Lacoste v. De Armas

Porter, J., delivered the opinion of the court. This is an action by the endorsee of a promissory note against the maker. The defence is, that the note was given without consideration, and that the plaintiff is the agent of the payee. The court below .gave judgment against the defendant, and he appealed. There are two bills of exceptions on record, to the opinion of the court, refusing the defendant the right to make this defence, but as he was finally permitted to do so by a supplemental answer, and the cause comes up on its merits, we find it unnecessary to notice the opinions of the court to which these exceptions were taken. The answer of the plaintiff to the interrogatories, admits that he is only agent for the payee, or rather for those persons for whose use the note was given to the payee ; and it is contended on the authority of the 15th article of the Code of Practice, that the action cannot be maintained in the form in which it is brought. That article is in these words : “ An action can only be brought by one, having a real and actual interest which he pursues, but as soon as that interest arise he may bring his action.” A party in interest may convey his legal title in a note to a third person, and by such conveyance . give that person a right to sue in his own panie. In such a case, the defendant may offer every defence to the suit, by the agent, which he could present againstthe action of the principal. The agent can only be considered as the nominal plaintiff. It appears to us, that there is nothing in the enactment which prevents the party in interest, from conveying his legal title to a third person, and by such conveyance, giving that person a right to sue in his own name. No consequence results from it affecting the right of the defendant, for he can offer every defence to the suit of the agent he could present against the action of the principal. The agent can only be considered as the nominal plaintiff. On the merits. The proof fails to sustain the allegation of a want of consideration; and it is, therefore, ordered, adjudged, and decreed, that the judgment of the District Court be affirmed with costs.