By the Court.
Lumpkin, J.delivering the opinion.
[1.] Was the Court right in rejecting the testimony of •Jesse J. Cavender ?
We think not. It being conceded that the plaintiff knew .the person intended to be examined, and that he had directed his cross-examination accordingly, he could not possibly have been injured by the misnomer. Besides, the case being on the appeal, and the interrogatories having been filed in the Clerk’s office for more than twelve month-3, the objection •should have been made in writing, before the case was submitted to the Jury. It was apparent on the face of the papers.
[2.] We hold that the testimony of Joseph B. Merrell was properly excluded. The direct interrogatories, it is true, referred only to a single conversation with Williams. It did not, however, identify the conversation as to time or place. But the witness, in his answer, relates two conversations which he held with Williams — one at Porter’s house in 1850, the day before Porter died; and the other in 1851, when an inventory was taken on his estate.
.Now having voluntarily, but in obedience to the obligation *572■imposed by his oath, to tell the whole truth, mentioned what transpired on both of these occasions, the witness should have considered the cross-question as to who were present, &c. as applicable to both, and have answered accordingly.
[3.] The object in introducing the fourteen fi. fas. in favor of the estate of Porter against Dobson, was to show that the whole purchase money for the land had not boon paid by Dobson; but to make this proof relevant, the plaintiff should have gone further, and identified this debt as a part of the purchase money. It does not appear but that these executions may have been founded upon some other and totally distinct consideration. The testimony should have been rejected.
[4.] Was the Court wrong in allowing John Smith to be sworn, to disprove the solvency of Dobson ? We think not. The proof was to rebut the new evidence submitted by the defendant, as to the solvency of Dobson since plaintiff had closed.
[5.] Rut the main question in this case is, was Williams entitled to maintain this action on his own account ?
He had transferred the notes given by Dobson to him, in payment for the land, to Porter, without recourse or liability over against him. What interest had he in the land? He only held the legal title to secure the notes; and -he had parted with the notes for value, and upon terms which exonerated him from all responsibility. To our minds, it is clear that he could not sue for himself.
[8.] We will not say that his name might not be used by the holder of the notes for the purchase money, to enable the transferee to enforce payment; nor will wo say hut that the holder could, by a proceeding in Equity, compel Williams to convey him the title for the same purpose. We simply, however, mean to deny that Williams is entitled to eject Tompkins for his own benefit. And who has asked him to interpose for any body else? Perhaps the holder may not desire it. And could Tompkins, by filing a bill against Williams, and tendering the balance of the purchase money to Mm, get a *573•title ? Surely not. Eor no one but the holder of the notes' 'is entitled to receive the money.
We have not alluded to the fact, that Williams happens to he the administrator of Porter, as no reliance was put upon •that circumstance in the argument. The case has been managed, throughout, and was discussed before, solely upon the •assumption, that Williams was entitled to bring this ejectment in his own name and on his own account, he being the owner of the legal title, and the purchase money not having been fully paid to his assignee, Porter.
Suppose Williams were permitted to recover the land— what then? It could not he treated nor administered as the property of Porter’s estate. It is manifestly improper and absurd to allow a vendor, who has parted with the land by giving a bond for titles, and parted with the notes given for the purchase money, without recourse, to intermeddle further with the land.