White v. Stanley

McIlvaine, J. The court of common pleas did not err in overruling the motion of defendants to discharge the attachment. Section 192 of the code authorizes the making of an order of attachment upon the “ affidavit of the plaintiff, his agent or attorney,” showing certain facts therein enumerated. The sufficiency of an affidavit for an order of attachment made by the plaintiff’s agent or attorney is determined by the same tests as one made by the party himself. There is no such limitation upon the power of an agent or attorney to make an affidavit for an attachment as-is prescribed by section 93 of the code. This section was-intended to apply only to affidavits in verification of pleadings. This is rendered clear from the context of the section as well as by its terms. Was the verdict contrary to the law and the evidence ? This general question involves two others: 1. Did the-plaintiff have such interest in the cause of action as to authorize a judgment in his favor? 2. Were the makers of the note entitled to the same defenses as if the action had-been brought by the payees, Sperry, Hale & Co. ? 1. It is not disputed that the note sued on,underthelst section of the act of February, 1820, entitled “ an act making-certain instruments of writing negotiable,” was negotiable by indorsement thereon so as absolutely to transfer and vest the-property thereof in the indorsee; nor is it disputed that,, under the 2d section of said act, the plaintiff, as indorsee,, was expressly authorized to maintain an action thereon in his own name. The claim made by plaintiff in error is,.that by section 25 of the code of civil procedure, passed-in 1853, the plaintiff, under the facts of this case, could not maintain an action on the note. This section provides that,, “ Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section twenty-seven.” Section 27 provides that “ an executor, administrator, guardián, trustee of an express trust, a person, [428] with whom or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted.” The point is, that the International Bank was the real party in interest and that the plaintiff below was not within any of the exceptions named in section 27 of the code. If the rule of the code, when applied to the facts of this •case, is in conflict with the provisions of the 2d section of the negotiable instrument act, the former must prevail; but we think there is no such conflict, because, not merely that the indorsee of a negotiable instrument is expressly .authorized by the latter act to sue in his own name, but .also that the rule of the code, without that special exception in section 27, does not forbid the action in plaintiff’s name. Whatever the rule may be in a case where an indorsement of a negotiable instrument is made for the mere purpose of collection, it is quite clear that this is a very differ■ent case. Here the payees, who were the absolute owners of the note, transferred to the plaintiff, by the indorsement .and delivery,all their title and interest, legal and equitable. So that the property in the note was absolute in the indorsee, notwithstanding he might in equity have been accountable to the bank for its proceeds when collected. But if it be conceded that an equitable interest in the note accrued to the bank by the indorsement and delivery to Stanley, then such interest was assigned by the bank to the plaintiff before suit was brought. So that if the plaintiff was not the absolute owuer of the note, he must have held it under some agreement or understanding with the bank as ■trustee of an express trust, for the benefit of the bank. In which case he came within another exception to the rule of section 25 of the code as contained in section 27. The fact that the bank assigned and transferred its equitable interest in the note, if it had any, to the plaintiff’ with■out consideration and for the purpose of enabling him to prosecute the suit in his own name, does not in the slightest [429] degree, affect the question now under consideration, to wit, the right of the plaintiff to prosecute the suit in his own name.. 2. Having determined that the action below was properly prosecuted in the name of the indorsee, the next question is of easy solution. The plaintiff' acquired the note in controversy before maturity, in good faith and for a valuable consideration. There is no pretense that he had notice at that time of any infirmity in the note as between the original parties. And conceding that tbe plaintiff' took the note in trust for the benefit of the bank, and that therefore any defense which the-makers had against the payees, of which the bank had notice, would be available against it in the hands of the-plaintiff, tbe case is still against tbe plaintiffs in error. It. is affirmatively shown that the bank had no knowledge of the alleged defenses against the note. We find no error in the record. Motion ooerruled.