Oakey v. Bend

The Vice-Chancellor : If the complainants had brought an action at law in their own names, as endorsees of the bill of exchange, as they might have done, having the legal title through the endorsements on the bill to sue upon it, this court might have sustained a bill of discovery to aid them in prosecuting it, without enquiring into the fact whether the complainants had any interest in the subject matter of the suit or were mere agents for others ; courts of law permitting suits to be brought on negociable paper in the name of any person for the real owner, without making that inquiry. A different rule prevails in a court of chancery, where relief as well as discovery or relief alone is the object of the suit; for, in all such cases, the bill must be filed and prosecuted by and in the name of the real party in interest; Field v. Maghee, 5 Paige’s C. R. 539 ; Rogers v. The Traders Insurance Company, 6 Ib. 583 ; Sedgwick v. Cleaveland, 7 Ib. 287. A person, who is a mere agent to sue for and collect money under a power of attorney, cannot be a party to a bill for an account in his own name, nor be joined as a co-complainant with his principal: The King of Spain v. Machado, 4 Russ. 225, 240, recognized in Clarkson v. Depeyster, 3 Paige’s C. R. 337 as good ground of demurrer. As a general rule, if an agent institutes a suit under an authority from his principal, he [484] must do so in the name of his principal: Leigh v. Thomas, 2 Ves. 313 ; and see Calvert on Parties, 229, 232, for the authorities on the subject. In the present case, the bill alleges that the complainants are mere agents for the Bank of Leeds in England, under a power of attorney transmitted to them by one of its officers, duly authorizing the collection of the bill of exchange which the bank discounted and to whom it belongs. This being so, the bill should be filed in the name of the bank, if they have a corporate capacity to sue under the act of parliament mentioned in the bill or if they have it not, then in the names of the individuals composing the bank ; and it is no excuse that the names of all have not been transmitted or furnished to the agents here or that they are very numerous and constantly fluctuating. To avoid the inconvenience of numerous complainants and changes of interest, this court may allow a bill to be exhibited in the names of a few, in behalf of all interested in the bank: Calvert, 40, 41 ; Story’s Eq. Pl. 97, 114 to 117. The objection, therefore, that the bill is in the names of agents, appears to me to be fatal to it. I am also of opinion, from the best consideration I have been able to give to this case, that if the complainants have a right to sue for and collect the money on the bill of exchange in question in their own names, that they have not made out such a case as entitles them to relief in this court or to a discovery of the facts alleged with a view to relief here. The remedy is at law in an action on the bill of exchange ; and when such an action is brought, a discovery may be had here to aid that suit. According to the facts as now stated, it will be safe to bring the action against the defendant Bend as the principal; and should it fail, it will then be in time to bring an action against the other defendant, Callet; and the uncertainty of which party to sue in the first instance seems to me not a sufficient ground for transferring the entire jurisdiction to this court. The plaintiffs must be left to pursue their remedy at law, and to take their chance of success like any other plaintiff. Demurrer allowed and bill dismissed, with costs.