Anderson v. Patrick , 8 Miss. 347 ( 1843 )

Mr. Chief Justice Sharkey

delivered the opinion of the court.

The defendants were sued as the maker and, indorsers of two promissory notes. On the affidavit of R. A. Patrick, denying the interest of Anderson in the notes, the plaintiffs’ attorney was put under a rule requiring him to show his authority for using the name of Anderson as co-plaintiff. On the questions arising under that affidavit, the cause has been twice before this court. A power of attorney was ultimately produced, authorizing the proceeding, whereupon the defendants filed two pleas.

1st. The general issue.

2d. A special plea, stating for what and to whom the notes were given, and that they were sold and transferred to McKiernan alone; that Anderson had no interest whatever in them; which plea is verified by affidavit.

To this last plea the plaintiffs replied generally that Anderson had an interest in the note at the commencement of the suit; and to this replication the defendants demurred, and assigned special causes. The court sustained the demurrer and gave judgment for the defendants, the plaintiffs refusing to plead over. From this judgment an appeal was taken, and the plaintiffs’ counsel insists that the demurrer was improperly sustained.

The plea of the defendants was manifestly bad, as it amounts only to the general issue. A similar plea was so held in the case of Netterville & Boyd v. Stevens & Pettitt, 2 How. 642.

The plea contains but a matter of fact, which, at the common law, the plaintiff is bound to prove under the general issue. 1 Chitty’s Pl. 527.

At the common law the plaintiff was bound to prove the mailing of the note and indorsements by proof of the hand-writing, and this was prima facie evidence of interest or ownership. He may now be put upon proof of his interest in the note, by proper showing on the part of the defendant. Under the general issue, the defendant may show a want of interest in the plaintiff; for it is a general denial that the plaintiff has a cause of action, as was held by this court in the case referred to. This being the case, the demurrer ought to have been extended to the plea, as containing the first fault which would have been fatal on general demurrer. But the replication is an answer to the only material allegation in the plea; it traverses the only material fact pleaded. It avers that Anderson had an interest in the note at the time the suit was brought. By this must be understood such an interest as would entitle him to sue at law; nothing else would be an interest. It was, in effect, equivalent to saying that the note had been indorsed to him jointly with McKiernan. So that, in either point of view, the demurrer was improperly sustained against the plaintiff.

But the defendants’ counsel has asked us to retrospect the whole record, and insists that 'if it should appear therefrom that the judgment is right, then we should affirm it.

When the counsel for the plaintiffs introduced their power of attorney from Anderson, authorizing the prosecution of the suit in his name, the defendants’ counsel moved to dismiss the suit, upon the ground that the plaintiffs’ attorney had failed to show that Anderson was interested therein; and also offered to prove by a witness that Anderson had no interest in the notes; arid, ás further evidence, they offered McKiernan’s answer in chancery, in which he asserts himself to be sole owner. But the court overruled the motion, because such an inquiry was proper for the jury only. In this the court was right. No one can recover, unless he has an interest in the thing sued for; and the jury must always be satisfied that a plaintiff has such an interest before he can recoven In detinue, for instance, the party must prove to the jury his right in the property. So if a party sue for money, he must show to-the jury that he is entitled to it. At the common law, if suit was brought by the payee of a note, he was required to prove the signature before the jury, and this established his right. If suit was brought by the holder of an indorsed note, he was bound to prove-the signatures of the maker and indorsers, and this was sufficient proof of his interest or his right, until it was rebutted.

The interest or ownership of Anderson is a question of fact, without which he cannot recover. That interest may be proven by different grades of evidence, or rather the common law rule of evidence may be altered; but the principle that an interest is indispensible, is not altered, nor is the common law altered in regard to the power of the jury to determine the fact of interest. According to the common law, if a plaintiff did not prove his interest on the trial, he might be non-suited. Here the court would certainly charge the jury that they could not find for a plaintiff' who had no interest in the thing sued for. A former decision of this court, made in this case, is relied on; but that decision does not warrant the conclusion that the question of interest was to be decided by the court. It was only held that Anderson would be required to prove his right to sue.

In the case of Netterville & Boyd v. Stevens & Pettitt, it was held that the defendants might, under the general issue, introduce proof to show that the plaintiff was not the owner of the note, and, had consequently no right to recover. When the attorney introduced' the power of attorney, that was his authority, and entitled him to be discharged from the rule; but the court was right in refusing to hear the evidence of Anderson’s interest, unless it had been offered under the issue.

The judgment must be reversed and the cause remanded.