
    Poor against Guilford.
    A mere agent or attorney, in whom is the legal title to a chose in action, his principal having the beneficial interest might, before the Code, maintain an action upon it in his own name, even though a like action might lie in favor0 of his principal.
    An attorney holding for collection a note against A, received as security therefor an assignment of an interest in a note held by A, against B, sufficient to pay the first note. A afterwards recovered judgment against B on the second note, and assigned that judgment to 0, the latter having notice, before the assignment to him, of the prior assignment to the attorney. C having collected the judgment debt from the defendant therein, it was held, that an action against C for the amount of the first note was rightly brought in the name of the attorney.
    Although the attorney had. no beneficial interest in the money, he had a legal interest sufficient to maintain the action, and a recovery by him would bar any subsequent action in favor of the person having the beneficial interest. 0 having notice of the assignment to the plaintiff, of an interest in the note on which the judgment was recovered, received the assignment of the judgment subject to the plaintiff’s prior right, and when he collected the money, he received it to the plaintiff’s use, to the extent of such prior right.
    Oliver L. Poor made his promissory note for about $335, payable to E. M. Poor, or bearer. Early in the year 1843 E. M. Poor placed this note in the hands of Franklin Poor, an attorney, for collection. In April of that year, Oliver L. Poor, for the purpose of securing the payment of the note before mentioned, executed to Franklin Poor, the attorney, an assignment in the following terms:
    “For value received, I hereby transfer and assign to Franklin Poor an interest to the amount of $334.48, in a certain note owned by me, and signed by Fanny and Alfred Hull, now in the hands of W. Angel, of Cuba, for collection, as collateral security for the payment of a certain promissory note of that amount and interest, now held by said Franklin against me.
    “Oliver L. Poor.”
    In October, 1843, a judgment for over $900 was recovered by O. L. Poor against the Hulls, upon the note last mentioned. In December following, O. L. Poor assigned to Robert Guilford, $345.62, of this judgment, and a day or two thereafter he made a further assignment of it to Guilford to cover any demand which Guilford might obtain against him. Guilford then took charge of the collection of the judgment against the Hulls, and in July, 1844, he made a settlement with them in which he received of them the full amount of the judgment. Guilford had notice of Franklin Poor’s interest in the Hull note, at the time of the assignment of the judgment to himself.'
    Franklin Poor brought this action of assumpsit, in 1847, against Guilford, to recover the amount of O. L. Poor’s note to E. M. Poor, as money had and received to the use of the plaintiff. The cause was tried before a referee, and judgment rendered for the plaintiff for the whole amount claimed. This judgment was affirmed by the supreme court, in the eighth district, at general term, and the defendant appealed.
    
      George F. Comstock, for the appellant,
    cited, 1 Chitty on Pleading, Springfield ed., 2; Gra. Prac., 2d ed., 90; 12 John., 1; Taintor v. Prendergast (3 Hill, 72); 2 Wend., 158; 10 Id., 156; 21 Id., 110; Paley on Agency, by Lloyd, chs. 4 and 5; Pigot v. Thompson (3 Bos. & Pul., 147); Sargent v. Morris (3 Barn. & Ald., 277).
    
      A. Taber, for the respondent,
    cited Harp v. Osgood (2 Hill, 216); Banfill v. Leigh (8 T. R., 571); Sargent v. Morris (3 Barn, & Ald., 277).
   Foot, J.,

delivered the opinion of the court. In this case, there is no doubt of the justice of the judgment of the supreme court, nor of its being a full protection to the appellant against a second claim for the same demand, and it ought not to be reversed, unless some well-established principle of law has been violated.

The beneficial interest in the demand, for which the judgment was rendered, belongs to one E. M. Poor; and the question is, whether the respondent has such a title, and stands in such a relation to the beneficial owner, as to authorize a judgment in his favor.

The respondent having the legal title to the interest in the note of the Hulls, on which the appellant received the money, and upon receiving which arose the implied assumpsit to pay, the question is, whether this assumpsit may not be held to have arisen in favor of the holder of the legal title, although he holds it as attorney and trustee for the beneficial owner. There is no doubt that on the receipt of the money, a right of action arose against the appellant in favor of the respondent, ór of E. M. Poor. The money did not belong to the appellant, and the respondent was the legal, and E. M. Poor the beneficial, owner of it. (Seaman v. Whitney, 24 Wend., 263, and cases there cited.)

When an express contract is made with an agent by a third person, the agent may maintain an action upon it, though he may be known to act as agent; and though his principal may, or may not, be entitled to a like action on the same contract. This is a well-settled proposition. (Story on Agency, § 393, and cases there cited; Foley on Agency by Lloyd, ch. 4.) The fact that the legal title to the money in question is held by the respondent as agent, would seem, therefore, to furnish no obstacle to his recovery; and why should it ? For, if the real owner is also entitled to an action, the present recovery would certainly be a good bar to it, as the respondent is clearly acting within the scope of his authority, in prosecuting this suit and collecting the money for his principal.

The implied promise which the law raises is always auxiliary to the title, and is only a legal mode of enforcing it. Chief Justice Bronson, in delivering the opinion of the supreme court in Norton v. Coons (3 Denio, 134), states the principle correctly. He says: “ Where there is a legal right to demand a sum of money, and there is no other remedy, the law will, for all the purposes of a remedy, imply a promise of payment. (See, also, Chitty on Cont., 609.)

On the whole, the recovery in this case does not appear to me to have violated any rule of law, but on the contrary, to be in accordance with well-established principles.

The counsel for the appellant referred to the case of Gunn v. Cantine (10 John., 387) as precisely in point. But the difference between that case and this is very great. Here the appellant has the legal title: there the attorney in fact had not; he merely handed the security of his principal over to Cantine to collect.

Judgment affirmed.  