By the general rule, " Every action must be prosecuted in the name of the real party in interest."
That the plaintiff is the party really in interest is averred in the complaint, and it is not denied in the answer, and the truth of the averment is manifest on the face of the bond.
If this shouldbe regarded as a case within the sixth section of the Practice Act, then it is insisted that the word " may" in that section is not compulsory, but permissive merely.
" May," in a statute means must, or shall, in those cases only, where the public, or third persons have a claim de jure to have the power exercised. But where no public right is concerned, but private interests only, the word clothes the interested party with a discretion. (5 John. Ch. 101, N. & C. Turnpike Road v. Miller; 1 Pet. 64, Minor v. The Mechanics' Bank; 5 Cow. 188, Malcolm v. Rogers; 2 Salk 609, Rex v. Barlow; 3 Atk. 164, Attorney-General v. Lock; 1 Ver. 152, Blackwell's Case; Skinner, 370, King v. Inhabitants of Derby; 3 Hill, 612, The Mayor of New York v. Furze; 1 Dowl. & R. 148, The King etc. v. Mayor of Hastings; see Smith's Com. on Con. and Stat. Construction, sec. 585, et seq. )
By the old rule in equity, trustees and beneficiaries should always join and be joined, but compliance with this rule was not unfrequently attended with much inconvenience, hence the legislation authorizing the beneficiaries to sue alone, as being the real parties in interest, andtrustees to sue alone when, as a matter of convenience to parties, it should be deemed advisable.
It is insisted that the bond is good as a voluntary bond, on the principles of the common law.
The order under which the bond was given was not mandatory even, but presented two alternatives, and left Bartol free to choose between them.
The Court had power to present these alternatives. (8 Paige, 565; The Sea Ins. Co. v. Stebbing et al. )
JUDGES: Murray, C. J., delivered the opinion of the Court. Burnett, J., concurring.
OPINION
MURRAY, Judge
This is an appeal from an order overruling a motion for a new trial. The plaintiff filed a bill in equity against Bartol and others, to enforce an interest in a trust-fund, which had been assigned to Bartol, alleging fraud, etc., and prayed for a receiver, pending the litigation. The Court below refused the order for a receiver, provided said Bartol would file a bond to account as receiver for all goods and moneys which had come into his possession, belonging to the defendants, and to pay them over according to the decree of the Court. A bond was given in conformity with the order of the Court, payable to the State of California; a judgment for twenty thousand dollars was rendered against the defendants, a copy of which was served on Bartol, and payment demanded, which was refused, and thereupon this suit was brought upon the bond.
The appellants contend
1. That they are not liable, because the Court had no power to exact a bond from Bartol; and,
2. That the suit should have been brought in the name of the State.
It is true that the Court had no power to compel the defendant to execute the bond in question, but it undoubtedly had the power to appoint a receiver, and if Bartol chose to execute a bond, rather than pay the money over to the officer of the Court, it was a voluntary act upon his part, and the bond was good as a common law bond. In this respect, he is not to be considered as a receiver or officer of the Court, but as a party who, for a personal accommodation, has assumed a legal responsibility, and after receiving its benefits on his part, should be estopped from denying its legality.
This view of the case disposes of several objections to the judgment, arising out of the supposed nature of the contract of the sureties.
The second ground of error is untenable. 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. The declaration and bond show, beyond all doubt, that Baker, the present plaintiff, is the true party in interest, and there was no error in declaring in his own name.
Judgment affirmed.