11 Mo. 428 | Mo. | 1848
delivered the opinion of the Court.
The only question in this case is as to the right of Heylman to maintain this action. The action of trover must be brought by the party in whom the'legal right of property exists. This may be a general or spe» cial property. The question is not whether the bailee had such a special property in the note as would enable hirti to sustain an action for its conversion, but whether the action can be maintained in the name of any other person except his, in whose name a suit on the instrument itself must have been brought. The case of Day vs. Whitney, 1 Pick., 502, is in point to show that the delivery of the note-to Heylman, if it gave him any thing, gave only an equitable interest in it. In that case it was held that the assignee may maintain the action in the name of the assignor, the legal bill being in him, as by the laws of Massachusetts the assignment of a note not, negotiable does not enable the assigned to maintain an action in his own name, The same principle is deducible from 2nd Greenleaf, sec. 6S9, and the cases there cited. The case of Tilden vs. Brown, 14 Ver., 164, is determined on the authority. Kingman vs. Pierce, 17 Mass. Rep. But it is clear from the report of that case, the point was not involved, nor was it intended that it should be raised, and it is only inferred that the point was decided because it does not appear from the statement of facts that the plaintiff was the legal owner of the instrument on which the suit was brought. We all know that reporters are loose in the statement of those facts on which no question is raised.— It does not appear from the case but that the plaintiff was the legal owner of the note. Besides, the case first above cited coming on in the same court sometime afterwards, no reference is made to that of Kingman vs. Pierce, and the point expressly ruled in that case is contrary to the reference deduced from the case last mentioned. No case has been found in which a suit has been brought in the name of a mere bailee of a chose in action for a special purpose where the beneficial ownership was in a third person. The doctrine with regard to the bailees of goods and chattels does not apply. There is obviously a distinction between goods,
There is po pretence for saying that by the subsequent instructions asked by the defendant, he waived the point raised by the first instruction. That instruction, it is conceived was only designed to raise the question determined in this case, and did not preclude the party from making other points necessary for his defence without abandoning it.
the judgment will be reversed.
