delivered the opinion of the court.
This suit commenced by attachment, and is brought against the drawers of a bill of exchange, whose draft was protested for nonacceptance.
The principal matter in contest between the parties, is the right of the plaintiff to the note. The defendants insist he is but the agent of the payees, and that there is a failure of the consideration for which the bill was given.
The evidence shows the payees were indebted to the plaintiff, and remitted him the draft for collection. It was regularly endorsed to him. Whether these circumstances might not, in an ordinary case, vest such an interest in the payee, as would discharge him from all equity between the original parties, need not be inquired into in this case. For the conduct of the plaintiff negatives the idea, that he held it *220in any other character than agent. After he received the and commenced this suit, he failed, and filed his bilan. This debt he did not transfer to his creditors, and he now carries on suit in his own name, a proceeding totally inconsistent with the idea, that he received the note in his own right. Had he such an interest in it, that interest must have been transferred to the syndics, and this action be in their name.
sions*3 of°tiie Code of Pracsubject of citaapply lo persons residing state. The endormay°f & commenee an action in hisown name, albufUthehagent of the payee. This will not, however, deeps ^-ight^To" defenceUltabae gainst the payee.On the merits, as to the want of consideration, the case is not clear. The burthen of proof certainly lays on the defendant, and his evidence is not conclusive, though it raises a strong presumption of the want of consideration. The plaintiff, however, attempted to prove the consideration, and failed to establish it for more than eight hundred and seventy-three dollars and thirty-five cents, for which sum we think they are entitled to judgement.
Objections have been made, the defendants were not duly cited, because a delay of one day for every ten miles from this city, to the defendants’ residence in Tennessee, was not aM°wed. We think the provisions of the Code of Practice on this subject have reference to the case of defendants who have a domicile within the state, and that they do not apply to persons residing out of it.
As to the objection to the right of West to bring this action, because he was only agent. We think his case must be distinguished from ordinary cases where agency is created ° . “A . by a power ot attorney, ihe draft, in this instance, was endorsed to him. The legal title to the bill by the endorsement, Was vested in him. He could have released and discharged . ° it in his own name. He was, therefore, the owner of the draft, to all legal purposes, save that of defeating the defendants’ rights to any equitable defence,
It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be annulled, avoided, and reversed; and it is further ordered, adjudged, and decreed, that the plaintiff do recover of the defendants, the sum of eight Hundred and seventy three dollars and thirty-five cents, with *221interest from22d January, 1831, until paid; and costs of suit in the court below; those of appeal to be borne by appellee.
McCaleb, for appellant. Conrad, for appellee.