McConnel v. Thomas

| Ill. | Jun 15, 1840

Wilson, Chief Justice,

delivered the opinion of the Court:

This is a proceeding by petition and summons, instituted by William Thomas, the plaintiff below, against Murray McConnel, upon a note made by McConnel to William Thomas, school commissioner and agent for the inhabitants of Morgan county, for the use of the inhabitants of said county.

The note bears interest at the rate of thirty per cent, per annum, and judgment was rendered by the Court below in favor of the plaintiff, for the principal and interest of the note, agreeably to its terms. From this decision the defendant below has appealed ; and from the proceedings had in the case, two questions arise for the decision of this Court: first, whether the action was properly brought in the name of Thomas, the payee of the note, as was held by the Court below; and secondly, whether judgment for the interest due, was correctly rendered.

The first point in this case must be regarded as settled in this Court, by the case of McHenry v. Ridgely, ⁽¹⁾ decided at the present term. That case is not distinguishable in principle from this. The action there was brought in the individual name and character of Nicholas H. Ridgley, upon a note assigned to Nicholas H. Ridgley, Cashier, or order, and the same defence was set up in that case that is in the present one, that is, that the plaintiff had no property or interest in the note,—that he was a mere agent, &c. &c. But the Court decided the action to be properly brought in the name of the assignee ; and this decision is fully sustained by the authorities referred to. Kent lays down the law as fully settled, that “ If a bill be made payable to A. for the use of B., the legal interest is in A., and he must endorse it; ” ⁽¹⁾ and for the same reason A. must, in such case, bring the action. It has also been decided that the Mayor and commonality cannot sue on a bond made to the Mayor himself, though he was also styled “ Mayor.” ⁽²⁾

If the payee of this note cannot sue because of the want of interest in it, it may well be doubted whether any one can, for the same objection applies to the county ; and the inhabitants of the township, not being a corporation, cannot sue in that character; and no one of them can enforce the common rights of all.

Upon the second point, it is insisted by the defendant, that inasmuch as the interest is reserved by a special agreement, it should have been specially declared for. In answer to this, it is sufficient to observe, that the statute gives the form of the petition, and that of the plaintiff is in strict conformity with it. Interest, however, is regarded as an incident to the debt; and is given in the form of damages, without being claimed by a distinct or special declaration or count. I can perceive no reason why more technicality in pleading, should be observed to recover a rate of interest specified by the parties, than is required when it is fixed by the law.

The judgment is affirmed.

Judgment affirmed.

Mote. See McHenry v. Ridgely, Ante 309 ; Campbell v. Humphries, Post.

(1) Ante 309.

(1) 3 Kent Com. 89.

(2) 1 Tuck. Com. 155 ; 2 Taunt. 374, 337 ; Doug. 633, 634 ; 3 Johns. C. 264 ; 21 Johns. 52.