Reed v. Nevins , 38 Me. 193 ( 1854 )

Shepley, C. J.

— A party plaintiff, who has no interest in the subject matter, upon which a suit is founded, cannot maintain that suit, unless it be prosecuted at the request or by the consent of the person beneficially interested. Bradford v. Bucknam, 3 Fairf. 15; Brag v. Greenleaf, 14 Maine, 395; Ballard v. Greenbush, 24 Maine, 336; Foster v. Dow, 29 Maine, 442.

A judgment was recovered by the plaintiff against Nevins, who appears to have been arrested by virtue of an execution issued on that judgment, and to have executed the bond, upon which this action has been commenced, with the other defendant as his surety, to obtain his discharge from that arrest. The bond bears date on November 12, 1849. The plaintiff, on November 1, 1850, made upon the back of that bond an absolute assignment under his hand and seal of all his right, title and interest in it, and in the judgment, and to all money due by virtue of it to Timothy Batchelder. Its execution must have been proved or admitted before it could have been received as evidence and made a part of the case. The plaintiff, for the purpose of proving that he had no title to or interest in that judgment, declared on oath that “ the execution and judgment above named had been assigned to Timothy Batchelder,” and “ that there was no agreement with Batchelder to account to him for any thing he received more than sufficient to pay what he owed him.” To deny that the assignment was made perfect by delivery or acceptance by Batchelder, would amount to an accusation that the plaintiff was guilty of swearing falsely. The plaintiff could not revoke o.r annul that assignment, by writing a revocation across it, without the consent of his assignee. Such consent is not only not proved; it is negatived by the language used to revoke the assignment. The plaintiff by that language alleges, that the assignment was not delivered, contrary to what must have been proved or admitted; and that he had received no consideration for it, contrary to his written admission contained in the assignment, that he had. There is now no proof offered, that the assignment was not delivered, or that a valuable consideration was not paid. This suit cannot be maintained without proof that it is prosecuted at the request, or by the consent of the .assignee. There is no such proof. Any presumption of the kind is negatived by the attempted revocation. If the plaintiff could maintain this suit, recover a judgment and collect it, he could effectually deprive his assignee of all benefit to be derived from the assignment, and thus accomplish his attempted purpose to revoke it. Plaintiff nonsuit.

Tenney, Rice, Appleton and Cutting, J. J., concurred.