
    Joseph M. Clark et al. vs. Michael Reed et al.
    In this state, a suit at law may be maintained upon a last negotiable note, since the statute (How. & Hutch. 373, sec. 12,) subjects the holder to all the equities between the maker and payee.
    
      Upon a note made payable to “H., agent for R.,” suit was brought by R., who proved on the trial, that the note was given in settlement of an account due R. by the maker; held, that the legal title was in R., and that the suit was properly brought by him.
    After a verdict and a judgment in an action on a note, for plaintiff, the judgment will not be disturbed, because the declaration does not allege a promise to pay the plaintiffs, the proof showing that such a promise was made; the defect, if any, is cured by the statute of jeofails.
    The statute of jeofails cures only defects in the pleadings, it does not supply, deficiencies in the evidence.
    In error from the circuit court of Panola county; Hon. Hugh R. Miller, judge.
    Michael Reed and others, under the firm of Reed, Brothers & Thomas, sued Joseph M. Clark and Thomas Carroll upon a note described in the declaration in the first count as follows, viz : “ Said defendants on the third day of April, 1843, at Belmont, in the county aforesaid, made their certain promissory note in writing, and thereby then and there promised thirty days after date, by their firm name of Clark &. Carroll, to pay the order of Reuben Hause, agent for Reed, Brothers & Thomas, fourteen hundred and forty-two dollars and seventy-two cents, without defalcation, value received, payable at the Farmers and Merchants Bank, Memphis, Tennessee, which said promissory note is lost or mislaid, so that the same cannot be found, to wit, on the-day of - 1845, at Memphis aforesaid; and the plaintiffs aver that said Reuben Hause was their agent in'taking said promissory note, whereby an action hath accrued to said plaintiffs, to have and recover from said defendants the said sum of money in said promissory note specified.” This was all the first count ; the second was for goods, &c. sold.
    The defendants plead non-assumpsit and payment.
    On the trial the plaintiffs proved, by Reuben Hause, that he was the agent of the plaintiffs in the year 1843, for collecting their debts, and as such took from defendants the note sued for, of which he furnished a copy with his deposition, and also a statement of the items of indebtedness to plaintiffs by defendants, for which the note was given. The plaintiff proved 'also the loss of the note, and filed the affidavit of one of themselves to the same effect. There was proof also of a payment of $1000 on the note.
    The defendant asked the court to instruct the jury, “ that in this case the first count in the plaintiffs’ declaration being defective and faulty, the jury cannot, under this count, find for the plaintiffs.” This was refused; the jury found for plaintiffs; and a new trial being refused, the defendant sued out this writ of error.
    
      John W. C. Watson, for plaintiffs in error,
    Cited Hutch. Code, 849; Chitty on Bills, 180, 226, 428, 566 ; 8 Conn. R. 286, vol. 3, (2d ser.); 5 Yerm. R. 500; 8 Cranch, 31; 14 Pet. 293; 3 How. S. C. Rep. 575, 576; 6 S. & M. 212; Bayley on Bills, 335; 8 Mass. Rep. 103; 2 Tuck. Com. 145; 2 Wash. 187; 3 Mun£ 566; 10 Wend. 488; 7 Barn. & Cress. 90, (14 Eng. Com. Law Rep. 20 ;) Truly v. Lane, 7 S. & M. 325 - 332; 6 lb. 89; 12 Leigh, 204.
    
      LI. W. Walter, for defendants in error,
    Cited 2 Saund. Plead, and Ev. tit. Prim and Agent, 257; 1 Chitty, PI. 6,7, 8; Gunn v. Cantine, 10 John. Rep. 387; Vischer v. Yates, 11 lb. 23; 12 Ib. I ; Bogart v. De Bussy, 6 Ibid. 94; Gilmore v. Pope, 5 Mass. 491; 5 Maulé & Sel. 385, 386, 390; 2 Cond. Rep. 386 - 392; 1 Camp. N. P. Rep. 337; Reaves v. Dentils, 6 S. & M. 89 ; Truly v. Lane, 7 lb. 325 ; Chitty on Bills, 291 -296, and riotes; 10 John. Rep. 104; 3 Conn. (2d ser.) 436 ; 2 Bay, 495; Roll v. Watson, 12 Moore, 510; 11 Verm. 470; Depew v. Wheelan, 6 Blackf. 485 ; 3 Yea tes, 442; 16 Mart. Louis. Rep. 4; 8 Ibid. 576; 5 Wend. 578; Moore v. Anderson, 3 S. & M. 321; 5 lb. 226.
    
      C. Miller, on same side,
    Cited the following authbrities, to show that where the note or promise is made to the agent, eo nomine, either the principal or the agent may bring an action, to wit: Story on Agency, § 154, 160 a, note 2, and cases there cited; § 169, and note 1 at end; § 394, and note 1, (on page 491,) and § 395.
   Mr. Justice ThacheR

delivered the opinion of the court.

This was an action at law upon a lost note. In this state there is good ground for holding, that a recovery can be had at law upon a lost note, because, by our statute, tvhoever derives title under the payee, must take the note subject to all the equities between the maker and the payee. Story on Prom. Notes, 431. The statute H. & H. 373, sec. 12, obviates most of the difficulties which stand in the way of the propriety of a suit at law upon a lost,note which is negotiable.

The note sued upon was made payable to Reuben Hause, agent for Reed, Bro’s & Thomas.” Upon the trial, it appeared that the note was given in settlement of an account due from Clark & Carroll to Reed, Brothers & Thomas, and that the contract of payment was to them and not to Hause. The legal title was in them. It would have been a different case had the term “ agent,” &c. been employed by Hause merely as discriptio persona., or had it been made to him for the use of his principal. These plaintiffs, therefore, rightly instituted the suit in their own names. Story, Agency, § 154-160, 169, 394,' 395.

It is insisted, that the first count of the declaration is defective in containing no averment of a promise to pay the plaintiffs. But there was a verdict; and a bill of exceptions to the overruling a motion for a new trial embodies all the evidence, showing that the promise to pay the 'plaintiffs was sufficiently proved, as well as enough to sustain the verdict. The defect in the count was then cured by our statute of jeofails, which is very broad, and which declares that no judgment, after verdict, shall be stayed or reversed “ for omitting the averment of any matter, without proving which, the jury ought not to have given any such verdict,” &c.

The case of Reaves et al. v. Dennis, 6 S. & M. 89, relied upon by the plaintiff in error to take this case out of our statute of jeofails, did not turn upon the pleadings but the proof. The court did not at all doubt but that the defect in the declaration was cured by the verdict. The statute was intended to cure defects in the pleadings, but not in the proof. In that case, upon a vital point there was no proof, and the verdict was therefore without evidence, and contrary to law. To hold that such a verdict cured all deficiencies in the proof, would go far to make juries the supreme and ultimate arbiters in all cases. In a word, the statute of jeofails or amendments, by its terms, relates only to the pleadings and formal proceedings; it does not, either in letter or spirit, purport to cure defects in the evidence. This was the whole extent of the decision in the case of Reaves v. Dennis.

The judgment in this case must be affirmed.  