Devers ex rel. Devers v. Becknell

Pettibone, J., delivered the opinion of the Court. This was an action of detinue for some negro slaves, tried in the Howard Circuit Court; plea, non detinet; verdict for defendant. The plaintiff, to support his action, offered in evidence a power of attorney from his father, William Devers, who was the owner of the slaves, authorising him to sue for them. This power of attorney was objected to by the defendant, on the ground, that the execution of it was not sufficiently proved, and was excluded from being given in evidence by the Court. To the opinion of the Court in excluding this testimony, the plaintiff excepted. It is not necessary to detail the evidence which was given of the execution of the power of attorney, because, admitting the Court to have erred in excluding that instrument, yet the plaintiff has shown, that if he had had the benefit of that evidence, he could not have maintained this action. The record shows, that the plaintiff was only the attorney of William Devers, that the legal interest in the slaves was in William Devers, and not himself. An attorney never can bring suit in his own name when he acts merely as agent or attorney, not having any beneficial interest in the suit: Bogart v. Debussy, 6 Johns. 94; Gunn v. Cantine, 10 Johns. 387. The suit must be in the name of the person having the legal interest: 1 Chitty Pl. 3. The judgment in the Court below must be affirmed, with costs.