
    P. D. Cook vs. Jonathan Davis.
    A written request from A to B, to pay a sum of money for tlie former, will not authorize C, who advances it, to recover the same from A, in an action brought in B’s name for money paid, laid out, and expended, Nor would the action derive any additional support from the declaration of the defendant, that he would have settled it if the plaintiff had not sued him,
    BEFORE EARLE, J., AT FAIRFIELD, FALL TERM, 1837.
    Summary process for money paid, laid out, and expended. The defendant had a valuable negro man, named SimoD, whose mother, Tilly, a very aged woman, belonging to one Smith ; and to gratify Simon, the defendant was desirous to relieve Tilly from servitude, and to place her where she would be comfortably provided for. He wrote a letter to that effect to the plaintiff, requesting him to purchase her if it could be done for twenty-five dollars, with an understanding that she should be maintained by the Aricks, to whom she had formerly belonged. He . did 'not purchase her, but showed the letter, or rehearsed its contents, to L. D. Arick and to John Arick, his son, and informed them that the defendant would pay twenty-five dollars of the pripe. L. D. Arick then purchased the negro for thirty dollars, four or five years previous to the trial. The letter was not given up to Ajjick, and being mislaid, was not produced at court. The plaintiff was trustee, under some settlement, for the children of L. D. Arick, and to enable him to purchase Tilly, assigned to him a note for twenty-six dollars, which he, as trustee, held on one Smith, who was her owner, and instead of it, took a note for the same amount on L. D. Arick and John, which was afterwards paid. Tilly was maintained at Arick’s, and died there about two years previous to the trial.
    Wm. E. Pearson deposed that in 1835'he saw the letter casually at Cook’s, and he and the plaintiff reading it, concluded that the defendant was responsible for the price. Since the commencement of the action, the defendant had said he was sorry that Cook had sued him, for he would have settled it — and that when the crop was laid by, that he would send Simon down and see about it.
    His Honor decided that the action could not be sustained. The plaintiff had paid no money, and he could -not maintain the action for the benefit of others. If there was any liability at all on the part of the defendant, it was to Arick; and whether that arose from an express or implied contract, he alone could sue. He decreed accordingly for the defendant.
    The plaintiff appealed, and moved for a new trial on the following grounds -.
    1st. Because the defendant was under a legal liability to the plaintiff for the sum sued for.
    2nd. Because the plaintiff was at liberty to lend his name to the persons equitably entitled to the money, and they ought to have been allowed to recover it in his name.
    Peareson, for the motion.
    Clarke, contra.
   Curia, per Earle, J.

There can be no doubt if Cook, on receiving the letter from the defendant, had proceeded to purchase the negro woman in compliance with the request, that he might have recovered the sum of twenty-five dollars, as so much money paid for the defendant at his instance. But in the case made, the plaintiff comes into court without having money for the defendant, and claims the privilege of lending bis name to enable a stranger to recover, to whom no request was made, but who alleges be has paid money on the faith of the request made to the plaintiff. When a person has laid out bis own money for the use of another, either with the express or implied consent of such other, the law implies a promise of repayment, for breach of which an action of indebitatus assumpsit may be maintained for money paid, laid out, and expended. But the general rule which governs actions in this form, is, that -the action should be brought in the name of him who has the legal interest in the contract. Now, the plaintiff here could have no-interest in the matter, for there was in fact no contract creating a liability either by express or implied assumpsit, which could become the foundation of an action. He could not by any assignment or form of transfer,, invest Arick with the right to make the defendant bis debtor, by paying money for him, and then to use the name of Cook to recover it back. Until Cook bad acquired a right of action himself, by paying the money, there was nothing that be could assign, not even a chose in action and therefore be could not enable another to maintain an action in bis name which be himself could not maintain. It is'not like the case of a bond or a negotiable note transferred by the obligee or payee without assignment in writing; 'for there a legal interest in the contract did exist, and the delivery of the instrument which is the evidence of the debt, constitutes a power of attorney to sue in the name of the obligee or payee. If Arick paid the money for the defendant on the faith of the letter to Cook containing the request, I see no solid' objection to bis suing in bis own name. Certainly, without intending to say that be could recover, if there was any legal liability on the part of the defendant, it was to the person who actually advanced the money for him. If- it be' true that there is no privity between Arick and the defendant, as the counsel supposes, it is equally clear that there is no legal liability on the part of the defendant to the plaintiff. And we áre not to lose sight of the established rules of pleading, so essential to the rights of parties, and to the symmetry of judicial proceedings, in the pursuit of a vague equity.

I think the action derives no additional support from the declaration of the defendant, that be would have settled it if Cook bad not sued him. This was probably said under the belief that Cook bad really paid the money, or if be knew otherwise, it can hardly be strained into an acknowledgment of Cook’s right to maintain the action and to recover for what be bad not paid.

The motion is refused.  