Cummins & Pike vs. James & Woolbridge, 4 Ark. 616

By the Court, Lacy, J. The money that was collected was admitted to have been received on a judgment in. favor of the United States Bank; and the evidence shows that it came into the hands of one of the defendants, (Cummins,) and that he promised to pay the same over upon certain conditions, which were rejected by order of the plaintiffs. It was admitted that fifty dollars had been paid, by the agent of the plaintiffs, who employed the defendants to attend to the collection. The principle is unquestionably true, that a party, to maintain the action, must be entitled to the legal interest in the suit.

If the legal interest is shown to be in the plaintiff, the action will lie; if in another, it cannot be maintained. If there is a contrariety of testimony as to the person in whom the legal interest is vested, and that question is a matter of fact, to be determined by the jury, then of course it will be error in the court to take the question from the jury. There was certainly a conflict of testimony, as to the legal interest. It is undeniably true, that a corporation can have no legal interest in any suit, after its act of incorporation has expired.

This being the case, it is said that the first instruction was rightly overruled, because the charter of the bank had expired more than two years prior to the institution of the suit, and of course it was divested of all legal interest in the claim. '■ This would certainly be true, if the corporate name and capacity of the bank were not continued in force, by

an act of Congress, approved March 2d, 1838, by which she is allowed to proceed to final judgment,. execution and satisfaction of her affairs. Latos TJ. S. vol. 9, p. 713. This act leaves her corporate name still in existence for these special purposes, and by it she is regarded as being entitled to have the legal interest. Now, the refusal of the first instruction virtually took from the jury the question of fact as to the right of action.

The court, by refusing to instruct the jury, that if they believed the legal interest was in the Bank of the United States, then they ought to find for the defendants, clearly decided the point, that there was no evidence tending to show that the bank was the' legal owner of the money. In this they were mistaken; for by admitting the proof that the money was collected upon a judgment rendered in favor of the bank, there was a presumption raised that the bank possessed the legal interest.

This presumption was rebutted and contradicted by other testimony in the cause; but whether it was fully overthrown or disproved, was a matter for the jury, and not for the court, to determine, being a question of contested fact. The effect of the instruction is a practical denial to the defendants of a legal presumption in their favor, which the court had no right to deprive them of;'and, therefore, there is error upon this point. The second instruction was correctly refused. The plaintiffs in error were not entitled to recover, without showing in themselves the legal interest in the suit.

This they might do, by proving that they were legally entitled to the proceeds of the money arising from the judgment in favor of the bank, by assignment, or otherwise; and Cum-mins & Pike would then be chargeable in assumpsit, if the money was so collected, upon special contract, as the plaintiff’s attorneys, to collect the money for them. Judgment reversed.