648

porate power to purchase the paper.644 Where the statute requires suit to be brought by the real party in interest, one who holds under a blank indorsement has, in general, such property in the paper as will sustain an action in his own name.645 But in such case, although the possession carries with it presumption of title in the plaintiff, the defendant may show that he has no such title. 646 And possession raises no presumption of title against the legal owner and payee.647 So, possession by A. of a note payable to the "A. B. Company" will not be sufficient evidence of A.'s title as identical with the company." But where A. finds a bank note, and deposits it for the owner's use with the defendant, and the owner is not found, A. may recover from the depositary, being entitled against all the world except the real owner.649 So, where a note is taken up by the accommodation indorsers, A. and B., and delivered to A., he may sue the maker as the party in interest.650 And several may sue as holders under a blank indorsement, without proof of any joint interest among themselves,651 even where they are successive indorsers in blank.652 So, under a blank indorsement to a firm, the surviving partners may sue as holders without averring the death of a partner and their survivorship. 653 But it has been held that where a bill is indorsed in blank, and delivered to A. as trustee for C., A. and B. cannot bring suit upon it without proof of their title."

654

644 National Pemberton Bank v. Porter, 125 Mass. 333.

645 Rich v. Starbuck, 51 Ind. 87. But under the New York Code it is not sufficient to aver that the payee of a note indorsed it in blank, "and that there is now due to the plaintiff on the note" so much, without other statement of his interest in the note. Lord v. Chesebrough, 4 Sandf. 696.

646 Hays v. Hathorn, 74 N. Y. 486, reversing 10 Hun (N. Y.) 511. But it is sufficient if the legal title is in the plaintiff, although the equitable ownership is in another. Farwell v. Hibner, 15 Hun (N. Y.) 280.

647 Holly v. Holly, 94 N. C. 670.

648 Redmond v. Stansbury, 24 Mich. 445.

649 Bridges v. Hawkesworth, 21 Law J. Q. B. 75.

650 Havens v. Huntington, 1 Cow. (N. Y.) 387.

651 Benj. Chalm. Dig. art. 143; Chit. Bills, 606; 2 Daniel, Neg. Inst. 230; 2 Pars. Notes & B. 439; Ord v. Portal, 3 Camp. 239; Rordasnz v. Leach, 1 Starkie, 446.

652 Low v. Copestake, 3 Car. & P. 300.

653 Attwood v. Rattenbury, 5 Moore, 209. 654 Machell v. Kinnear, 1 Starkie, 499.

Action by Holder without Title.

657

655

§ 1650. The holder of a bill cannot bring suit upon it, if he has no interest, and sues against the will of the real owner, or if the absolute legal title is in another.656 But a holder may bring suit in his own name for the use of the real owner, without any beneficial interest in the paper, provided he has the legal title, especially where such suit is at the request of the owner, as well as for his benefit,658 although originally brought without his knowledge, and subsequently adopted by him.659 And such suit may even be brought for the owner in the name of a fictitious person." 660 The holder in possession of a bill under a blank indorsement may sue, although he is only a pledgee, or holds it as trustee,661 and although the note belongs to another under a pledge as collateral.662

Where the owner of a note payable to bearer dies, the executor may

655 Towne v. Wason, 128 Mass. 517. So, where the real owner forbids payment to the bearer, who is only his agent, Comstock v. Hoag, 5 Wend. (N. Y.) 600; and especially where the action is brought by a mere trustee against the real party in interest, Oberle v. Schmidt, S6 Pa. St. 221.

656 Whiteford v. Burckmyer, 1 Gill (Md.) 127; Owen v. Evans, 134 N. Y. 514, 31 N. E. 999. E. g. where the note was in the possession of a witness and produced on subpœna as his own property. Cobb v. Tirrell, 141 Mass. 459, 5 N. E. 828. So, where the owner of a note payable to bearer died intestate, and, to save expense, an "agent" was appointed to settle the estate, and he brought suit on the note, without the appointment of an administrator. Richardson v. Gower, 10 Rich. Law (S. C.) 109. But see, contra, Wheeler v. Johnson, 97 Mass. 39, where action was brought by the consent of the owners, by a holder in possession, who was afterwards appointed administrator de bonis non of the deceased holder.

657 2 Daniel, Neg. Inst. 218; 2 Pars. Notes & B. 443; Story, Prom. Notes, $3; Wimbish v. Holt, 26 Tex. 673; Hartshorn v. Green's Adm'rs, 1 Minn. 92 Gil. 71). In such action any defense is admissible which is available against the real owner. Farwell v. Tyler, 5 Iowa, 535.

658 Spofford v. Norton, 126 Mass. 533; O'Brien v. Sauls, 2 Rich. Law (S. C.) 932. So, the treasurer may sue as bearer for an unincorporated association on a note payable to bearer. Tibbetts v. Blood, 21 Barb. (N. Y.) 650

659 Golder v. Foss, 43 Me. 364.

660 Ogilby v. Wallace, 2 Hall (N. Y.) 553.

6612 Daniel, Neg. Inst. 228; 2 Pars. Notes & B. 437; Wells v. Schoonover, 9 Heisk. (Tenn.) 805.

€62 Greer v. Woolfolk, 60 Ga. 623; Williams v. Jones, 79 Ala. 119. But not

sue either as executor or in his own name as bearer. 663 And even a foreign administrator may sue as bearer. 664 So, the manager of an insolvent bank may sue as trustee for stockholders under a blank indorsement to the bank.665 Or suit may be brought in the name of any holder under such blank indorsement, where the bank is in the hands of a receiver. But a mere depositary, having no title or authority to sue, cannot bring suit upon a bill, even though it is payable to bearer. 667

666

Action by "Party in Interest."

§ 1651. An action must be brought in the name of the lawful holder and owner of the paper, except where the statute authorizes suit by a trustee or otherwise.668 But, where the statute requires suit to be brought by "the real party in interest," the plaintiff must show himself to be such, and mere legal title is not sufficient.669 Where the plaintiff, however, declares himself expressly as legal owner, and this is not denied in the pleadings, the defendant cannot afterwards set up that the note was not indorsed to him or owned by him.670 And he cannot, in his plea, admit an assignment to the plaintiff, and deny his title, without special averment of facts tending to call it in queswithout the pledgee's consent. Alabama Terminal & Improvement Co. v. Knox, 115 Ala. 567, 21 South. 495.

663 Brooks v. Floyd, 2 McCord (S. C.) 364; Crosthwait v. Misener, 13 Bush (Ky.) 543; Ricard v. Harrison, 19 La. Ann. 181.

664 Robinson v. Crandall, 9 Wend. (N. Y.) 425; Barrett v. Barrett, 8 Me. 353. 665 Law v. Parnell, 7 C. B. (N. S.) 282.

666 Baker v. Stinchfield, 57 Me. 363.

667 2 Daniel, Neg. Inst. 219; 2 Pars. Notes & B. 444; Sherwood v. Roys, 14 Pick. (Mass.) 172.

668 2 Daniel, Neg. Inst. 230; 2 Edw. Bills & N. § 923. And the defendant may show that the plaintiff had no title. Lockwood v. Underwood, 16 Hun (N. Y.) 592; Waggoner v. Colvin, 11 Wend. (N. Y.) 27; Woodsum v. Cole, 69 Cal. 142, 10 Pac. 331; Protection Ins. Co. v. Bill, 31 Conn. 534; Reynolds v. Kent, 38 Mich. 246; Osborn v. McClelland, 43 Ohio St. 284, 1 N. E. 644; Davis v. Bradley, 26 La. Ann. 555.

And an

669 Parker v. Totten, 10 How. Prac. (N. Y.) 233. But an equitable title is sufficient, Seattle Nat. Bank v. Emmons, 16 Wash. 585, 48 Pac. 262, and the want of it, a defense, Bacon v. Scott, 154 Pa. St. 250, 26 Atl. 422. indorsee "for collection" may sue. Elmquist v. Markoe, 45 Minn. 305, 47 N. W. 970; Lehman v. Press (Iowa) 76 N. W. 818.

670 Manegold v. Dulau, 30 Wis. 541.

tion.671 Where there are rival suits pending, however, the defendant may have an interpleader, and will be liable only to the party actually entitled as holder. 672

The holder of a bill is prima facie the party in interest,673 although he holds under an indorsement from the payee, with an agreement that nothing shall be paid by him until collected.674 And where an owner brings suit, and it appears that the note is held by a bank for collection, with the right to apply the proceeds upon a debt against the owner, a finding by the jury of legal title in the plaintiff will not be disturbed by the court, although it implies a conclusion of law. 675 Under the Missouri Code the holder of a nonnegotiable note may sue in his own name as the real party in interest.676 And, where the payee sues on a nonnegotiable note which is lost, he will be presumed to be the owner.677 One of several joint owners cannot, however, bring suit without joining the others, although the note is in his possession, and payable to bearer. 678

But, where a note is payable nominally to a bank, the actual owner may bring suit upon it in the name of such payee,679 or he may sue as assignee of the original payee, even without his knowledge or consent.680 And, in the absence of a statute to the contrary, the owner

671 Swift v. Ellsworth, 10 Ind. 205. And the answer must show in whom the real title is. Elder v. Smith, 16 Ind. 466. But the maker cannot question the payee's title as party in interest. Blacker v. Dunbar, 108 Ind. 217, 9 N. E. 104; Johnson v. Conklin, 119 Ind. 109, 21 N. E. 462.

672 Rohrer v. Turrill, 4 Minn. 407 (Gil. 309).

673 Willard v. Moies, 30 Mo. 142, although the protest was made for another bank, Kunkel v. Spooner, 9 Md. 462.

€74 Cummings v. Morris, 25 N. Y. 625.

675 Prescott v. Leonard, 32 Kan. 142, 4 Pac. 172.

676 Bennett v. Pound, 28 Mo. 598.

677 Price v. Dunlap, 5 Cal. 483.

678 McNamee v. Carpenter, 56 Iowa, 276, 9 N. W. 218.

€79 President, etc., of Bank of Chenango v. Hyde, 4 Cow. (N. Y.) 567; Tucker v. Tucker, 119 Mass. 81; Moore v. Penn, 5 Ala. 135; or even in his own name, treating the payee as fictitious, In re Pendleton Hardware & Implement Co., 24 Or. 330, 33 Pac. 544. Thus, the indorser who takes up a note at maturity may bring suit in the name of his indorsee. Bank of America v. Senior, 11 R. I. 376. But in South Carolina the payee of a sealed note cannot sue in his own name for the use of an equitable owner. Sullivan v. Hellams, 6 S. C. 184.

eso Gage v. Kendall, 15 Wend. (N. Y.) 640.

RAND.C.P.-148

(2353)

may bring suit on a bill or note in the name of any third person,**1 or in a fictitious name.682

Transfer Pending Suit.

§ 1652. If the plaintiff transfers the bill after commencing suit, his suit will abate. 683 And mere delivery to another after suit brought, under blank indorsement made to the plaintiff, will have the same effect, although he agrees with the new holder to continue the suit for his benefit. But if he makes a transfer with the defendant's consent, and with a power of attorney to the indorsee to continue the suit for his own benefit, the defendant will be estopped from objecting to its continuance.685 So, if an intermediate indorser takes up a note after suit brought against the maker by his indorsee, the suit may continue for his use.686

On the other hand, an indorsee without notice of any pending suit may bring a fresh action in his own name,687 although it has been held that an indorsee with notice could not do so.688

681 Patten v. Moses, 49 Me. 255; Demuth v. Cutler, 50 Me. 298; Golder v. Foss, 43 Me. 364. And he may show that a former suit was brought for convenience in a collecting agent's name, and was afterwards discontinued. Hatters' Bank v. Phillips, 38 N. Y. 128.

682 Epting v. Jones, 47 Ga. 622.

683 Lee v. Jilson, 9 Conn. 94; Hall v. Gentry, 1 A. K. Marsh. (Ky.) 555; although retransferred to him before trial, Vila v. Weston, 33 Conn. 42. But an answer denying that the defendant holds any such note as that mentioned in the declaration only puts in issue his title at the beginning of the suit. Allen v. Newberry, 8 Iowa, 65.

684 Curtis v. Bemis, 26 Conn. 1. But in Texas the suit may be amended and continued for the benefit of the assignee. Dowell v. Mills, 32 Tex. 440. And parol evidence is admissible in Connecticut to show that a purchase, and not a payment, was intended, although by a stranger, and made for an indorser of the note, and the action may in such case continue for his benefit. Comstock v. Savage, 27 Conn. 184.

685 Central Bank v. Curtis, 26 Conn. 533.

686 Ticonic Nat. Bank v. Bagley, 68 Me. 249.

87 Colombies v. Slim, 2 Chit. 637. And the pendency of a prior action begun by his indorser will be no defense against him. Deuters v. Townsend, 5 Best. & S. 613.

688 Benj. Chalm. Dig. art. 135; Chit. Bills, 256; Marsh v. Newell, 1 Taunt. 109.