"or his successors. 99 729 So, it has been held that a town may bring suit upon a note payable to "A. B., town treasurer, or his successor," or that the payee may sue individually on a note describing him as "school commissioner and agent of the town." 731

99 730

§ 1658. Where the note is made payable to a factor or agent in his individual name, he may, in general, bring suit in that name, although he is a mere trustee.732 And the action will not abate by reason of the death of the principal before judgment.733 But an agent who takes up a note for an indorser cannot sue his principal as indorser, although he paid for it with his own money.734 One who holds a note as agent for collection may, unless it is otherwise provided by statute, bring suit on it in his own name,735 whether he holds the paper as "bearer," 736 or by an indorsement in blank,737 or expressly "for collection.” 738

729 Clap v. Day, 2 Me. 305, where the action was by the payee; Taintor v. Winter, 53 Me. 348, where the action was brought by his successor. And A., B., and C. may sue in their own names on a note payable to them "and their successors, trustees of the N. M. Academy." Binney v. Plumley, 5 Vt. 500. On the other hand, the successor in office is the proper plaintiff where the note is payable to the treasurer of the company, without naming him. McDonald v. Laughlin, 74 Me. 480. And see § 156, supra.

730 Town of Arlington v. Hinds, 1 D. Chip. (Vt.) 431.

731 McConnel v. Thomas, 3 Ill. 313.

732 Smith v. Burton, 3 Vt. 233; Ridgely Nat. Bank v. Patton, 109 III. 479; Minnesota Thresher Mfg. Co. v. Heipler, 49 Minn. 395, 52 N. W. 33; especially where he has credited the principal with the note and surrendered security held by him, Fish v. Jacobsohn, 2 Abb. Dec. (N. Y.) 132, 5 Bosw. (N. Y.) 514; or has paid the principal the amount due upon it, Coy v. Stiner, 53 Mich. 42, 18 N. W. 552; and although the statute requires the action to be brought by the real party in interest, Stoll v. Sheldon, 13 Neb. 207, 13 N. W. 201.

733 Royce v. Barnes, 11 Metc. (Mass.) 276.

734 Dodge v. Brown, 113 Mass. 323.

735 Regina Flour-Mills Co. v. Holmes, 156 Mass. 11, 30 N. E. 176; Wintermute v. Torrent, 83 Mich. 555, 47 N. W. 358; Watkins v. Plummer, 93 Mich. 215, 53 N. W. 165; Carpenter v. Cummings, 18 Misc. Rep. 587, 42 N. Y. Supp. 239. And he is the party in interest, within the meaning of the Missouri Code, Webb v. Morgan, 14 Mo. 429; Cummings v. Kohn, 12 Mo. App. 585; although he sues "to the use of" the principal, Beattie v. Lett, 28 Mo. 596.

736 Pettee v. Prout, 3 Gray (Mass.) 502; Gregory v. McNealy, 12 Fla. 578; Moore v. Penn, 5 Ala. 135.

787 Beekman v. Wilson, 9 Metc. (Mass.) 434; Irwin v. Bailey, 8 Biss. 523, 138 Boyd y. Corbitt, 37 Mich. 52.

742

The authority to sue may even be conferred by the principal after the suit is begun.739 The agent cannot sue, however, after payment to him has been countermanded,740 or his authority expressly revoked.741 And in general an action brought by an agent is subject. to any defense that would be available against the principal."* In some of the United States, however, it is held that a mere collecting agent has no such interest in a bill or note in his hands for collection as is necessary to support an action upon it." But a distinction is made, even in such states, where the collecting agent is to look to the proceeds of the paper for the expenses of collection, and becomes a party in interest by assuming the risk of such expenses.7**

743

Action by Trustee.

§ 1659. The payee named in a note or indorsement may bring suit on it in his own name, although he holds it as trustee for another,7

745

Fed. Cas. No. 7,079; Sterling v. Trading Co., 11 Serg. & R. (Pa.) 179; King v.. Fleece, 7 Heisk. (Tenn.) 273; Woollen v. Vankirk, 61 Ind. 497. So, although the note was indorsed to him to collect without express power of suit, and he was indebted to the indorsee. Adams v. Oakes, 6 Car. & P. 70.

739 Whether the suit is brought in the name of the principal, Ancona v. Marks, 7 Hurl. & N. 686; Craig v. Twomey, 14 Gray (Mass.) 486; or of the agent. Marr v. Plummer, 3 Me. 73.

740 Barker v. Prentiss, 6 Mass. 430.

74 Southwick v. Ely, 15 N. H. 541.

742 Royce v. Barnes, 11 Metc. (Mass.) 276; Hodge v. Comly, 2 Miles (Pa.) 286; Ran v. Latham, 11 La. Ann. 276. But the mere fact that he is the general agent of the corporation will not subject him to a set-off against the corporation. Pettee v. Prout, 3 Gray (Mass.) 502.

748 Thatcher v. Winslow, 5 Mason, 58, Fed. Cas. No. 13,863; Bell v. Tilden, 16 Hun (N. Y.) 346; Iselin v. Rowlands, 30 Hun (N. Y.) 488; Rock Co. Nat. Bank v. Hollister, 21 Minn, 385; Wood v. Tyson, 13 La. Ann. 104; Nichols v. Gross, 26 Ohio St. 425. But see White v. Stanley, 29 Ohio St. 423. And before the enactment of the present statute in New York. Herrick v. Carman. 10 Johns. (N. Y.) 224; Mauran v. Lamb, 7 Cow. (N. Y.) 174. And see statutory prohibition as to attorneys in New York (Code Civ. Proc. § 873); Carpenter v. Cummings, 20 Misc. Rep. 661, 46 N. Y. Supp. 252.

744 Devol v. Barnes, 7 Hun (N. Y.) 342; Eaton v. Alger, 47 N. Y. 345; French v. Jarvis, 29 Conn. 347.

745 Smith v. Kendall, 1 Esp. 231, 6 Term R. 123; Randoll v. Bell, 1 Maule & S. 723; Nicolay v. Fritschle, 40 Mo. 67.

750

and although he is expressly named as "trustee for B.," 746 or as receiver,747 or assignee in bankruptcy," ,748 or guardian.749 So, if a note is made to A. as trustee for an unincorporated society, the action may be brought in his name without joining the other members of the society. In like manner, if notes are transferred by a corporation to A. to secure creditors, he may sue as "trustee of an express trust," under the New York statute.751 So, if the plaintiff holds a note pay. able to bearer under a bequest to him in trust for another,752 or under an agreement with a third person entitling him to half the proceeds.753 Where a bill or note is expressly payable to a trustee, the cestui que trust cannot sue upon it, although his interest as such appears in the instrument itself." 754 But the actual party in interest has been allowed to sue without indorsement, where the nominal payee was made such to secure a lien that has been satisfied, or had no interest and was named as payee by the fraud of the plaintiff's agent.756 And an acceptor may defeat the action of the nominal payee by showing that he was really a trustee for the drawer, and that the drawer has been satisfied.757

755

746 Davidson v. Elms, 67 N. C. 228. So, "A., B., trustee," Rice v. Rice, 106 Ala. 636, 17 South. 628.

747 Haxtun v. Bishop, 3 Wend. (N. Y.) 13.

748 Collier v. Barnes, 64 Ga. 484. And such words, being mere description, do not prevent bringing the suit by the payee in a state court.

749 Shepherd v. Evans, 9 Ind. 260. And the guardian should sue after the death of the ward, and not the ward's administrator. Wheelock v. Wheelock, 5 Vt. 433.

750 Bawden v. Howell, 3 Man. & G. 638; O'Brien v. Smith, 1 Black, 99. So, although the bill sued on was discounted by the society (an unincorporated bank) in its own name. Burbank v. Beach, 15 Barb. (N. Y.) 326.

751 Clark v. Titcomb, 42 Barb. 122; Nelson v. Wellington, 5 Bosw. 178. 752 Jackson v. Heath, 1 Bailey (S. C.) 355.

753 And in such case no action can be brought by the cestui que trust. Brooking v. Clarke, 2 Litt. (Ky.) 197.

754 Society of Chaplin v. Canada, 8 Conn. 286; Grist v. Backhouse, 20 N. C. 362; Linn Co. v. Holland, 12 Mo. 127. So, where a promise is made to A. to accept a bill and pay it when due, and the bill is afterwards transferred to B. as trustee, and is wrongfully destroyed by the drawee, A. cannot sue the drawee on his original promise. Jungbluth v. Way, 1 Hurl. & N. 71.

756 Bean v. Dolliff, 67 Me. 228.

756 Bank of Kansas City v. Mills, 24 Kan. 604.

757 Thompson v. Clark, 56 Pa. St. 33.

By Government-Party under Disability.

§ 1660. The government may bring suit in its own name on a bill or note belonging to it, although it is made payable to the treasurer of the United States or other public officer.758 This is true also of

759

If,

a state, and even, it has been held, of a county.760 But a note to the treasurer of a parish may be sued by him, although a subsequent indorsement by his successor in office appears on the paper.761 however, a note is given to the treasurer of a city for taxes, and the treasurer had no authority to receive it, and the city never accepted it, suit cannot be brought on it by the treasurer, although named in it as payee.762

For actions brought by or on behalf of married women, or other persons now or formerly under any legal incapacity, the reader is referred to an earlier part of this work."

763

782 Daniel, Neg. Inst. 226; 2 Pars. Notes & B. 452; U. S. v. Barker, 1 Paine, 156, Fed. Cas. No. 14,517; or to him "or his successors," U. S. v. Boice, 2 McLean, 352, Fed. Cas. No. 14,619. And the United States may sue as indorsee of a note payable "to the order of any person who should indorse." U. S. v. White, 2 Hill (N. Y.) 59. And see §§ 350, 381, supra.

759 On a note to a land agent of the state. State v. Boies, 11 Me. 474. And the agent cannot sue individually on such note. Irish v. Webster, 5 Me. 171. And a state may bring suit on a note in the courts of another state. Esley v. People of Illinois, 23 Kan. 510.

760 On bonds given to "the board of supervisors," Board of Sup'rs of Oconto Co. v. Hall, 42 Wis. 59; or upon a note payable to the use of the "state school fund," Barry Co. v. McGlothlin, 19 Mo. 307; but not on a note to G., for the use of the county, Linn Co. v. Holland, 12 Mo. 127.

761 Buck v. Merrick, 8 Allen (Mass.) 123. And the official successor of A. cannot sue in Indiana on a note payable to A., "agent for W. county, or his successor in office." Upton v. Starr, 3 Ind. 508.

762 Crowell v. Osborne, 43 N. J. Law, 335.

703 See § 278, as to infants, and §§ 299, 316, 320, as to married women. The husband may sue as bearer on a note payable to his wife or bearer. Fort v. Brunson, 2 Speer (S. C.) 658. But he cannot sue, after his wife's death, on a note made payable to her without any allegation of title in himself. Craige v. Tingle, 63 Ga. 274.

(2363)

Action against Parties Severally.

§ 1661. At common law the holder of a bill may bring several simultaneous actions against all or any of the prior parties liable to him.764 And the same party may be sued separately as indorser and as acceptor, if so liable, and the last action will not be stayed as vexatious by a court of equity.765 It has even been held that a party may be sued in one action as indorser and as executor of the maker.766 And a judgment entered against a defendant as executor of both maker and indorser will be good, although the relation of the parties is not specified in the judgment.767

Several of the United States provide by statute that the maker and indorsers may be sued separately.768 And where such actions are brought separately the plaintiff is entitled to recover costs in each case,760 and is liable for them.770 Judgment recovered against an indorser, and not satisfied, is no defense in an action brought by the same plaintiff against the maker. So, the plaintiff may recover against an indorser on an averment of judgment recovered against the maker and not satisfied.772 But he need not aver that the note has not been paid by an indorser who is not joined in the suit.773 In like manner, proceedings in bankruptcy against the acceptor of a bill

764 Byles, Bills, 411; Chit. Bills, 610; 2 Daniel, Neg. Inst. 237; 2 Pars. Notes & B. 458; Bishop v. Hayward, 4 Term R. 471; Knight v. Legh, 6 Law J. C. P. 128; Britten v. Webb, 2 Barn. & C. 483, 3 Dowl. & R. 650. 765 Wise v. Prowse, 9 Price, 393. 766 Roark v. Turner, 29 Ga. 455.

767 Woolfolk v. Kyle, 48 Ga. 419.

768 ARKANSAS (Sand. & H. Dig. § 502); KANSAS (Gen. St. c. 115, § 18); MICHIGAN (How. Ann. St. § 7352); NEBRASKA (Comp. St. § 3385); RHODE ISLAND (Gen. Laws, c. 166, § 2); TENNESSEE (Shannon's Code, §§ 3511, 4484); TEXAS (Rev. St. art. 312).

769 Austin v. Bemiss, 8 Johns. (N. Y.) 275; Whipple v. Newton, 17 Pick. (Mass.) 168.

770 Lewis v. Dalrymple, 3 Dowl. 433.

771 Russell & Erwin Mfg. Co. v. Carpenter, 5 Hun (N. Y.) 162. So, conversely, the holder may sue the indorser, notwithstanding judgment recovered against the maker. Righter v. Van Riper, 3 N. J. Law, 287.

772 Clifford v. Keating, 4 Ill. 250.

773 Page v. Snow, 18 Mo. 126.