Quinn v. Fuller , 61 Mass. 224 ( 1851 )

Dewey, J.

There would be no doubt, if this action was instituted in the name of Carley, that the defence that it was a mere accommodation note executed by the defendant at the instance of Carley, would be a good defence. The further inquiry is, whether this defence would be equally good, in a suit by Carley and his copartner Clapp, as the note was received by the copartnership before maturity. We are satisfied that such must be the effect. As one of the parties, who must have been a plaintiff, if the action had been brought for the firm, is shown to have no right to recover, his co-plaintiff and partner is affected with notice of the want of consideration, and want of equity as to Carley, and the action wholly fails. Chit. Bills, (10th Amer. ed.) 70; Sparrow v. Chisman, 9 B. & C. 241. It being agreed that the note was indorsed after it became due, and was in the hands of Carley & Clapp at maturity, the plaintiff is subject to the like defence, as if the action had been instituted in the names of Carley & Clapp. New trial ordered.