Savage ex rel. Barrett v. Carter, 64 N.C. 196 (1870)

Jan. 1870 · Supreme Court of North Carolina

64 N.C. 196

W. R. SAVAGE to the use of MILLS E. G. BARRETT v. WILLIE CARTER and others.

An action at law upon a note payable to B. agent of A., brought before the adoption of the present Code, should have been in the name of B., as plaintiff, and not in that of A.

(Grist y. Backhouse, 4 D. and B. 362; BowdY. Wadswoi'th, 2 Dev. 130; Waddell v. Mowe, 2 Ire. 261, cited and approved, Whitehead v. Riddick, 12 Ire. 95, cited, distinguished and approved.) '

Debt upon bond, tried before Pool, J., at Fall Term 1869 of Bertie Court.

Tbe plaintiff declared upon a bond for money, payable by tbe defendants to “ Mills E. G. Barrett, agent of William E. Savage.”

Tbe defendants pleaded tbe General Issue, and moved for a non-suit, on tbe ground of variance.

In obedience to an intimation from bis Honor, the plaintiff submitted to a non-suit, and appealed.

Peebles & Peebles, and Rogers & Batchelor, for tbe appellant.

A principal may sue upon a bond in wbicb bis name is disclosed as sucli. Add., Oont. 9 and 10, Obitty, Oont. 231, Whitehead v. Riddick, 12 Ire. 95.

Smith, contra.

Tbe legal contract is with Barrett, tbe subjoined words being merely, of description. Brown on Actions (45 Law Lib.) 100,1 Obit. PI. 9 ; Brown on Parties (56 Law Lib.) 42, 3, Schaeh v. Anthony, 1 M. and S. 573 j 'Buckley v. Ilardy, 5 B. and A. (11 E. O. L.) 355; Grist y. Backhouse, 4 D. and B. 362.

Eodmaít, J.

This was an action of debt, brought before the adoption of the Code of Oiyil Procedure by wbicb the law in respect to parties to actions is materially altered. We are therefore to decide the question presented on the law as it stood when the action was brought. By its express provisions the Code does not apply to such actions, until after judgment. The bond sued on, was payable to u Mills E. G. Barrett, agent of Wm. E. Savage,” for the hire of certain slaves. It is a deed poll: it does not appear, except inferentially, to whom the slaves belonged. Therefore Whitehead v. Riddick, 12 Ire. 95, wbicb was a deed interpon-tes, is not applicable. It is said in 1 Chit. Pl. 3, “ If a bond be given to A, conditioned for the payment of money to him for the use or benefit of B, or conditioned to pay the money to B, the action must be brought in the name of A, and B, cannot sue for or release the demand.” The reasons for this doctrine are previously stated. Conformable to it are several decisions in this court. In Grist v. Backhouse, 4 D. & B. 362, the note was payable to “ Eicbard Grist, agent of bis assignees,” in Dowd v. Wadsworth, 2 Dev. 130, it was payable to A, guardian of B : In Waddell v. Moore, 2 Ire. 261, it was payable to A, executor of B. In the two first of these cases it was held that the legal payee was the only proper plaintiff, and in the last, that the executor need not describe himself as executor, and such description was sur-plusage. We think ourselves bound by these authorities, especially by Grist v. Backhouse, as being most closely in point, in the present case.

The Judgment below must be affirmed.

Pee Cubiam. Judgment affirmed..