Crook v. Douglass

A. J. WALEEB, C. J. Section 2129 of the Code is in the following words : “Every action, founded upon a promissory note, bond, or other contract, express or implied, for the payment of money, must be prosecuted in the name of the party really interested, whether he have the legal title or not; subject to any defense the payor, obligor or debtor may have had against the payee, obligee, or creditor, previous to notice of the assignment ortrans [695] fer; but this clause does not apply to bills of exchange, or instruments payable in bank, or at a private banking-house. In all other cases, the suit must be instituted, in the name of the person having the legal title.” When this section says, “ but this clause does not apply to bills of exchange,” &c., we do not understand it to mean that all the preceding part of the section is inapplicable to bills of exchange, &c.; but that the next preceding member of the sentence, “subject to any defense,” &c., has no application to bills of exchange and instruments payable in bank, or at a private banking-house. The member of the sentence, commencing with the words “ subject to any defense,” may, without any perversion of the word, be considered “a clause;” and that is the “clause” which the grammatical construction points out, as referred to by the words, “this clause,” in the following member of the sentence. If it had been designed to exempt bills of exchange and the other commercial instruments from the operation of the preceding part of the section, they would have been appropriately mentioned by way of exception to the general description of the contracts embraced, or to the entire section. We are more firmly persuaded that the construction we have given to section 2129 is correct, because we can find no sufficient reason for the exception of bills of exchange aud the other commercial instruments named from the rule as to parties established by that section; and we find the exception of such instruments from the rule therein established, as to defenses against the holder of them, perfectly consistent with the policy which has ever characterized the legislation of this State. Having noticed the only point made in the appellant’s brief, and finding no error in any particular in the record, we do not deem it necessary to protract this opinion farther. Judgment affirmed.