Marr v. Plummer , 3 Me. 73 ( 1824 )

Mellen C. J.

delivered the opinion of the Court at the ensuing term at Jlugusta.

By the report it appears that the note in question was duly indorsed by the payee in blank, and afterwards put in suit in the name of the plaintiff, by the special direction of the authorized agent of the payee; — and that though the plaintiff was absent when the action was commenced, he was present when it was tried, — maintaining it in person, and claiming an interest in the note. It is urged that the note was never delivered to the plaintiff, and so no interest vested in him prior to the commencement of the action. A formal delivery was not necessary. It is true the suit was instituted without the plaintiff’s knowledge; but there is no proof that it was done with any corrupt or improper motive; and as the plaintiff pursued the action, claiming the benefit of it, this sanctions it from the beginning, and it therefore is not open to objection by the defendant on this account.

We do not perceive any weight in the circumstance of the payee’s embarrassment, or the want of proof of the plaintiff’s having paid a full consideration for it. In an action founded on a note payable to bearer, the plaintiff is not holden, except in suspicious cases, to prove how he came to the possession of it. The possession and production of it in court, is prima facie proof of his title to it. Chitty on Bills, 51. In an action by an indorsee against the maker of a promissory note, the plaintiff has only to prove the handwriting of the promissor, when formally denied, and the handwriting of the indorser. On these facts he is entitled to recover, without proving or even alleging in the declaration that the indorsement was made for a valuable consideration. This is a fact of no importance to the maker, unless he has a defence which would be. good as between him and the promissor only, and not against an indorsee for a valuable consideration, without notice. See Little v. O’Brien 9 Mass. 423. 3 Cranch 208. Chitty on Bills 51, 59, 60, 63. 175 in notis. Tyler v. Binney 7 Mass. 479. Bowman v. Wood 15 Mass. 534. Lovell v. Everton 11 Johns. 52.

It seems that' the defendant was permitted to introduce proof for the purpose of impeaching the note on the alleged ground of fraud, as fully as though the action had been in the name of the original promissee; but he failed in the attempt. After this we do not perceive any reason for him to complain. The judgment in this action will protect him against any other on the note; and the plaintiff’s discharge of the judgment will be good and effectual. The motion to set aside the verdict is overruled, and there must be judgment thereon for the plaintiff.