Opinion of the Court-Beatty, J.

one of the creditors of plaintiff ever at any time were parties to or were bound by the assignment. It was only an arrangement between plaintiff and the assignees, and the funds to pay Peck's debts with must come out of the property assigned. The assignees did not covenant to pay out of their own funds. Hence the plaintiff was the real party in interest to see that the Dodds account was collected, and in this light plaintiff and the assignees regarded the Dodds account. (Wiggin v. McDonald, 18 Cal. 126.)

V. Glissan and Bishop are forever debarred from bringing suit on the Dodds account, and it was not even urged that they could ever do so. (Mitchell v. Reed, 9 Cal. 204; Plumb v. Cattaraugus Co. Ins. Co., 18 N. Y. 394; Dezell v. Odell, 3 Hill, 215; Welland Canal Co. v. Hathaway, 8 Wend. 482.)

By the Court, BEATTY, J.:

The defendants in this case set up in their answer and on the trial proved that the account sued on had been assigned by the plaintiff to Bishop and Glissan before the commencement of the action, and themselves notified. The assignment referred to is in writing, and recites that it is made in consideration of the assumption by the assignees of certain debts of the assignor. It provides that the assignees are to take possession and dispose of the property enumerated, collect the accounts, and after paying themselves the amount of the debts assumed and their necessary expenses in managing the business, to return any overplus to the plaintiff. In the meantime the sale and assignment are to be absolute. There can be no doubt that so long as this assignment remained in force the right to sue on all accounts embraced by it was vested in the assignees exclusively as the real parties in interest. The plaintiff, not denying the assignment nor disputing its legal operation while in force, offered to prove in rebuttal a reassignment to him of the particular account upon which this action was brought. The testimony offered for that purpose was objected to by defendants and was admitted subject to their right to move to strike it

Points decided.

out, which they did upon the ground that it did not prove, or tend to prove, a retransfer of the account. The motion was overruled, the testimony submitted to the jury, and a verdict rendered against the defendants, upon which plaintiff had judgment.

Defendants appeal from the judgment, assigning error of the court in refusing to allow their motion to strike out as one of the grounds of appeal.

We think the ruling of the court was erroneous. Giving the utmost possible effect to all the testimony offered by the plaintiff on this point, and conceding the validity of a reassignment by parol, there is nothing to show such reassignment or any intention of the assignees to make one. It is true, they told plaintiff to collect the account in his own name, and to sue on it and to attach; but they coupled these directions with an express refusal to reassign. They seem to have thought that they could give plaintiff authority to sue, while they retained the absolute property in the account, and with it, of course, the right to sue in their own names. But, clearly, the defendants could not be liable to assignor and assignees at the same time, and as Bishop and Glissan had an undoubted right to sue when this action was commenced, the plaintiff must necessarily fail. Judgment reversed.

[No. 706.]

JAMES PAYNE SMITH, RESPONDENT, v. HENRY LEE,

APPELLANT.

ALLEGATIONS OF COMPLAINT NOT DENIED IN THE ANSWER.-Where the complaint alleges that defendant agreed to pay plaintiff four dollars per day for his services, and the answer does not deny that allegation, no issue is presented by the pleadings as to the value of plaintiff's services. INSTRUCTIONS WHERE NO INJURY Occurs.-Where it clearly appears that appellant was not injured by the refusal of the court to give certain instructions asked by him, it is unnecessary for this court to decide whether said instructions are correct or not.

RULES OF COURT-HOW ENFORCED.-It is doubtful if the district court could enforce a rule of court that was not formally recorded in the minutes and published for thirty days, as by law required. This question referred to but not decided.

Argument for Respondent.

APPEAL from the District Court of the Sixth Judicial

District, Eureka County.

The facts are stated in the opinion.

David E. Bailey, for Appellant.

The court erred in refusing to give the instructions

asked for by appellant.

Both of the instructions state the law as applicable to this case. There was a conflict in the evidence, and respondent had a right to ask the court that the plaintiff must establish any fact by a preponderance of evidence, and that if five hundred and eleven dollars was all that was due, then the jury must find for the defendant. The only reason assigned for the refusal to give the instructions was, that the same had not been offered before the commencement of the opening argument of the plaintiff's counsel. It will not be contended that there was any rule of court on this subject, but simply that it had been, and was, the practice of the court to require certain things to be done. Courts have power to adopt rules not in conflict with law, but such rules must be made in accordance with the statute. (1 Compiled Laws, Sec. 930.) Practice or custom cannot make the rule; but it must be adopted and published in conformity with the provisions of the statute.

Thomas Wren, for Respondent.

I. The court properly refused to give the instructions asked. Instruction No. 1 is not properly qualified. It, in effect, assumes that the defendant is required, to entitle him to recover, to establish all matters of fact alleged by himthose admitted by the answer as well as those denied-and in this respect calculated to mislead the jury. It is too general. The instructions were not handed to the judge in time. (Waldie v. Doll, 29 Cal. 561; People v. Keefer, 18 Cal. 636.)

II. Defendant's instruction No. 2 was properly refused for the reason that no facts were proven to authorize it. (Thompson v. Lee, 8 Cal. 275; People v. Hurley, 8 Cal. 390; Tompkins v. Mahoney, 32 Cal. 321.)

VOL. X.--14

Opinion of the Court-Beatty, J.

By the Court, BEATTY, J.:

In this case the defendant appeals from a judgment rendered against him for three hundred and fifty-two dollars and fifteen cents, and from the order overruling his motion for a new trial. The complaint is verified and the allegations are, that the plaintiff worked for defendant two hundred and forty-three days, at defendant's request, for which he agreed to pay him four dollars per day; that his services were reasonably worth nine hundred and seventytwo dollars, which defendant promised to pay in gold coin; and that no part of the same has been paid, except one hundred and three dollars and eighty-five cents. The answer admits the performance of two hundred and thirtyone days' labor. It does not deny the promise to pay four dollars per day, but alleges that the reasonable value of the services did not exceed six hundred and eighty-seven dollars. It pleads payment, and a counter-claim, for which defendant demands judgment. Upon the issues raised by these pleadings the parties went to trial. What were the issues? The defendant, by failing to deny, admitted that he had promised to pay plaintiff four dollars per day for his services, and his denial of their alleged value became immaterial. The only allegation of the complaint, therefore, which required proof to support it, was that relating to the number of days that plaintiff worked-he claiming two hundred and forty-three, and defendant admitting two hundred and thirty-one. The plea of payment, and the counterclaim asserted in the answer, of course raised issues which the defendant was bound to maintain by affirmative proof.

On the trial the plaintiff testified to having worked two hundred and forty-three days; that defendant promised to pay four dollars per day, and that he had paid him five hundred and eleven dollars, and rested his case. The defendant testified: "I am defendant in this action. I employed the plaintiff to work for me. I agreed to pay him ninety dollars per month and board him." The only other testimony offered by the defendant was as to the value of the

Opinion of the Court--Beatty, J.

plaintiff's services, and this testimony was all either excluded or stricken out by the court upon the ground that it was immaterial. Two of the errors assigned relate to the exclusion and striking out of this testimony. We think the rulings of the district court upon this matter were correct. If the defendant promised to pay four dollars per day, as he admits he did, by failing to deny the allegation. to that effect, he was bound to pay at that rate although the services may have been worth less. The only other error complained of is the refusal by the court to allow the following instructions asked by the defendant: "1st. The jury are instructed that the plaintiff, in order to establish any matter of fact alleged by him, must prove the same by preponderance of testimony. 2d. If the jury believe from the evidence that when the defendant paid the plaintiff the sum of five hundred and eleven dollars, which is admitted, that sum was all that was due from the defendant to the plaintiff, they will find a verdict for the defendant." The court refused to give these instructions without deciding upon their correctness, upon the ground that they were not requested before the conclusion of plaintiff's opening argument, and the practice of the court required them to be submitted to the court and opposing counsel before the argument began in order to entitle them to be considered. It is doubtful if the action of the court could be sustained upon the ground specified. It appears that the practice referred to is not established by any rule formally recorded in the minutes of the court and published as other rules of that court have been. And courts are not allowed to enforce rules of their own making until thirty days after their adoption and publication. (1 Comp. L., Sec. 930.) What is requisite to the adoption and publication of a rule of court, and whether a long-continued practice is alone sufficient for that purpose, are, however, questions which, in this case, it is unnecessary to decide. And whether or not the instructions refused were correct in themselves, or liable to the criticism of respondent, and whether they were called for, in view of the testimony, are also questions which it is unnecessary to