BROWN v. FOSTER, 4 Ala. 282

GOLDTHWAITE, J. 1. We think it must be intended from the allegations of the declaration that Brown commenced the suit against Atkins and prosecuted it to judgment in his own name, without any designation of a use to another. The effect of this suit was to destroy the negotiable quality of the noie, which thereby became merged in the judgment and was therefore incapable of further transfer. Having thus lost its negotiable quality, no right of action from any indorsement on it could be transferred to Clements so as to enable him to maintain an action in his own name.

The reason why this cannot be done is. that the maker and the several indorsers are liable for the same debt, though in different modes, and a payment by the maker is a discharge of each of the indorsers. But if one indorsee could obtain judgment against the maker, and afterwards transfer a right of action to another, in one or more of the indorsements, differ.ent plaintiffs would have different judgments for one and the same debt, and it would be difficult if not impossible to ascertain which was entitled to satisfaction, or who was discharged by the payment if satisfaction was made.

This reason is conclusive to show that the maker and indorsers of a note cannot be liable to different persons at the same time. [Beek v. Robley, 1 H. B. 89; Marsh v. Newall, 1 Taunt. 109; Randall v. Bell, Bailey J. 1 M. & S. 723; Hall v. Gentry, 1 Marshall, 555.] 2.

In the present ease, Brown’s right of action against Foster continued to exist after the judgment recovered against the maker of the note, but it continued merely as an ordinary chose in action — and it may well be questioned whether any equitable right whatever could be transferred without an assignment of the judgment, for it is impossible to conceive of a separate ownership of these liabilities, without an entire subversion of the indorser’s right of subrogation consequent upon his payment of the note.

Conceding much force to the argument that the equities existing between Brown and Foster, ought not to affect Clements if the note had not lost its negotiable quality at the time when transferred to him — we will now inquire whether the record discloses when, or the manner by which, Clements obtained an interest in the note. 3.

It is not alledged in the record, nor was it in evidence, so far as we can learn from the bill of exceptions, that Brown assigned or transferred the note to Clements at any time previous to the recovery of judgment against the maker, consequently he is not now to be considered as having obtained an interest in it until its negotiable quality was lost by its merger into the-judgment. The only indication of his having an interest in the suit, is the admission made by Brown upon the record, that the action is instituted for his use.

This mode of proceeding is quite common with us, and is a convenient mode of informing the defendant that the beneficial interest in the suit is transferred to the person therein named.

Besides this, the practice is directly recognized by statute, the plaintiff is made responsible for costs, and the suit will not abate by the death of the nominal plaintiff. [Dig. 262, §22, 259, §3.] Some other unimportant consequences may flow from this mode of proceeding, but we are not aware of any decisions, either here or elsewhere, which gives it any effect against the defendant except to exclude evidence of the a.ám\ssionspend,ingthesv,it, of the nominal plaintiff. [Chisholm v. Newton, 1 Ala.

Rep. 371.] On principle this admission of interest in another seems to stand on the same footing as any other, with the exception that it affords evidence that the defendant is advised of the transfer of the interest in the suit. The counsel for the plaintiff in error has conceded the set-off would be proper if this suit was in reality as it is in name, the suit of Brown. We think the onus remained with him to show that Clements was the real party in interest, and also that the note was transferred to him before its negotiable quality was destroyed in consequence of the judgment recovered against its maker.

As this was not done the question, so ably argued is not supposed to arise. Let the judgment be affirmed.