
    Dorsey v. Hagard, use of Wathen.
    In an action on anote,,purporting;onitB.face to be given for ascertain-consideration, where defendant provedia failure of'such consideration-; plaintiff may b'y parol proof- show, that the note'was norgive-a. for-the consideration expressed on its faco, but for another.and different consideration.
    
      Cole, counsel for plaintiff m error:;
    
      t The question presented fot the consideration of this; «ourt is,.did the circuit court err in this proceeding;- and* iin the judgment given for plaintiff? On the affirmative •side of this issue, on the part .of defendant, we say that .the circuit court did err, for the following reasons: First, the note -in suit was given in consideration of a security debt, and it.is .proved that that debt was-paid; and the court erred in receiving parol evidence to prove a different consideration than .-that .expressed in the note itself. In the second place,.from the plaintiff’s-own evidence,, the note in suit is not his contract. :It is, therefore, a nudum pactum as to him, and to every other person, for if he cannot recover, (there being no legal or equitable -interest in him,) then no use can ai ise therefrom to any one else. If the plaintiff cannot recover for himself, he ■ cannot recover for another, for to sue to the use of another, is nothing more nor less than giving authority upon record to the cestui quemse, to control the proceeds of the suit when recovered. It is true, the .person to whose use the action is brought, is responsible for costs, but nevertheless, this does not alter the law that requires -the plaintiff in an action to show that his legal right has been affected.by defendant — 1 Chit. Plead. ,1.
   Edwards, Judge,

delivered the expinion of the court.

This was an appeal from a justice of the peace to the circuit court-of Perry county. In the circuit court, Wa-then had judgment for fifteen dollars .debt, two dollars and forty cents damages and costs. Dorsey moved for a new trial, and the court overruledthe motion, and Dorsey brings the case here by writ of -error. On the trial dn the circuit court, the plaintiff gave in evidence the fol-■Jowing note/.

“I promise to pay Austin Hagard the amount I ,am bound .for as security for J. Wathen. November 29, 1834. IR. S. DORSEY.” .

The defendant then offered in evidence the following ■note:

“On the 20th day ©f October next, I promise to pay Mr. Jeremiah Wharton or bearer, fifteen dollars and twenty-five-for .value received. January 5th, 1833. John Conner, Daniel Ornara, R. -S. Dorsey. Witness: William A. Keyte.”

On this note was the following endorsement:

“March 1st, 183,7. For value received, I-do assign .-unto R. S. Dorsey a note for 15 dollars and 25 Gents, due from John O’Conner to J. Warthen .& R. S. Dorsey tmd.myself as security. .Dan’l.-O’Meara.”

In an action on on its face To'bt given for a certain T failure ^such consideration, roí^rooKshow^a~ that the nou was not given for the consideration expressed on its face, but for another and different consideration.

The defendant then proved by Hagard, the plaintiff in this action, that he never saw the note sued on till the day before he appeared in this cause; that he never authorized the taking of the note or the institution of the suit, and that the defendant did not at the time the note was given, nor at the time of the trial, owe him one cent. Wathen,. to whose use the action was brought, then.proved that the defendant bought of Wathen an improvement upon'public land, and that the note sued upon in this action, was given in part consideration of mat improvément.

The error assigned is, that the. court gave judgment-for the said Austin Hagard, to the use, &c. when, by the law of the land, the' judgment ought to have been given for the said Richard S. Dorsey,' against the said Austin Hagard.

rphis action is founded on a note, and the defendant attempts to show a failure of consideration. The plaintiff proves a different consideration by parol evidence. Whole, ^ does not aPPear that the judgment °f the circuit court was improperly rendered, and unless it was clearly erroneous, it would be wrong to disturb it. Judgment °f the circuit court ought therefore to be affirmed, and the other judges concurring, it is affirmed,  