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seventy-third rule, on the ground that the affidavit of Davis, if true, did not set out a good defence. The court below overruled the motion; from which action the plaintiff appealed.

WM. F. MATTINGLY for plaintiff:

The affidavit accompanying the declaration is sufficient; it describes the plaintiff as cashier of the Bank of Washington, and states that the note sued on was discounted by that bank. That a cashier may sue in his own name, for his bank, is beyond question; and the affidavit, showing the plaintiff to be cashier and tracing the title to the note to the bank, sufficiently shows the plaintiff's right to judg

ment.

A. S. WORTHINGTON for defendant Davis:

The declaration and the affidavit should accord. The former states the note to have been endorsed "to the plaintiff," not adding that he was cashier of the Bank of Washington; the latter shows title to the note in the bank, and while stating the plaintiff to be its cashier, goes no further. A cashier may sue as holder of a note, the property of his bank, but in no other relation to the bank; and the affidavit in this case fails to show the plaintiff to be holder.

Mr. Justice JAMES delivered the opinion of the court.

This action was brought upon a promissory note of five hundred dollars, as follows: "Ninety days after date I promise to pay to Henry M. Dellinger, or order, five hundred and thirty-two dollars for value received, payable at the Bank of Washington, with interest at the rate of seven per cent. per annum until paid. (Signed) Robert S. Davis. (Indorsed.) Henry M. Dellinger." and "protested for nonpayment."

To that was appended an affidavit made by the plaintiff, in the following words: "I, Charles A. James, do swear that I am cashier of the Bank of Washington and plaintiff in this action, That the plaintiff's cause of action is the

promissory note sued on and filed with the declaration attached hereto; that the defendant Robert S. Davis is the maker of said note, and that the defendant Henry M. Dellinger is the payee and indorser thereof; that said note was discounted by the Bank of Washington for full value, before the maturity thereof, in the ordinary course of business; that said note was duly presented for payment on the date of its maturity at said bank, where, on its face, it is made payable, and was not paid, whereof said indorser was forthwith duly notified; that the amount of said note, five hundred and thirty-two dollars, is justly payable by the defendant to the plaintiff, with interest as claimed in the said declaration, exclusive of all set-offs and just grounds of defence."

The defendant made an affidavit setting up a defence, but the court, under the seventy-third rule, holding that the affidavit of the plaintiff was sufficient, and that the affidavit of defence made by the defendant was sufficient, refused to enter judgment on the note.

The question first to be considered is, whether the affidavit of the plaintiff is sufficient; and if it is not, it is unnecessary to consider the affidavit of defence. It is wellsettled law that the holder of a note, even where he is in point of fact the agent for the owner, may sue upon it in his own name. The cashier of the Bank of Washington, if the holder, could sue in that manner. But in his affidavit he states that the note was discounted by the Bank of Washington, and there his affidavit stops, so far as respects the question of holder. He does not state, in addition to that, that after the Bank of Washington became the holder, he succeeded as holder. In other words, the affidavit makes a case up to the point at which the bank was the holder, but adds no facts to show that the plaintiff afterwards became the holder. It makes the case of an agent suing on a promissory note held by his principal, which cannot be done. The plaintiff must sue as holder, although he be only agent.

We have not seen much merit in this matter, but we have been obliged to be so strict heretofore in the application of

the seventy-third rule that we do not feel at liberty to depart from the course that the court has adopted. It is a rule which withdraws cases from the jury, and we have constantly decided, that all of the facts making a case must be set up in the affidavit, so that if they are not contradicted by an affidavit from the other side, the necessity of a jury trial is wholly done away with. Here we find that the affidavit leaves the plaintiff in the possession, not being the holder, of this note, because he has not shown that he is. We feel compelled to adhere to our former decisions in regard to the requisites of the plaintiff's affidavit under this seventy-third rule, and must therefore refuse judgment, and affirm the judgment of the court below.

UNITED STATES, USE OF ALEXANDER ET AL.,

vs.

JOSHUA A. RITCHIE ET AL

LAW. No. 23,051.

Decided March 10, 1884.

The CHIEF JUSTICE and Justices Cox and JAMES sitting.

1. A suit may be maintained in the name of the United States, for the use of several legatees, against the principal and sureties on an executor's bond it is not necessary that a separate suit should be brought to the use of each party interested.

2. In a suit upon a bond, where the bond is filed as a public record, it is unnecessary to make profert of it in the declaration.

3. The neglect to make profert is a matter of form and not of substauce, and cannot be taken advantage of on general demurrer.

4. This court will not listen to any mere matters of form on demurrer; they were at common law subject to special demurrer, and by the rules of this court all special demurrers are virtually abolished.

5. A declaration which states the facts necessary to be stated to make a case, is not demurrable because it contains matters of evidence; the latter is merely surplusage.

THE CASE is stated in the opinion.

HANNA & JOHNSTON for plaintiff.

HUGH T. TAGGART for defendants.

Mr. Justice Cox delivered the opinion of the court.

The case of the United States against Joshua A. Ritchie and others, is a suit brought in the name of the United States for the use of certain legatees, against the principal and sureties, on an executor's bond. It is brought to recover the sum of $1,151.66, as a balance due to the legatees named in the will of Richard Pettit, who died in August, 1873, leaving Joshua A. Ritchie and Louis W. Ritchie as his executors. The original declaration was demurred to and it was afterwards amended. That amended declaration was demurred to, and that was again amended, and the second amendment, or third declaration, as we may call it, was also demurred to on two grounds; one being that the declaration does not make profert of the bond sued on, nor make any excuse for the failure to make profert thereof, and the

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other that the declaration contains matters of evidence. On the argument, the counsel relied on one ground which was assigned for demurrer to the original declaration, viz., that the suit was brought by several legatees together, instead of each legatee suing for himself; the position being, that although the suit was brought in the name of the United States for the use of parties interested, yet cach party interested must sue separately, just as he would have to do if he could sue in his own name.

The precedents have sanctioned this form of suit. In the case of Maddox vs. The State, in 4 Harris & John., we find that the suit was brought on an administrator's bond, in the name of the State, for the use of the executor of one of the deceased distributees, and of all the surviving distributees. There was no point made about it, and the thing was acquiesced in, and, sub silentio, approved. We find a similar case that of U. S., use of, &c., vs. John Rose, in 2 Cranch C. C. R., 567—where no objection was made to the form of the suit. Another is the case of U. S., use of Mackey, vs. Coxe, in 18 Howard, U. S., where the suit was brought for the use of the administrator of the domicile, in the Cherokee Nation, and also of the distributees entitled to the estate of the deceased. And so far as that point was concerned, it was sustained; there were no objections made on that ground at all. We do not think, therefore, the first objection to the suit could be sustained.

The next one to be noticed is the omission to make profert of the executor's bond. The answer to that by counsel was, that in the same case already referred to-of Maddox vs. The State and in several cases referred to, it has been decided that where the bond is filed as a public record, it is unnecessary to make profert of it in the declaration. We think this is a sufficient answer. But in addition to that, the neglect to make profert is a matter of form and not of substance, and it could not be taken advantage of on a general demurrer, as only matters of substance can be. We require a demurrer to be for matter of substance. We do not listen to any mere matters of form on demurrer. They

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