Pollard v. Thomas

Cooper; J., delivered the opinion of the court. The right of the appellee to the proceeds of the mare is purely an equitable one, and gives him no standing, suing in his own name, in a court of law. The action should have been brought by the trustee, or, if brought by the appellee, he should have sued in the name of the trustee for his use. Lowenburg v. Jones, 56 Miss. 688. In Elson v. Barrier, 56 Miss. 394, the objection that the suit was in the name of the cestui que trust was not made, and the defense, being technical, was not raised by the court. While it is true that one having the right to maintain an action of tort may in some cases waive the tort and sue in assumpsit, it does not follow that one may waive the tort done to another and thus acquire the right to sue. In Ashby v. Carr, 40 Miss. 64, it was decided that the holder of an open account transferred by delivery only might plead it as a set-off in an action brought against him by the debtor in the account, and this decision was followed in. Hunt v. Shackleford, 55 Miss. 94. But this right is defensive only and cannot be made the foundation of a suit. Judgment reversed.