
    Burton vs. Dees.
    If a promissory note be delivered by the payee, or by another person as his agent, in his presence and by his assent or approbation, without endorsement, the holder has a right to sue in the name of the payee, and the payee cannot control the same in any way.
    The right of the plaintiff to sue in a ease originating before a justice of the peace, may be contested upon the trial in court if there be an appeal, or before the justice in the first instance.
    In a suit by the payee upon a note alleged to be lost, the defendant has a right to show that the note was passed by the payee, or another with his consent, by delivery without assignment.
    A verdict for the defendant in a suit by the payee of a note in his own right, will form no bar to a suit brought in the name of the payee for the use of the true owner.
    This case came up from the circuit court of Henderson county, on appeal in the nature of a writ of error. The suit was instituted by the defendant in error, Dees, before a justice of the peace-, on a warrant against the plaintiff in error, to which was the affidavit of the defendant in error, stating that Burton, the plaintiff in error, had executed his note to him, Dees, for seventy dollars, and that the said note was lost, mislaid or stolen; that he believed it was stolen by one William Curtis out of his possession, and that said Curtis had transferred the note to M’Clure and Brooks of Lexington; that he had never transferred or contracted said note to any person in any way whatever; that any transfer of the note by Curtis to M’Clure and Brooks, was without his authority; and that the interest in said note was still in him. Upon the trial before the justice, a-judgment was given in favor of Burton, from which Dees appealed to the circuit court. On the ’ trial in the circuit court, a subpoena, duces tecum was served upon Brooks to produce the note. He did so: and the defendant offered to prove, “that on the next day after the note wgs executed, the plaintiff, Dees, and a man by the name of Curtis, came to the store of M’Clure and Brooks, of Lexington, together, and that Curtis sold the ’ ! j t t , i • J note for goods and merchandize ; that they received the goods and went off together; that they were horse-drovers from Kentucky, and came together, and that Curtis delivered the note with his, Curtis’, name on the back of it.” This evidence was rejected by the court, and the plaintiff had a verdict and judgment. To the opinion of the cpurt in refusing to admit the testimony, the defendant excepted, and appealed in the nature of a writ of error to this court.
    
      A. Huntsman for the plaintiff in error.
    1. The court erred in receiving the note as the foundation of the action, after the rejection of the affidavit and note, as it did not accord with the provisions of the act of Assembly. See 2 Scott, 481-2-3, which requires a refunding bond, which is not taken.
    2. It is insisted, that the court erred in excluding from the jury such testimony as was calculated to show that the note was transferred for a valuable consideration, under such circumstances as to warrant the conclusion, that it was done with the consent or connivance of the plaintiff. 2 Starkie, 27.
    3. If an individual stands by and witnesses the disposal of his property by a third person, without making known his claim, he is precluded from setting it up against the purchaser.
    .4. The sum being seventy dollars on a lost note, it is insisted the justice had no jurisdiction of it, any more than on the endorsement of a note above fifty dollars.
    
      J. H. Talbot for defendant in error.
    The judgment in this case should be affirmed, because—
    1. The act of 1819, ch. 27, is only made with the view of assisting the party who has lost or mislaid the evidence of debt, and should the same be re-claimed, the party would have the right to read it in evidence, the pleadings ^e^ore just*ces of die peace being by parol. If the note could be read before the justice, so it could in the circuit court, where the cause was carried by appeal, because the trial is de novo, and the court above is bound to let in all the proof proper and competent in the court below.
    
      2. The circuit court did not err in rejecting the evidence offered, as set out in the bill of exceptions; first, because Brooks, (the witness offered to prove that he had traded for the note of Curtis, who was in company with the plaintiff,,) was clearly an incompetent witness, he'being interested; and, second, this defence could not be set up by Burton, the obligor, in a suit by the obligee, when the obligee had not regularly negotiated the paper, and consequently the suit could only be prosecuted in the name of the obligee.
    3. Brooks is no party to the suit; and any equitable right he might have to the note, or the money when collected, cannot be enquired into by a court of law, in a suit situated as this is.
    4. Curtis’s name was on the back of the note, as appears from the bill of exceptions. This was certainly notice to Brooks that he was risking the equitable title of Curtis, he having no assignment from Dees, the payee.
    5. The act making the person for whose use the suit is brought liable for costs, does not vary the law, except to make him responsible for costs.
   Catron, Ch. J.

delivered the opinion of the court.

The plaintiff below, now defendant in error, had or had not the right to sue. If the note had been in his presence, and by his assent and approbation, sold and delivered by Curtis to M’Clure and Brooks, they had the undoubted right to sue thereon in the name of Dees for their own use; nor would the latter have had any power to dismiss or control such suit, nor would it have abated on his death. Act of 1825, ch. 29, sec. 3. By the first section of the recited act, it is provided, that £Cin all suits prosecuted in the name of one person for the use of another, the person for whose use such suit is brought, shall held and deemed the real plaintiff on record, against whom judgment shall be rendered, and execution issue for the costs he may he liable for, as in other cases.

If the circuit court determined correctly, it is not perceived how the intention of the Legislature can be carried into effect. In a proceeding originating before a magistrate, the proper time to contest the plaintiff’s right to sue, is on the trial. We think the evidence was improperly rejected.

It is insisted that the suit must he in the name of Dees, if the note he sued on, for the use of M’Clure & Brooks, and that a verdict for the defendant in this case will be a bar to another action. This is a mistake. The present suit, if the right to sue he in another, will abate, and form no bar to the true owner of the note. In a suit by the owner, Dees’s name will only be used to preserve form, without subjecting him to costs or consequences.

The judgment will he reversed, and the cause remanded for another trial.

Judgment reversed.  