JOHN W. GRIFFIN, Respondent, v. ALSOP & CO., Appellants, 4 Cal. 406

•Mr. Justice Heydeneeldt delivered the opinion of the Court. Mr. Ch. J. Murray concurred. The defendants’ counsel requested the Court to instruct the jury, “That no demand by Martin Shultz and refusal by the defendants, made after the assignment by Shultz to the plaintiff, would enable the plaintiff to maintain his suit, unless made in the name, and by the authority, of Griffin, and accompanied by notice and evidence of such authority.” In refusing this instruction, the Court erred.

After the assignment of Martin Shultz to the plaintiff, the latter was alone entitled to demand and receive possession of the goods, upon the payment to the defendants of their advances and commissions. The only demand shown by the evidence, was made by Shultz, when he clearly had no right whatever in the subject matter.

This question materially affects the liability of the defendants, because without a demand and tender of their advances, etc., it was their duty, as consignees, under the stipulations of their contract, to sell the sugar and account for the proceeds, and they would not therefore be liable in this form of action. The Court erred also in admitting the testimony of Shultz. The recovery was that of his own selected assignee, to' be applied to the payment of his debts.

As to whether this makes it a suit prosecuted for his immediate benefit, within the meaning of the statute, there has been much close reasoning on both sides, and I am willing' to concede that if it were a new question, my mind would not be free from doubt. But in the case of Jones v. Post, at the last January term of this Court, ante 14, we decided under similar circumstances that the witness was incompetent.

The statute has, therefore, received already a judicial construction; and as a general rule in relation to new statutes operating a change in evidence or practice, it is safest to adhere to the doctrine of stare decisis. For these errors, the judgment is reversed and the cause remanded.