
    *Clarksons v. Doddridge & al.
    July Term, 1857,
    Lewisburg.
    (Absent Lee, J.)
    i. Bonds- Payable to Commissioners — New Comi’iis sioners Substituted — Who flay Maintain Suit. — Commissioners appointed by a court of equity to sell lands, make the sale and take bonds for the purchase money, made payable to themselves; and before the money is paid the commissioners are removed and others are appointed. The last commissioners are entitled to sne at law on the bonds, in the names of the first to whom the bonds were made payable.
    2. Pleading and Practice -Action ior Benefit of Another — Declaration.  -Though it is usual to state in the declaration or by endorsement thereon, or on the writ, that the action is brought for the benefit of the parties entitled, yet tins is not essential, i And if the defendants have any doubt whether the j suit is brought for the benefit of the last commis- ; sioners, they canby motion have a rule upen them [ to avow and prosecute or disavow and dismiss the j action.
    ¡ This was an action of debt in the Circuit ! court of Kanawha county, brought in the | name of C. E). Doddridge and S. A. Miller ] against D. J. W. and John N. Clarksons, on three bonds. There was a verdict and | judgment for the plaintiffs; whereupon the | Clarksons applied to this court for a sttper-i sedeas, which was allowed. The case is stated by Judge Moncure in his opinion.
    Price and McComas, for the appellants. Pitzhugh, for the appellees.
    
      
      Non '.fepuiiab!e Paper — Legal Title to — Who May Maintain Suit. — In Sangston v. Gordon, 22 Gratt. 755. the suit had relation to bonds made payable to “L. Sangston, secretary of the Baltimore Agricultural Aid Society.” At page 764, the court said: “This form of security was no doubt adopted to enable him (Sangston) to sue for and collect the debts due the society, without the expense and inconvenience of his bringing before tbe courts the numerous parties interested in the proceeds of sale. It is clear that the legal interest in these bonds is vested in Sangston alone. TJpon well settled principles the descriptive words used in the instruments may be rejected, and suits at law or in equity may be maintained thereon in his name, without the addition of other parties. Porter v. Nekervis, 4 Rand. 859; Clarksons T. Doddridge, 14 Gratt. 42; Sangston v. Coffman, 21 Gratt. 263.”
      In Davis v. Snead, 33 Gratt. 705, a receiver, appointed by the court to receive purchase money for land sold by him as commissioner under a previous decree in the cause, took bonds payable to himself for the money. The court said (at page 710); “Nor are the powers of the receiver at all varied or increased by tbe fact, that he is the obligee in the bond. The legal title and r jght of action are thereby vested in him; but he cannot sue except by tbe direction of the court which appointed him, and whose agent he is. He may any time be superseded and another appointed in his place to collect the money. Clarksons v. Doddridge, 14 Gratt. 42.”
      
      Where the right to receive the money due on a claim is in the assignee, without the corresponding right to bring an action for it in his own name, he has a right to bring an action at law in the name of the assignor; and he will be regarded, even by a court of law, as the substantial plaintiff m the action. Cox v. Crockett, 92 Va. 56, 22 S. E. Rep. 840, citing the principal case.
      Same — Assignment of -Effect of Statute.- -See principal case cited in foot note to Davis v. Miller, 14 Gratt. 1.
      The principal case was distinguished in Lewis v. Glenn, 84 Va. 947, 6 S. E. Ret). 866.
    
    
      
      -Pleading and Practice — Action for Benefit of Another — Declaration. — The proposition of the principal case that, though it is usual to state in the declaration, or by endorsement thereon, or on the writ, that the action is brought for the benefit of the parties entitled, yet this is not essential, has been approved in Hayes v. Va. Hut., etc., Asso., 76 Va. 228; Triplett v. Goff, 83 Va. 785, 3 S. E. Rep. 525; Bentley v. Standard Fire Ins. Co., 40 W. Va. 739, 23 S. E. Rep. 586.
      See also, monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801; monographic note on "Assignment."
    
   MONCURIO, J.

This is an action of debt brought in the name of Doddridge and Miller against D. J. W. and John N. Clark-son, on three bonds for the sum of four thousand seven hundred and twenty dollars and sixty-six and two-thirds cents each, dated December 25th, 1851, and payable nine, eighteen and twenty-four ^months after date. The obligees in whose names the action is brought, are styled “commissioners” in the bonds; and the said sum of money is therein described, respectively, as the “ ‘first,’ ‘second’ and ‘third’ payment on salt property of the late Charles G. Reynolds, sold to D. J. W. Clark-son this day.” The declaration is in the ordinary form. There was a general demurrer to the declaration; in which the plaintiffs joined. The defendants also tendered a special plea in bar, averring, in effect, therein, that the said bonds were executed to the plaintiffs as commissioners appointed in a chancery suit to sell certain lands; that before the said action was commenced, the said plaintiffs were substituted by the appointment of other commissioners in the said suit, to wit, Quarrier and Gilli-son; and that thereby the right of action on the said bonds was taken from the said plaintiffs, and vested and now remains in said Quarrier and Gillison. To this plea the plaintiffs objected; and the objection was sustained by the court; ‘ ‘being of opinion that the plea aforesaid does not present a good and sufficient bar to the action brought in this case in the name of Doddridge and Miller, to recover the sums secured to be paid by the several writings obligatory upon which it is founded; and that the present commissioners have a right to sue upon said bonds in the name of said Miller and Doddridge.” To this opinion the defendants excepted: and showing no ground in support of their demurrer to the declaration, it was overruled; and judgment was rendered for the plaintiffs for debt, interest and costs. That judgment is now before this court for revision on a writ of supersedeas.

The only error assigned in the judgment is in the rejection of the special plea. Did the court err in rejecting it? Was the action properly brought in the names of the commissioners to whom the bonds were *payable? Or ought it to have been brought in the names of the new and substituted commissioners?

It is a general rule, that an action on a contract must be brought in the name of the party in whom the legal interest in such contract is vested. The legislature alone has power to make an exception to this rule. An exception is made by the Code, ch. 144, § 14, p. 583; which authorizes the assignee of any bond, note or writing not negotiable, to maintain thereupon any action in his own name which the original obligee or payee might have brought. The assignee acquires only an equitable right with a capacity, expressly given him by-statute, to assert it at law in his own name. But the legal title still remaining in the obligee or payee, a right of action is incident thereto; and the assignee may, at his election, sue at law in his own name, or in that of the obligee or payee for his benefit. Garland v. Richeson, 4 Rand. 266. Another exception seems to be made by the Code, ch. 116, § 2, p. 500.

It is also a general rule, that the legal interest in an obligation for the payment of money is vested in the obligee or his personal representative. The exceptions to this rule also must be derived from the statute law; and are few in number. An exception arises in England under the statute of bankruptcy, which expressly vests, the bankrupt’s right of property and of action in his assignees; who may therefore maintain in their own name an action on a bond payable to the bankrupt. A bond payable to a corporation aggregate, is not an exception to the rule; though an action thereon must be brought in the name of the corporation, and not of the persons composing it when the bond is executed, or their personal representatives. The corporation itself, and not the persons composing it, is the obligee; and the case there- • fore falls within *the rule and not the exceptions. A different rule is said

to be applicable to a bond payable to a person who is a corporation sole; in which case, an action at law upon the bond must, after his death, be brought in the name of his personal representative, and not of his successor. There is a strong instance of this kind in a case very recently decided by the Court of queen’s bench, in which it was held that a bond given to the ordinary by an administrator, under the statute of distributions, passes, on the ordinary’s death, to his personal representative, and not to his successor. Howley v. Knight, 14 Ad. & El. 240, 68 Eng. C. L. R. 238.

In the case under consideration, the bonds are payable to Miller and Doddridge, the old commissioners, in whom, therefore, _ by the very terms of the bonds, and according to the general rule of law before stated,, the legal interest in, and right of action on, the bonds were vested. There is no law in existence which divests this legal interest and right of action. The court of chancery', it is true, was authorized by law to substitute new, in place of the old, commissioners. But the effect of such substitution was not to transfer the legal interest in the bonds from the old to the new commissioners. It only authorized the new commissioners, upon giving the security required by law, to collect the bonds; and to bring suit, if necessary for the recovery thereof, in, the names of the old commissioners. The right of the new commissioners to receive the money, does not imply a right to bring an action therefore in their own names. A person may have a right to receive money, without any corresponding right to bring an action for it in his own name. This happens whenever a chose in action, not negotiable by the law merchant, and not coming under the_ provisions in the Code, ch. 144, \ 14, is assigned. The assignee has a right _ to receive the money, but not to bring an action therefor in his own name. He has, ^however, an ample remedy. He has a right to bring an action at law in the name of his assignor; and he will be regarded, even by a court of law, as the substantial plaintiff in the action. The court will protect his rights, and will not permit the nominal plaintiff to receive the money, nor to release the debt, nor to dismiss the action. The same principle applies to this 'case. The Circuit court was therefore ri.q-ht in saying- that the present commissioners have a right to sue upon the bonds in the name of Miller and Doddridge, the obligees.

But it was argued, that even if they liad a right to bring such a suit, it ought to appear that the suit was brought by them or for their use; and that as the declaration does not show that the suit was so brought, the fact, if it had been so, should have been replied to the plea. It is usual, when an action is brought in the name of one person for the use of another, to state the fact in the body of the declaration, or by an endorsement thereon or on the writ. And it is useful and convenient to do so, to give notice to the defendant of the rights of the substantial plaintiff, and to enable the court to protect them by its orders. But this is not necessary. The statement is no material part of the pleadings. The cause of action is complete without it. It was, therefore, no bar to the action in this case that new commissioners had been substituted to the place of the plaintiffs, notwithstanding it may not appear on the record that the suit was brought by the former, or for their use. The defendants are in no danger of being compelled to pay the money into the wrong hands. They have an ample remedy to prevent that; but not by a plea in bar of the action. Their remedy is by motion. If they really apprehend that the action was not brought'by or for the use of the new commissioners, and that the old commissioners are fraudulently attempting to recover *and collect the money for their own use, they can, by motion, obtain a rule requiring the new commissioners io avow and prosecute, or to disavow and dismiss the action. And the court, if it have cause to suspect any such thing, may and ought, ex mero motu, to award such a rule. The action was no doubt brought by and for the use of, the new commissioners. The fact is plainly inferable from the opinion of the court expressed in the bill of exceptions. It also appears, from an exhibit produced and read by the defendants in connection with their plea, that the new commissioners were appointed for the very purpose of bringing an action on the bonds. The action was in fact brought shortly thereafter. The attorneys who brought it, and the new commissioners, bear the same surnames (Quarrier and Gillison), and may be the same persons.

I am of opinion that there is no error in the judgment, and that it be affirmed.

The other judges concurred in the opinion of Moncure, J.

Judgment affirmed.  