Page:Compiled Laws of the State of North Dakota 1913 vol II.pdf/42

== CODE CIVIL PROCEDURE ==

Civil Actions §§ 7395-7397
In whose name bond or public officer intended as a statutory bond but not binding as such, may be enforced. 21 L.R.A. (N.S.) 771.

Who may enforce restrictive covenant or agreement as to use property. 37 L.R.A. 12.

Who may bring suit to enforce subscription for charity. 48 L.R.A. (N.S.) 808.

Right of a third party to sue upon a contract made for his benefit. 25 L.R.A. 257; 9 L.R.A. (N.S.) 783.

Right of creditor to enforce promise of one allowed to secure property at judicial sale on faith of his promise to pay owner's debt. 15 L.R.A. (N.S.) 399

Right of third person to maintain action upon promise of beneficiary to insured to pay all or party of proceeds of policy to such third party. 22 L.R.A. (N.S.) 639.

Will breach of contract with municipality to keep a street or highway in repair sustain an action by a person inured directly against the contractor. 39 L.R.A. (N.S.) 1112

May one, not a party to an agreement, injured thereby in his business, assail the validity thereof on the ground that it tends to create or promote a monopoly. 26 L.R.A. (N.S.) 148.

Consumer's right to maintain suit to compel water company to furnish water at rates stipulated in contract with municipality. 1 L.R.A. (N.S.) 958.

Right of property owner to maintain action against water company for failure to supply sufficient water for fire purposes, as required by its contract with municipality 6 L.R.A. (N.S.) 1171; 21 L.R.A. (N.S.) 1021.

Right of subcontractor, materialman or laborer to maintain action on contractor's bond to owner. 27 L.R.A. (N.S.) 573

Right of holder to past due corporate bonds or coupons to maintain action at law thereon as affected by provisions of trust deed authorizing proceedings by trustee. 49 L.R.A. (N.S.) 155

Right of consignee to maintain action against carrier. 36 L.R.A. (N.S.) 68.

Right of one who is to be notified of arrival of goods consigned to another, to maintain action against carrier. 39 L.R.A. (N.S.) 309

Effect of assignment of claim ex delicto to one against whom it was asserted, to enable him to maintain an action thereon against a third party. 7 L.R.A. (N.S.) 534.

Right of indorser of lost bill, check or note to maintain action thereon. 24 L.R.A. (N.S.) 645.

Right of citizen to enforce a contract made for benefit of public. 49 L.R.A. (N.S.) 645.

Right of citizen to enforce a contract made for benefit of public. 49 L.R.A. (N.S.) 1166.

Right of citizen or taxpayer to maintain proceedings in aid of the enforcement of the liqour laws. 14 L.R.A. (N.S.) 1156

Right of taxpayer in absence of statute to enjoin unlawful expenditures by municipality. 36 L.R.A. (N.S.) 1.

As to similar provision in Cal. Code Civ. Proc., § 367, see Los Robies Water Co. v. Stoneman. 164 Cal. 203, 79 Pac. 880; Page v. Garver, 146 Cal. 577, 80 Pac. 860; Anglo-Californian Bank v. Cerf, 147 Cal. 384, 81 Pac. 1077; Churchill v. Woodworth, 148 Cal. 669, 113 Am. St. Rep. 324, 84 Pac. 155.

As to similar provision in Iowa Code, 1873 § 2543 (§ 3748, McClain's Anno. Code). see State v. Butterworth, 2 Iowa, 158; The Pembinaw v. Wilson, 11 Iowa, 479: Bennett v. Stoddard, 58 Iowa, 654, 12 N.W. 627; McCormick v. Williams, 54 Iowa, 50, 6 N.W. 138.

As to similar provisions in N.Y. Code. Civ. Proc., § 449, see Brown v. Powers, 53 App. Div. 251, 65 N.Y. Supp. 733.

'''§ 7396. Assignee. Equities.''' In the case of an assignment of a thing in action the action be the assignee shall be without prejudice to any set-off or other defense existing at the time 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.

[R.C. 1905, § 6808; C. Civ. P. 1877, § 75; R.C. 1899, § 5222.]

As to set-off this section must be construed with Compiled Laws § 4915 (S.D. Rev. Code Civ. Proc., § 127; N.D. Rev. Code, § 5274). Kirby v. Jameson, 8 S.D. 8, 67 N.W. 854.

As to "assigns" not applying to indorsee of note. National Bank of Commerce v. Pick, 13 N.D. 74, 99 N.W. 63.

Action to foreclose security for nonnegotiable note assigned to plaintiff is without prejudice to any defense existing before notice of assignment. Barry v. Stover, 20 S.D. 459, 129 Am. St. Rep. 941, 107 N.W. 672

On the right to interpose counterclaim in action by one party to agreement although suit might be brought against all original promisors for same subject matter. Olson v. McQueen, 24 N.D. 212, 139 N.W. 522.

§ 7397. Executors and trustees. 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.