
    Cocke vs. Dickens, assignee, &c.
    When a note is made payable to C, as agent for D, the legal title and interest in the note is in C.
    A suit upon a note must he brought in the name of the person who has the legal interest.
    This was a writ of error prosecuted from the Circuit Court of Fayette County. The plaintiff below brought his action of debt on the following note: “On or before the first day of January, 1831, I promise to pay C. E. M’Ewen, agent for the executors of Joseph Branch, dec. four hundred and ninety dollars, with one year’s interest; value received. Witness my hand and seal, this 15th May, 1828. THOS. J. COCKE,
    for James N. Cocke, [seal.] THOMAS J. COCKE, [seal.]”
    This note was assigned by H. R. W. Hill, acting executor of Joseph Branch, dec. to Samuel Dickens, who declarfed in his own name as assignee of said executor. The defendant demurred to the declaration, and the plaintiff joined in demurrer; and upon the trial of the cause in the court below, the demurrer was overruled, and judgment given for the plaintiff. From this judgment of the Circuit Court, the defendant prosecuted his writ of error to this court.
    
      
      V. D. Barry, for the plaintiff m error. a 1
    1. An ac- . . . . . . r . tion on a contract must be brought' m the name or the party in whom the legal interest is vested. 1 Ch. on PI. 2: 1 Tidd 7: 1 Mar. and Yer. 261, Rutherford vs. Mitchell.
    2. Where a bond is made to A, to pay him, or a third person, a sum of money for the benefit of the latter, the action must be in the name of A, and the third person cannot sue for, nor even release the demand. 1 Ch. on PI. 4: 1 Esp. N. P. 79.
    3. If the condition name any to whom the payment shall be made, it cannot be paid to another. 3 Com. Dig. 102.
    4. No action will lie in the name of a principal on a written contract made by an agent in his own name, though the defendant may have known the agent’s character; and a demurrer in such case, where the United States were plaintiffs, was sustained. Coxe’s Dig. 48: 1 Paine, 2-52: United States vs. Parmele, 3 Wash. C. C. R. 560: Clark’s Ex’r vs. Wilson, Mar. and Yer. 261.
    5. The term “agent, &c.” in the note, is mere cle-scriplio personal. Ch. on PI. 5, note 1: 8 Mass. R. 103: Mar. and Yer. 261, Rutherford vs. Mitchell.
    6. The declaration does not show the appointment of the endorser as ex.ecutor, &c.
    
      John D. Martin, for defendant in error.
    In this case the defendant in error relies upon the following authorities in support of his right of action: first, it is laid down in first Chitty on Pleading, pages 4, 5 and 6, that “when a deed is inter partes (i. e. between A of the first part, and B of the second part,) C, a stranger, cannot sue either in debt or covenant, on a covenant therein, though made for his benefit; but when the deed is not inter partes and reciprocal, a stranger may sue whether it be indented or not, provided he have a legal, and not a mere beneficial interest.
    
      And upon a single bond or deed poll, reciting that the obligor had received of A $40 for the use of C D, equally to be divided, to be repaid at such time as should be thought best for the profit of C and D, it was decided, that C and D might sustain separate actions for their respective moieties. And when a contract, not under seal, is made with A to pay B a sum of money, A or B may sustain an action in his own name; if, however, the promise' had been to A to pay him for the use of B, A is a trustee, and B having no legal interest, cannot sue. It is further stated, that a mere agent or servant cannot sue; but if the agent or servant had a beneficial interest in the contract, they might sue in their own name, or that the principal might sue.
    It is also laid down in 3d Starkie’s Evidence, page 1088, that if the factor sell m his own name, the buyer may set off as against the claim of the principal, the debt due to the factor. Aliter, if the buyer be informed of the principal before the whole of the goods are delivered. Where a party sells in the character of an agent, although without disclosing the name of his principal, if the -disclosure is made before the payment, the effect is the same. Further, if the factor sell in Jus own name, and without disclosing the name of his' principal, yet if the principal give notice to the buyer to pay him, and not the factor, the buyer will not be discharged in afterwards paying the factor. It is also the case where the factor sells under a del credere commission. In the same book, page 1619, it is laid down, that an action may be brought either in the name of the party who actually made the bargain, or in the name of the party really interested.
    It is also laid down in 2d Kent, 486, that if the factor in a case duly authorized, sell on a credit and taire a negotiable note payable to himself, the note is taken in trust for his principal, and subject to his order; and if the purchaser should become insolvent before the day of payment, the circumstances of the factor having taken the note in Ins own name would not render him responsible his principal. Even if the factor should guarantee the sale, and undertake to pay if the purchaser should fail, or should sell without disclosing his principal, the note taken by.him as factor, would still belong to his principal, and he might waive the guarantee, and claim possession of the note, or give notice to the purchaser not to pay it to the factor. In such a case, if the factor should fail, the note would not pass to his assignees to the prejudice of his principal; and if the assignees should receive payment from the vendee, they would be responsible to the principal; for the debt was not in law due to them, but to the principal. Upon the effect of the seal, the court is reminded, that our statute places bills single or writings obligatory, upon the same footing as to negotiability, as promissory notes or inland bills of exchange; and they are also referred to the case of Hodgson vs. Dexter, in 1st Peter’s Cond. Rep. page 333, where the Supreme Court of the United States says, “the only circumstance which could excite a doubt, was the technical operation of the seal. This, in plain reason and common sense, can make no difference in designating the person to be responsible for the contract.” If this be so, the converse of the proposition must be true.
    These principles and authorities, the defendant in error thinks, are amply sufficient to sustain his right of action. It is shown by them not only that the principal may sue, but also that he has full power and control over the debt. If, as the law most clearly is, he can prevent the buyer paying to the agent by giving notice, then the question is, how can he get his debt from the buyer? Can he waive the contract made with him through his agent, and bring an action on the case? In that event, the buyer could plead that there was a contract, or evidence of a contract of a higher nature subsisting, and bar his action. And this would involve the absurdity that the law gave him full power .to prevent the buyer paying to the agent, and yet gave him.no remedy to recover Ms right. Again: Could not the principal give a release or discharge of the debt to the buyer; and would not this be a good plea in bar to an action by the agent? If this he so, a legal interest must be in the principal sufficient to enable him to bring suit in his own name; for if his interest be amere equity, he could only by a release or discharge, communicate to the buyer the right to set it up by a resort to a court of equity. Again: the consideration of the promise of the buyer flows from the principal, the agent being a mere conduit pipe through which, on the one hand, the consideration passes, and, on the other hand, the promise proceeds to his principal. This is unquestionably so where the agent by contract agrees to pay, acting for his principal, and there can be no reason why the same rule should not work to the benefit of his principal, where anything is to be paid to him.
    The defendant in error is aware, that the courts have decided that the agent may sue in his own name in cases of notes or obligations made payable to him as such; but these decisions, so far as they have been discovered by him, have been upon the question, whether or not he could maintain an action in his own name, and consequently do not determine that the principal cannot, though deciding that the agent may. See Martin and Yerger’s Rep. and Chitty on Bills.
    It is also conceived that the rule laid down in first Chitty’s Pleading, “that, in general, suit must be brought in the name of the person holding the legal interest,” does not conflict with the view taken of this case; for Áre very words used by Chitty, imply exceptions to the rule, under which, it is believed, the law heretofore ' cited -shows this case clearly comes; if he had intended that this rule was universal, he would have said, “in all cases.”
    It is insisted, that the satisfaction of'this judgment would be a complete discharge of the debt of the buyer; that therefore, he has no right to complain, and that the reception of the money would be the right of the princi- and that therefore, .the justice of the case has been fully reached by the judgment of the court below, and ^lat court> under the act of XS09, ch. 126, is bound to affirm the judgment, although, upon strict technical objection, they could not do so.
    There are many cases in the books of notes payable to executors, administrators, guardians, &c. where the courts have said that the terms were mere descriptio per-sonen■; and in most cases, this is true; but it is believed that in a case like the present, there is something real and operative in the term; that it is a legal promise through the agent to the principal; and when it is said by the court, in the case of Rutherford vs. Mitchell, in Martin and Yerger’s Rep. (where the question was, if the suit could be sustained by the agent in his own name,) that the term was merely descriptio persona, it was said without due deliberation, and not warranted by authorities. And such,'it is conceived, will all the cases turn out to be.
   Green, J.

delivered the opinion of the court.

The only question in this cause, is, whether the action can be maintained in the name of Hill’s assignee, or Hill himself, the note having been made payable to C. E. M’Ewen, agent for the executors of Joseph Branch, deceased.

An action on a contract must be brought in the name of the party in whom the legal interest is vested. 1 Chitty’s Plea. 2. The legal interest in this case is in C. E. M’Ewen. The introduction of the words, ££agent for the executors of Joseph Branch, deceased,” is only descriptive .of his person. 8 Mass. Rep. 103: Martin and Yerger’s Rep. 261. They„ cannot do more than show, that the executors of Branch have a beneficial interest in the nóte. But if it had stated in express terms, that the money was to be paid M’Ewen for the benefit of the executors of Joseph Branch, deceased, the action should have been in the name of M’Ewen, and not of the executors. 1 Chitty’s Plea. 4. There are cases where an agent makes a contract, in which he has a beneficial interest, that will authorize an action both by the principal and the agent, each one recovering only so much as he may be entitled to. But where there is an express contract under seal, with the agent, to pay him, he alone can sue. Such is the settled law of England. 1 Chitty Plea. 5-6. In Massachusetts, the same doctrine governed in the case of Buffin vs. Chadwick, 8 Mass. Rep. 163. And so this court held in Rutherford vs. Mitchell, Mar. and Yer. 261. These cases show, that though the note describe the payee as agent, yet, as the contract is with him personally, the suit must be in his name. So if an agent bind himself personally, and engage expressly in his own name, he will be held responsible, though he should in the contract or covenant, give himself the description or character of agent. 2 Kent’s Com. 493: 3 Starkie on Ev. 1620. The judgment must be reversed.

Judgment reversed.  