Marsh

The statute (Code of Civil Procedure, sec. 1493) must be construed to intend that if an opportunity was afforded one proper person to present the claim during the period of time allowed by law, that the claim should then be presented, or be barred as in any other case. Darling, in whom the legal title and possession of the note was vested during that time, had such opportunity, for he was here. He was a proper person to have presented the claim, because he was a proper party to have enforced it. (Price v. Dunlap, 5 Cal. 485 ; Gradwohl v. Harris, 29 Cal. 154 ; Wetmore v. San Francisco, 44 Cal. 300 .) Indeed, Darling was the real party in interest, and the money was due and payable to him alone, whatever might have been the secret equities between him and the plaintiff. He was the only proper party to present or enforce the claim. (2 Parsons on Notes and Bills, (Ed. of 1865) 438-9 and 449-50; Zachary v. Gregory, 32 Tex. 452 ; Richards v. Better, 53 Ill. 467 .)

This view is strengthened when we remember that the original note must be exhibited, if demanded, and the holder must bring suit upon it. (Code of Civil Procedure, secs. 1497-8.) Darling only could have complied with the…