Taylor v. Acre , 8 Ala. 491 ( 1845 )

GOLDTHWAITE, J.

This case is the same as that of Moffat v. Wooldridge, 3 Stewart, 322, and must be governed by that decision, unless the circumstance, that the leading process being attachment, creates a substantia] difference. It is supposed the party holding the beneficial interest in a note, without the legal title, must sue in his own name, as he is unable to swear the defendant is indebted to the nominal plaintiff. We can perceive no difficulty in instituting a suit by attachment which will not obtain to the same extent, in bailable process; but in either case the affidavit would properly be, that the defendant was indebted to the nominal for the benefit of the real party, and the bond would conform in its recitals to the facts of the cause.

The attempt to introduce the note, under the statement filed subsequently, was properly repelled by the Court, under the circumstances, for the plaintiff could not be permitted to succeed, without showing himself .invested with a legal right of action; and to make this out, a promise to pay the note to the party having the beneficial interest was essential, in the absence of an in-dorsement.

There seems to be no error in the record. Judgment affirmed.