1 Port. 201 | Ala. | 1834
This was an action of debt, brought by Owen as bearer, against Bryant as maker, of a promissory note; payable to A. Robinett, or bearer. The defendant below, pleaded that Owen, the plaintiff, was not the legal holder of the note ; also nil debet, payment, and set off — on which the plaintiff joined issue ; and on trial in the Circuit Court, obtained a verdict for the amount of the note.
The questions presented for revision’, arise out of exceptions to the opinion of the court, taken on the trial.
1. That the court charged the jury, that before the defendant could hvail himself of any defence, which existed against the note, in the hands of the original payee, it was necessary for the defendant, first, to prove that the note was transferred by the original payee, after it became duo — notwithstanding
' 2. Tlie defendant requested tlie court to instruct the jury" that if they .believed tlie plaintiff received the note sued on, not in the usual course of mercantile transactions, but as an attorney at law, for the purpose of collection, then he is not entitled to recover, which was refused.
The charge given as above stated, and the refusal of the court to give the other instructions, as required, are the causes assigned for error.
It is necessary to remark, that this case, having been previously before this court, at the instance of the same party, when the judgment was reversed, and the cause remanded; principles were then presented and discussed, and by the court decided, which, in some degree, limit our present inquiries ; and, that according to the practice of this and other courts, when principles have once been determined here, they are ever afterwards to be regarded as the law of the same case, if subsequently brought up for further revision. We then recognised the principle, that possession of a note, bill, &c. constitutes prima facie evidence of right; but that when it became material for the purpose of defence, that the plaintiff’s interest or capacity in the suit should be known (and it may be rendered so in every case by the issue) then to permit the defendant to make the proof, does not infringe any rule of law, and may promote justice in many cases : also, .that the plaintiff’s right to recover, in such cases, depends on the truth of the fact, whether or not he be the owner of the instrument; and notwithstanding the legal presumption of ownership, it is subject to be rebutted, and if successfully done, the plaintiff' must fail in his action; that to determine the issue of payment or set. off, it might be indispensable to know, in whom the interest of the note resides ; and that the act of ownership having been directly in issue, and evidence offered by the defendant to rebut what was only a legal presumption, he was entitled to the benefit of the proof. It is
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It is on this general principle, that the counsel for the defendant in error, is understood to contend, and the Circuit Court to have decided, not only that the agent could maintain the suit in his own name alone, without any interest in the note, but also, that before the defendant could avail himself of any defence which existed against the note in the hands of the payee, it was necessary he should first prove that the note was transferred by the payee after it became due. Yet the same authority
This is conceived to have been an unauthorised restriction of the right.. By the common law it was absolute and general, when the plaintiff had. not acquired his right in the usual course of trade, for a valuable consideration ; and by the statute of 1812, concerning the assignment of bonds, notes, &c. the defendant was entitled to the benefit of any payment, set off, or discount, which had arisen against the note, previous to notice to him of a legal transfer thereof, and this equally, ■whether the transfer was before or after the note became due. If it be contended, that the plaintiff below, sued merely as’ agent or attorney for his principal, who was a bona fide , holder, for a valuable consideration, my reply is, that no such > person is shown in the proceedings, so as to be brought within the cognizance of the court, and therefore, cannot receive Its prelection,
It is also worthy of notice, that the instrument sued on in the case last referred to/was rather in the nature of a bank note, than an ordinary individual promissory note. No person was named in it as payee. It was a check on a bank, made payable to No. 25, or bearer, which contemplated no other indicia of ownership than that of possession. The authorities referred to in support of that decision, are cases, in which the right to sue in the name of agents or trustees, was given by indorsements either in full or in blank; and where, ' in such cases, it was held that the defendant should be permitted to avail himself of a defence against the original party. The court there inclined to admit, that in such case the defendant could not plead a set off against the cestui que trust; that their statute might apply alone to the parties of record. However, we might be disposed to consider that question under our statute, the unavoidable consequence of sustaining the right of the plaintiff to sue in his own name, as the immediate assignee of the payee, without any interest, would be to
In this case, the inference to be drawn from the declaration, is, that Owen was the immediate assignee, by delivery, of Robinett, the payee of the note. Then,, when it appears that the plaintiff has no interest in the suit, it follows that he has no claim to the attitude of a bona fide holder for & valuable consideration, or of one who has received it in the usual course of business. The authority mainly relied upon in the case referred to, (of Mauran vs. Lamb) was the case of Payne vs Edin,
The case ef Ballard vs. Bellf,
That was an action of debt, brought on a bonk noce payable to W. Pitt, or beam', which name was admitted to be a mere
It is quite clear that the check did not admit of an indorsement by the payee, or of any ordinary assignment. The note under consideration did; being payable to Robinett. He was competent to assign it by indorsement or delivery, as was also any subsequent holder. And though bare possession of it was prima facia evidence of ownership, it was nothing more — and the proof has established the contrary. If it be admitted that any one in whom the legal title to a negotiable or assignable security has vested, without any individual interest, may maintain a suit upon it in his own name ; it does not follow, that an agent or attorney, to whom the paper has been delivered for a different purpose, has the same right. If by law, the agent is not', under the circumstances,. entitled to sue in his own name, the consent merely, of the principal, cannot confer the privilege. Numerous authorities authorities cited by the plaintiff in error', show the true 'principle to be, that the existence of an ordinary agency, or such as arises from the relation of client and attorney at law, does not authorise the attorney to sue in his own name; and - that the bare consent of the principal appearing in evidence on the trial, does not remove the objection.
In the case of Givin vs. Cantim,
In the case of Piggold vs. Thompson,
In reference to these two latter cases, and as a further test of the principle, let us suppose, that the attorney or treasurer had died pending the actions, what would have been the consequence ! Could their representatives have prosecuted the actions ? Surely not — if they had no beneficial interest in • the suits, and could have been removed by the principals at pleasure, as was obviously the case. Then apply the same test to the case under consideration, and the same objections arise. They are all attributable to the want of legal title to the demand in the plaintiff; and to which I have alluded as an insuparable objection to the recovery.
It is very clear that the same difficulty does not exist where actions are brought in the name of trustees duly appointed, . or of indorsers of assignable securities; because there the legal title is vested in the plaintiff, whether he have any individual interest or not. Such is not the case with a mere, agent or attorney to whom the paper has been delivered for collection, without any actual assignment of the right.
The bare possession of an assignable paper, with the consent of the owner to sue in the name of the agent, does not impair the rights of the principal; he is still the legal holder, and no other can sue in his stead.
The case was entirely different in McClausland vs, Drake, where there was an actual indorsement, vesting the legal
The case of Gilmore vs. Pope,
The case of Thatcher vs. Winslow,
The decision of the court, in the case of Johnson, use of Stone vs. English,
There are various other cases condemnatory of this right— (See Vischin vs. Yates
If the rules of law, correctly expounded, will not reach the justice of this particular case, I can only regret it. Our province is to declare the law as we find it. In its application to this case, we hold it to be — that a mere agency, such as is created by the relation of client and attorney, does not authorise the latter to sue in his own name alone, even on a note payable to a particular person or bearer, and that the consent of the principal, appearing in evidence, does not remove the objection: also,' that if the plaintiff’s right to sue in his own name could be sustained on the requisite authority, still the defendant would be entitled to the benefit of any
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3 Kent, 51.
3 Kent, 52.
3 Came's R. 213.
3Bos. & Pul. 147.
5Mason, 58.
11 Johns. 25