Edstis, C. J.
An application was successfully made in the court below to set aside the writ of arrest, on the ground that the plaintiff was not the true owner of the bill, but that it belonged to the Bank of Charleston, and that the plaintiff was the mere agent of the bank for its collection. From this decision the plaintiff has appealed.
The inhibition of the act of 1840, under which the writ of arrest was sot aside by the district judge, is in these words: “That no citizen of another State shall be hereafter arrested in this State at the suit of a non-resident creditor, except in cases where it shall be made to appear that the debtor has absconded from his residence.” Act of 1840, to abolish imprisonment for debt, s. 9.
This suit is not brought by a non-resident creditor, and it is not denied by the counsel for the defendant that the plaintiff can stand in judgment in this suit, nor that the endorsement of the defendant gives the right to an agent to maintain an action on the bill in his own name.
The affidavit made by the plaintiff is positive and unqualified, and we do not consider this as a case in which the intendment of the statute is 'sought to be evaded, nor that the disclosures made by the plaintiff weaken the effect of his affidavit. True it is that the bill was brought by the plaintiff as agent for the Bank of Charleston, and that the bank has directed its collection ; but the plaintiff swears that he does not consider the transaction as closed. The relations between the plaintiff and dependant, defendant on the sale of the bill, may or not create a responsibility, from which no discharge has been given by the bank to .the plaintiff; and, in this state of things, in re agencld, he is at liberty to consider himself as a creditor of the party from whom he purchased the bill, under representations of the appropiation of a shipment of sugar to its payment, by the house of the defendant, which were not carried into effect. He certainly has such an interest in the bill as will entitle him to exercise the full rights of a bond fide litigant creditor, and the case does not come within the exception provided in the 9th section of the act before cited.
The judgment of the District Court is therefore reversed, and the rule taken by the defendant to obtain the setting aside of the writ of arrest and the discharge of the defendant discharged, with costs in both courts.
H. H. Stravibridge, for a re-hearing. The question at issue is not what remote interest Convey might have, in case the Bank of Charleston should attempt to make him personally liable, but whether Convey in person was really Elbert’s creditor. The right of arrest belongs only to the creditor himself. “ The arrest is one of tho means which the law gives the creditor to secure the person of his debtor.” C. P. 210. An agont may, indeed, arrest the debtor of his principal; but an agont eanuot swear that the debt due to his principal is due to himself in person.
But, say the court, tho relations between the plaintiff and defendant, dependent upon the sale of a bill, may or not create a responsibility, from which no discharge has been given by the bank to tho plaintiff, and in this state of things he is at liberty to consider himself as a creditor of the party; ho has such an interest in the hill as will entitle him to exercise the full rights of a bond fide litigant creditor.
The mere possibility of an agent becoming liable to his principal, cannot entitle him to exercise the full rights of an actual creditor, and assume a power greater than the principal himself ever possessed.
The chance of A’s becoming, at some future period, the bond fide creditor of B, can'jiot authorize tho arrest of tho latter.
[22]*22Could the plaintiff obtain judgment for the $4,500, on a petition setting forth that “ ho may or not become liable to the bank for that amount,” and that, therefore, Elbert is really indebted to him ?
From the earliest decisions of our tribunals it has been held that, a mere contingent interest does not suffice either to sustain an action or to authorize an affidavit. The very first article of the Code of Practice defines an action to be “ the right given to every person to claim judicially what is due or belongs to him” “An action can be brought only by one having a real and actual interest, which he pursues; but as soon as that interest arises, he may bring his action.” C. P. art. 15.
In Whetton v. Townsend, 1 Mart. 188, it was decided that, an affidavit for arrest, mado before the debt was payable, was bad, and the arrest was dismissed.
In the Planters’ Bank v. Lanusse, 1 Mart. 691 and 695, it was settled, that, an endorser who had not paid his endorsee, cannot bo permitted to vote at a meeting of the creditors of the insolvent drawer, and swear that he is a creditor. His own liability may bo well settled, but his becoming a creditor of the drawer depends on a future event, viz., his payment of the obligation.
In cases of attachment, generally speaking, it is requisite, as in cases of arrest, that the debt claimed should be actually due. Yet in Taylor v. Drane 13 La. 62, it was held that “ an endorser eannot sue the maker of a note not yet due, on the ground that he ondorsod as surety, and that the latter is about to remove with his property, permanently, from the State, before the note becomes due. It is not a'proper case for attachment, as the plaintiff does not show an existing debt due to him by the defendant, nor an absoluto liability incurred as surety.”
“ So, in partnerships, an attachment or action cannot be sustained by one partner against another, before a liquidation of the accounts between them, because the plaintiff eannot swear positively to the amount of the debt due to him.” Levy v. Levy et al., 11 La. 577.
I repeat it again, the question mooted is, who is the true owner of the bill — the real plaintiff in interest? Be it remembered, that the suit is on a bill of exchange; it is not such an action as Convey might have brought in his own right for any contingent or future damage. It is the property in the debt evidenced by the bill, which is in issue. Both cannot be creditors. There is no such thing known to our laws as two creditors of the samo debt, unless in the case of creditors in solido, which in the present instance is not even pretended. Who then is the real creditor ? Had the parties to the bill all failed, who must have been placed on their schedules as its owner? Who would have been entitled to vote for syndic in his own right? Who, in case of a dispute betweon Conrey and tho bank, as to the real ownership, would, under the evidence adduced, be entitled io receive the dividends ? Who, in case of a counter-claim, opposed by the defendant, could, under that evidence, plead the debt in compensation? Had a creditor of Gonrey and a creditor of the bank attached or seized the debt, which, in the contest, would have been entitlod to the proceeds ? 1
The bare statement of these questions carries the answers on their face, and shows tho property in this bill to belong to the bank alone.
If Gonrey should be ultimately liable to the bank for neglect or mismanagement, it could only be when it had been established that the bank had lost the debt through his fault. Nor could Gonrey, in his own right, be placed on the schedule, vote for syndic, receive a dividend, plead compensation, or even maintain an action in that right, until ho had proved himself formally subrogated to the rights of the bank.
Subrogation could not take place by operation of law, for he is not a surety for the defendant nor with him, nor an endorser, nor a creditor on any other account. C. C. 2156, 2157.
The real owner of the debt set forth in tho affidavit and petition is, beyond doubt or question, the Bank of Charleston, which is not a citizen of Louisiana, nor established or rosident. here, and not entitled, under the law of 1840, to arrest the defendant in its own right and name.
The suit is,.therofore, brought under cover of Conrey’s ñamo, and the defendant is thus deprived of a defence which he could have set up against the bank itself. By various decisions of our courts, an agent is permitted to sue in his own name; none authorizo him, however, to swear as the plaintiff has dono. But, by the very decisions quoted by the plaintiff's attornoy, in such cases tho defendant may avail himself of any dofcnco good against the real owner of the claim.
Benjamin and Miaou, for a re-hearing. The question is, whether the arrest of tho defendant was ill contravention of the law of 1840? From the tenor of the opinion, we infer that the court would not sanction a clear evasion of the law, or, in other words, permit a party, who had no interest in the subject, to lend his name for an arrest, that without his aid could not be made. Let us consider whether such is not the case with tho plaintiff!
There is no proof of any interest in tho plaintiff. His clerk know of no guarantee or responsibility rosting upon him in tho transaction. He purchased the bill as tho agent, [23]*23and with the funds, of the Bank of Charleston. He did not endorse it; ho debited the' bank with the amount advanced; and remitted it to the bank, as its property, to use as it pleased. Here ceased his connection with the bill. If it had been paid, ho would never have hoard of it again. If, after protest, more responsible parties than the defendant had been found in New York,, or Philadelphia, some other agent would have been employed to collect it.
A guarantee by an agent is not to be presumed. All the evidence in the case was drawn from the plaintiff and his clerk; and they do not speak of any such responsibility. The plaintiff says: “ He does not consider the transaction closed until the bill is paid'. The bill originated with deponent, and of course he feels an interest in the termination.” His answer is carefully drawn. He had a full opportunity of stating his position in the most favorable light, and if he had any other interest than is here stated it would have been fully explained. The transaction may not have been closed, and yet the plaintiff’s agency may have been at an end. He might well feel an interest in the bill,-without being made' richer or poorer by the rosull of the suit. The mere solicitude of a zealous agent for the' interest of his principal,, does not constitute such an interest in the subject as entitles the-agent to use the thing as his own. The interest regarded by the law, is to bo counted in dollars and cents, not tested by the sensitiveness of the feelings. Tho answer of the plaintiff is then conclusive that, he had no pecuniary interest, even for his commissions, and that no ultimate guarantee or responsibility rested upon him. We submit, therefore, respectfully that, tho alternative of even a possible responsibility, growing out of the relations of the parties, roforred to in the opinion, is not supported by the evidence. A responsibility which the plaintiff himself would not aver when interrogated, must be considered as not existing. Considering the plaintiff as a mere agent, without pecuniary interest in the matter, he had no right to institute this suit in his own name.
An agent, with general powers, like the plaintiff, may certainly institute a suit. It is an act of administration, often necessary for the preservation of tho credit, but he can only sue in tho name of his principal. That such is the general rule will not be questioned. Let us examine the apparent exceptions. A factor who contracts in his own name, may sue in his own name upon the contract so made by him. But if the principal has dealt with the party as his debtor, and has taken steps in his own name to recover, the right of the factor to sue ceases. Paley on Agency, p. 282, and note, citing Sadler v. Leigh, 4 Camp. 195. An agent may sue on a policy of insurance, issued in his own name, because he is a party to the contract. Ibid, p. 283. The possession of a factor, gives him the right to bring an action of tresspass or trover, for injuries affecting his possession. Ibid, p. 284.
The point is discussed by Judge Story, in his Treatise on Agency, note to § 102. After stating that Chitty had laid down the rule rather too broadly, he intimates that the agent cannot sue in his own name, except when the law considers him a party to the contract.
The holder of a promissory note endorsed in blank may sue, because the law implies a promise to pay to the bearer. The legal title follows the possession. Where there are several endorsers, having distinct interests, it has been held that, one of them may sue for the benefit of all, with their consent, because they are all interested in recovering from the maker. Chitty on Bills, p. 535, and cases cited.
All of these exceptions establish only the following principles: that an agent may sue in his own name, when he has the legal title, though in trust for another; when he has possession of the property in dispute; when he has a direct interest in the subject matter; and when he is a party to the contract. We know of no other exceptions, if these can be called exceptions, in all of which a legal title or interest rests in the plaintiff. In accordance with this view, is our own law. “An action can only be brought by one having a real and actual interest, which he pursues.” Code of Practice, art. 15.
The plaintiff was not the holder of the note. He was not a party by endorsement. He was merely the general agent for the holder. He bought it, not for himself, but as agent of another. He was no party to the contract. He had no possession, with tho right of protecting it. He had no real and actual interest, which we lake to mean a pecuniary interest. He had not received the note even on the trial of the rule.
A case very similar to this is found in the New York Reports. A cashier of a bank had given up a note belonging to tho bank, on receiving a check for an equal amount. The chock was dishonored, and the cashier brought suit on the note in his own name. It was held that, the note was not novated by the check, but that the cashier could not maintain the suit in his own name. The court say: “ It is not as agent, but as holder or assignee, that the plaintiff must show his right. In point of fact, the note never was transferred or assigned to him. If he had the actual possession of it, the court would not entertain an enquiry into his right, unless there was proof that he had obtained possession mala fide; but the difficulty is, that the plaintiff has not the possession, nor a right to the note, by reason of any interest he has in it.
“ The officer or agent cannot, without other authority than that arising out of his agency, prosecute on it, or for it, in his own name.” Alcott v. Rathbone, 5 Wend. 494.
[24]*24So a Party t° a Nil who has assigned it for value to a third person, cannot suo on the bill, although his responsibility as endorser remains. Zacharie v. Black, 3 Howard. Blanchard v. Grousset, 1 Ann. R. 96.
Hence, even an eventual guarantee by the plaintiff, if one were proved, would not entitle him to sue in his own name.
But let us for a moment concede that suit can properly be maintained in tho name of the plaintiff. The question remains whether, by changing the name of the plaintiff of record, the condition of the defendant can bo made worse. All the cases, whether on notes or otherwise, concur on this point. If the suit is permitted, in the name of an agent, but really for the benefit of a third person, the plaintiff is regarded as a nominal party; the party in interest is considered the true plaintiff. The permission of tho law that such suits shall be brought, is given as a matter of convenience and in aid of commerce ; hut this permission is not allowed to destroy any right of the defendant. All defences that could be urged against the true plaintiff, can be made against the nominal party. McNair v. Thompson, 5 Mart. 561.
“ Ho consequence results from it affecting the rights of the defendant, for ho can offer every defence to the suit of tho agent, he could present against the action of the principal. The agent can only be considered as the nominal plaintiff.” Lacoste v. De Armas, 2 La. 265.
But are not the rights of the plaintiff increased by the chauge made ill this case ? Is not the defendant placed in duriori casu ? If the Bank of Charleston had sued, confessedly tho defendant couldnothave been arrested. But P. Conrey, Jr. brings the suit, and the defondant is imprisoned for throe months.
There is no conceivable reason why this plaintiff should bring this suit, excopt to arrest tho defendant. Our courts are open to the complaints of the Bank of Charleston; and, if the arrest had not been desired, the suit would have been brought in its name. The nominal party then exercises a right or privilege, which does not belong to the real party. The bank is permitted to do by its agent, more than it could do by itself.
True, the arrest is a remedy — a means of enforcing payment; but where the law prohibits an act to a particular person, can that person do the act prohibited, by the interposition of another? This would be a mere evasion. Nor do we understand the rule to be confined to pleadings and proofs on the merits. If there are collateral advantages or disadvantages, the court must look to the bottom of the transaction, and decide these, as well as tho merits, according to the character or position of the actual parties. The nominal party must be set aside; and if a right is claimed, or defence urged, the enquiry must bo, can this right be exorcised by the real party — will the defence avail against him. If it can, the same rule will apply to tho nominal party.
Rights and remedies are so blended, that it is often difficult to distinguish them. Hence the most intelligible and safest rule is, to say that the defendant shall not be injured by a change of plaintiffs. In this case he cloarly sustains a serious injury in his personal restraint.
The counsel for the plaintiff admits that the defendant may plead against Conrey every defence that he could urge against the bank. “All that the defendant has a right to exact,” says he, “ and this is a right which never has, and never will be denied him, is that the transfer should not be permitted to operate prejudicially to any defence, which he would be authorised to set up against the bill, had the action been brought in the name of the corporation.
But if the suit had been so brought, the defendant could have set aside the arrest. Ho would have preserved his liberty, which was lost in the change of the name of the plaintiff, although the suit accrues only to tho benefit of the bank. Is not this one of his defences, and has he not lost it by the change ? Rehearing refused.