delivered the opinion of the court:
The appellant brought an action against A. L. Greer, on a note for fifteen thousand dollars executed *746by him to Marcus A. Finch, president of the Covington Locomotive and Manufacturing Company, and indorsed by said Finch and by H. P. Longmore, cashier of the Kentucky Trust Company Bank, the indorsement by the latter being in full, making the instrument indorsed by him payable to Messrs. Ellis & Sturges, or order. The plaintiff alledged in his petition that the note sued on, had been negotiated in the Kentucky Trust Company Bank, and indorsed by its cashier to said Ellis & Sturges, who by their deed of assignment, had transferred it and numerous other bills, notes, &c., to the plaintiff in trust, for the purposes specified in the deed. He made the Covington Locomotive and Manufacturing Company, Ellis & Sturges, the commissioners who were appointed by the court, to take into their possession the assets, and wind up the affairs of the bank, as well as A. L. Greer, defendants in the action. He also exhibited as a part of his petition, a copy of the assignment, from Ellis & Sturges to him as trustee.
1. A deed of assignment to a trustee for the benefit of creditors of “all the bills, drafts, pr omissory notes, negotiable securities of every name and nature belonging to the said firm of E. & S., and pertaining to, or connected with, the business of said firm, does not pass a bill or note transferred to the maker of the deed by indorsement mere ly for purposes of collection.*746The defendants, Greer and the Covington Locomotive and Manufacturing Company, filed an answer, in which they alledge that Ellis & Sturges were never the owners of the note sued on, that it was indorsed to, and left with them, by the Kentucky Trust Company Bank, for the purpose of collection merely, that it always had been and then was the property of said bank, that the plaintiff did not acquire any interest in, or right to it, whatever, by the deed of assignment executed by Ellis & Sturges, and could not therefore maintain his action.
This answer was demurred to by the plaintiff, the demurrer overruled, and a judgment rendered for the defendant from which the plaintiff has appealed.
In examining the validity of the defense relied upon in the answer, the note sued on, must be regarded as belonging to the Kentucky Trust Company Bank, and as having been transferred by its cashier, to Ellis & Sturges only for the purpose of collection, the truth of these allegations in the answer, being *747admitted by the demurrer. The question then is, if such be the fact, did the note pass to the plaintiff by the deed of assignment? The decision of this question, does not, as was assumed in the argument, depend upon the fact of the execution of the assignment, or of its genuineness, and, therefore, the cases referred to on that point have no application, but upon the legal effect and operation of the deed. Does it transfer to the plaintiff, the notes and bills, which were indorsed to Ellis & Sturges to collect, and in which they have no interest, or does it only transfer to him, such notes and bills as belonged to them? As the assignment was made, that the trustee might collect the debts and demands transferred to him and apply the money arising therefrom, to the payment of the assignors debts, it could not have been the intention of the parties to embrace in it notes and bills which did not belong to the makers of the deed, and in which they had no interest. This we think is sufficiently manifest from the language of the deed by which “all the bills, drafts, promissory notes, negotiable securities of every name and nature belonging to saidfirm of Ellis & Sturges and pertaining to, or connected with the business of said firm, are transferred and assigned to the plaintiff. The notes and bills transferred were such as belonged to the authors of the deed, and pertained to, or w.ere connected with, their business. The note sued on, not being of that character or description, did not pass to the plaintiff by the deed of assignment. Ellis & Sturges could have transferred it, and thereby passed the legal title to it, although the Trust Company Bank, was the real party in interest, but, considering the object they had in view, in executing the deed to the plaintiff, and the language therein used, we are decidedly of the opinion, that it was not embraced by it.
2. A demurrer to a plea, alledging, for defense to a suit on a note, that the plaintiff is not the legal owner of the note, but that it was transferred to plaintiff, assignor, merely for collection, and that it belongs to another, the faet is to be taken as true and the demurrer sustained. None but the legal owner can sue on a note, though the legal owner consent.*747As then the plaintiff is not invested with the legal title to the note, nor has any beneficial interest in it, it would seem to follow as a necessary consequence, *748that he cannot maintain an action upon it. It has, however, been argued, that as the persons who have a right to sue upon it are defendants, and make no objection to a recovery by the plaintiff, it should be presumed that he is suing for their benefit, and as it is immaterial to the defendants to whom they pay it, they cannot rely upon this objection. No such presumption, however, can arise from the silence of the defendants who are referred to, but even if they had answered, and consented that a judgment might be rendered for the plaintiff, it would not have enabled him to maintain the action. A plaintiff must have a cause of action, otherwise he is not entitled to a judgment. It would be an utter perversion of every principle of pleading, and an obvious violation of all the rules prescribed, for determining the right of a party to maintain an action, to permit a third person, having no interest in the subject matter in contest, to carry on a suit in his own name, on the ground that the real party in interest had consented that he might do it for his benefit.
Wherefore, the judgment is affirmed.