Ewing v. Medlock

5 Port. 82 | Ala. | 1837

HOPKINS, C. J.

The promise upon which the plaintiff in error relied, in the Court below, to recover of the defendant, was in writing, and for the payment of money. It was not payable to any person by name, but to the treasurer of the Tus-kaloosa Jockey Club. The suit wás brought by the plaintiff in error, as treasurer of that club. The club was not incorporated, out is a private «f-roei-ation of individuals. It was admitted in the Cb-mt below, that the plaintiff in error wm; ¡he treasurer of the' club. The Court below deNrauned that this evidence did not entitle the plaintiff to recover, and upon the motion of the defendant, excluded it from the jury.

To maintain that the plaintiff has a right to the action, would be to put him upon the same ground he would occupy, if the association had been incorporated, and made capable by its charter, of suing in the name of whoever might be the treasurer of the club, upon instruments made payable to ■ the treasurer. Such a capacity to maintain an action, can be conferred by a charter only. If the money had been payable to the plaintiff by his individual name,-the right to the action would belong to him, and the description of him as treasurer of the club, would not affect the right. The only effect the description could have, would be to make him a trustee for the members of the association.

If the treasurer of the club could maintain the action, the right to the action might belong to different individuals at different times. The club may remove from office, a person who was the treasurer when such a promise was made, and appoint a successor. In such a case, the right which once belonged to one person as treasurer, would be exercised by another, without an assignment from him who was first entitled; for an assignment would be without effect, as the promise is made to no one individually.

In the case of Piggott vs Thompson,^* commissioners had been appointed by three, acts of three to drama certain fenlands, witn power to erect tollgales, and take tolls in the fen-lands. The tolls wove vested in the commissioners, and their suc-coisiors. They were authorised by the acts, to ap-pmnt a treasurer. They let the tolls for three years to Thompson, at one hundred and forty-five pounds per annum, and he, by his promise in writing, undertook to pay the money to their treasurer, not by his individual name, but as treasurer of the commissioners. The Court decided that the person who was treasurer, when the promise was made, could maintain no action on it: — that the right to an action belonged to the commissioners.

We are of opinion, that the Court below did not err in excluding the evidence from the jury.

The judgment is affirmed.

COLLIER, J. not sitting.

* 3 Bos.& R* 146.