause he must have an assignment of the bond. The assignment of the judgment, whlle it may give him equitable rights to avail himself of the security afforded by the bond, cannot confer the right of bringing a common-law action upon it. 6 Cal. 88.

SEC. 15. An assignment by a creditor of a portion of a debt does not make the assignee a joint owner of the whole debt, and he is not a necessary party to a suit for its recovery. 21 Cal. 152.

SEC. 16. In the case of an assignment of a thing in ac tion, the action by the assignee shall be without prejudice to any set-off or other defense existing at the time of or before notice of the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange transferred in good faith and upon good consideration before due. Gen. Laws, 4944, 5464.

SEC. 17. If several persons associate themselves together and form a corporation, they cannot be sued as individuals for its debts. It is recognized in law only by its corporate name, and must sue and be sued by its corporate 26 Cal. 633.

name.