
    
      George Lomax vs. A. Baker.
    
    Where L for valuable consideration transferred to B an unnegotiable promissory note, without endorsement or other written assignment, B is authorized to sue the maker in the name of L, who, in case of failure to recover, is liable for the costs of the action; ■and L having paid the costs, cannot recover them back from B. Held that he would have been so liable whether the note was negotiable or not. Vide Myers vs. James, 2 Baily, 547; Beimet vs. McHall, 2 C. R., (Mill,) 198. (1.)
    (1.) See Horton vs. Blair, 2 Baily, 545; Ware vs. Key, 2 McCord, 373.
    
      Before Earle, J., Abbeville, Fall Term, 1842.
    This was an appeal from the decision of his Honor, Judge Earle, reversing the judgment of a magistrate. The plaintiff, for valuable consideration, transferred to the defendant an unnegotiable note of hand on a third person, without endorsement, or other written assignment. On non-payment by the maker, the defendant brought suit on the note in the name of the plaintiff. The want or failure of consideration was set up by the maker as a defence against the note, and prevailed. The plaintiff paid the costs of the action, and brought this suit before a magistrate to recover back the amount as money paid for the defendant. The magistrate gave judgment for the plaintiff. On appeal, his Honor was of opinion that the plaintiff ought to have paid the costs, and that he was not entitled to recover them of the defendant.
    Judgment reversed.
    Motion to reverse the order of the presiding Judge, on the ground : That his Honor erred in reversing the judgment of the magistrate.
   Curia, per

Earle, J.

There can be no doubt that the plaintiff was legally liable for the costs of the action brought in his name on the note transferred to the defendant ; and he would have been so liable whether the note was negotiable or not In Myers vs. James, 2 Bail, 547, and in Bennet vs. McFall, 2 Con. Rep. (Mill,) 198, it was held that the transfer by delivery, in either case, constituted an authority to sue in the name of the payee; and the express refusal to endorse or assign the note in writing, instead of diminishing the liability for costs, seems rather to strengthen the grounds of it, by withholding from the transferee the means of bringing suit in his own name. The plaintiff, then, for a valuable consideration, transfers to the defendant a right of action, with authority to sue in his name for the recovery, and must be presumed to know that he would be liable for costs in case of failure. There is no express agreement by the defendant to refund the costs, nor do we perceive any ground on which it can be implied by law. It can hardly be said that they were money paid, laid out, and expended for the defendant at his instance and request; for they were incurred as the legal consequence of an act done by the express authority of the plaintiff, and for which he had actually been paid; for, when he sold the note, he sold likewise the privilege of using his name to recover it. The failure to recover was because it was worthless in his hands, and he ought to be satisfied, if he suffers no other penalty, for taking something for nothing. Motion refused.-

Richardson, O’Neall, Evans, Butler, and Wardlaw, JJ., concurred.  