star-pagination">*Page 417 If Hooper had any interest in the event of the action, he was nevertheless an admissible witness under the Code. (§§ 398, 399.) The referee, therefore, decided correctly in refusing to strike out his testimony.

Hooper and the other members of the association were not necessary or proper parties to the action. Neither of them had any interest in the subject matter of the action. The action was not brought to redeem the vessel; nor did it involve the right of the defendant to foreclose the equity of redemption of the members of the association; nor the defendant's claim against them personally on the agreement to repay the money advanced by him; nor did it embrace in any manner the settlement of the accounts of the association with the defendant. The cause of action was entirely distinct from these subjects of controversy. It was founded upon an independent contract between Hooper and the defendant, entered into after the dissolution of the association, in which the association and its members had no interest; at least no such interest as made the members necessary parties to the action. Hooper had no interest in the subject of *Page 418 the action, as he had absolutely assigned to the plaintiff all his legal and equitable right and interest therein. If all the members of the association had been made parties, the defendant could not have set-off in this action against the separate and individual claim of Hooper his demand against them jointly.

If the defendant would have had a right to have sustained an action against Hooper for an account, as his agent while master of the vessel, for its earnings received by him, had Hooper continued the owner of his demand for compensation for his services as such master, or if the defendant could even now, since the assignment of that demand, sustain such an action, this right is no defence to this action. At common law, courts of equity and of law have concurrent jurisdiction in matters of account; and as the plaintiff had commenced this action as an ordinary civil action upon contract, by virtue of the common law jurisdiction of the court, the referee would have committed an error had he, under the circumstances of the case, dismissed the complaint or directed the cause to stand over until Hooper was made a party, to the end that he might be required to account to the defendant. (Willard Eq. Jur., 85; 2 John. Ch. R., 170; 3id., 360.) Courts of equity entertain jurisdiction of matters of account principally upon the ground of their right to compel a discovery upon the defendant's oath. BLACKSTONE regarded this as the sole ground of the jurisdiction of courts of equity in matters of account. (Story's Eq. Jur., §§ 449, 450, 451; 3 Bl.Com., 437; Willard's Eq. Jur., 88, 90.)

In this action, the making of Hooper a party was not necessary to enable the defendant to obtain a discovery from him upon his oath, as he was a competent witness for the defendant, and could have been examined by him as to all matters of account between them. The defendant, by obtaining a reference under the Code, with the privilege of examining both the plaintiff and Hooper, and of compelling the production of all books, papers and documents relating *Page 419 to the merits of the action or defence, in connection with the power given to referees and the mode of procedure before them, would have possessed all the advantages of an accounting in a court of equity. (Code, §§ 271, 388; 2 R.S., 199, § 21, 1sted.)

For these reasons it would have been improper in the referee to have dismissed the complaint for want of making Hooper a party, or to have suspended proceedings until he was made a party. Even under the practice of the Supreme Court and Court of Chancery, as it existed previous to the adoption of the new constitution, if the plaintiff had first commenced an action against the defendant in the Supreme Court, the Court of Chancery would have had no power, on the defendant's filing a bill in that court praying for an account, to have stayed the proceedings at law for the purpose of assuming jurisdiction itself of the action, upon the ground that it involved a matter of account; and for the reason that the Supreme Court possessed concurrent jurisdiction with the Court of Chancery of the action, and that its proceedings could not therefore be stayed by the latter court. (Story's Eq. Jur., § 442, and note 1.) But this is not a case of mutual accounts. On the part of the plaintiff there is but one item. It is a case, therefore, of accounts only on the side of the defendant.

In such a case equity never entertains jurisdiction, unless a discovery or a ne exeat is sought in aid of the account and is obtained. (2 John Ch. R., 169; Willard Eq. Jur., 90, 92;Story's Eq. Jur., §§ 455, 456, 458, and note 1, 459; 6Ves., 687, 136.) It is upon the principle of discovery alone that equity entertains jurisdiction in an action of a principal against his agent. (Willard Eq. Jur., 90, 91; Mackenzie v.Johnson, 4 Mad., 374; Story's Eq. Jur., § 462, and note 1, 464; Jer. Eq. Jur., 513, 515; 6 Ves., 136.)

In this case we have seen that there was no necessity of making Hooper a party in order to enable the defendant to obtain a discovery from him upon his oath. It is perfectly *Page 420 clear, therefore, that the referee decided correctly in denying the motion for a dismissal of the complaint for the want of proper parties, and also the motion to suspend proceedings until Hooper was made a party.

The action was properly brought by the plaintiff in his own name as assignee of Hooper. (Code, § 111.) But he took the assignment subject to all the equity of the defendant at the time of its execution against the assignor, and without prejudice to any set-off or other defence existing in favor of the defendant at the time or before notice of the assignment. (Code, § 112; 2R.S., 354, § 18, subd. 8.) Hooper having made an absolute assignment of all his legal and equitable right to his claim against the defendant, being for the balance due him for his services as master, after deducting the defendant's set-off, he had no interest in the subject matter of the action; and it would have been improper to have made him a party.

My conclusion is, that the judgment of the Supreme Court should be affirmed.

The appellant's counsel claims that the referee before whom this action was tried erred: First. In denying the motion of the defendant, now appellant, to strike out the evidence of the witness, Eben B. Hooper, on the ground that he was interested in the event of the action; Second. In holding that the associates who purchased the bark "Rising Sun," and pledged her to the defendant to secure the repayment of money advanced by him to them to enable them to purchase and fit her for a voyage to California, were not necessary parties to the action; and Third. In holding that Eben B. Hooper, the plaintiff's assignor, was not a necessary party to the action.

First. Hooper was a competent witness for the plaintiff. He had made to the plaintiff an absolute assignment of the cause of action, and if he remained interested in the event of the action, his interest was not immediate. He could *Page 421 derive no direct benefit therefrom. (Freeman v. Spalding, 2Kern., 373.)

Second. The action was brought to recover the amount unpaid for the services of Hooper as master of the bark "Rising Sun," after she was taken by the defendant, under the pledge to him, from the possession of the associates. The referee has found in substance that possession was taken of the bark, for the defendant as owner, on the 1st of October, 1849, when Hooper took command of her as master, at the request of the defendant, and continued in such command until December 16th, 1857, the vessel during that time being employed in navigation upon the western coast of the American continent, and principally between the ports of California and Panama, and it is not claimed that this finding was not supported by the evidence. The transactions between the defendant and the associates had no connection whatever with the employment of Hooper to take charge of the vessel after she was taken from their possession; and Hooper, while thus employed, was not acting either as one of the associates, or for or on account of the association. Hooper was accountable to the defendant, and to him only, for his conduct while he thus had charge of the vessel; and the defendant, and he only, was liable to Hooper for the services of the latter. Whether the value of the vessel, at the time the defendant took possession, was sufficient to satisfy his claim, does not appear. If it was not, the association was liable to him for the deficiency, and Hooper was liable therefore only in connection with and as one of the associates. The associates, as such, are entire strangers to the transaction constituting the subject matter of this action, and I can see no propriety in, much less any necessity for, making them parties thereto.

Third. Before the action was commenced, Hooper had parted with all his interest in the subject matter thereof by assignment to the plaintiff. The Code (§ 3) provides that every action must be prosecuted in the name of the real *Page 422 party in interest, with certain exceptions which do not apply to this case. The action could not, therefore, have been prosecuted in the name of Hooper, and it would have been improper to have joined him as a co-plaintiff, as he had no interest in obtaining the relief demanded. (Code, § 117.)

If, on the statement of the accounts of Hooper as master of the vessel and the defendant as owner, it had turned out that there was a balance due the defendant, then perhaps Hooper would have been a necessary party defendant, on the ground that a complete determination of the controversy could not be had without his being brought in. (Code, § 122.) But even in such case the controversy between the parties to the action could have been completely and fully determined without the presence of Hooper. The only controversy between the parties was whether the defendant was indebted to Hooper, and, if so, in what amount. The moment it was determined that no such indebtedness existed the controversy between them was at an end. The plaintiff was not in the least interested in the question whether Hooper was indebted to the defendant. That question could be settled with much more propriety in an action between Hooper and the defendant as hostile parties, than in one where they were co-defendants. But it is not necessary to pass upon the question whether, in case it had been found that Hooper was indebted to the defendant, the latter would have been a necessary party, as the referee has found that such was not the fact, and that being so, Hooper had no interest whatever in the controversy, and the defendant had no interest in his being made a party.

But it is claimed that the defendant was entitled to the benefit and had the legal right to demand an accounting from Hooper, and an exhibit of his books of account and vouchers relative to his receipts and disbursements while he had charge of the vessel, and that he could not be divested of such right by the assignment, and that such accounting could be had only in an action to which Hooper was a party; that *Page 423 if, prior to the Code, Hooper had brought an action at law to recover an alleged balance due him for his wages, a court of equity, on a bill filed for that purpose, would have enjoined the proceedings at law, and enforced a settlement of the account in that court; and that, under the Code, not only may an equitable defence to a legal claim be interposed, but affirmative relief of an equitable character be demanded.

The accounts between Hooper and the defendant were in effect stated and settled by the referee, and Hooper was a witness on the trial, and I see not why the same benefit could not be derived from his examination as a witness as from an accounting from him as a party. If the plaintiff had not introduced him as a witness, the defendant could not only have compelled his attendance, but also the production by him of all books and vouchers in his possession or under his control relating to the matters in controversy; and from the case as settled, which purports to set forth all the testimony and proceedings on the trial, it does not appear that any books or vouchers were withheld.

The Code not only allowed but required the action to be in the name of the assignee as plaintiff, and, as before shown, the assignor could not have been joined as co-plaintiff. Under our former system, superseded by the Code, the principal reason why, in cases of an account between parties, a bill in equity was preferable to an action of assumpsit at law, was, that in a court of equity a discovery could be had, which discovery in such cases was obtained by each party examining his adversary under oath before a master. The Code allows an examination of parties in all cases, and further provides (§ 388) that no action to obtain a discovery under oath, in aid of the prosecution or defence of another action, shall be allowed, nor an examination of a party in behalf of an adverse party be had, except as prescribed by the Code. The defendant has had all the benefit of an examination of Hooper which the Code would have allowed had be been a party; as in such case no discovery could *Page 424 have been obtained except by his examination as a witness on the trial of the action.

It is true that, by the provisions of the Code prior to the amendments adopted April 17, 1857, in case Hooper had been made a party defendant, he would have been an incompetent witness for the plaintiff, provided he was interested in the event of the action; but the plaintiff was under no obligation to make him a party for the purpose of rendering him an incompetent witness.

I think that Hooper was not a necessary party; and if I am right in that conclusion, it follows that the judgment should be affirmed.

COMSTOCK, J., did not sit in the case; all the other judges concurring,

Judgment affirmed.

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