Bradford v. Bucknam , 12 Me. 15 ( 1835 )

Weston C. J.

delivered the opinion of the Court.

The objection taken to the right of the plaintiff to recover, is not founded on the merits of the case. The defendant interposes the rights of a third party, which have ceased to exist, and to whom he can never be held answerable. But with e'very disposition to sustain the action, we are unable to discover any legal ground, which would justify it, at the time it was brought. It should be authorized by a party, having a legal interest in the note. Such party, upon a negotiable note, with a blank indorsement, may sue in his own name, or in the name of any other person, with his consent. And it has been holden, that it will be sufficient, if such consent be subsequently obtained. Marr v. Plummer, 3 Greenl. 73. There the agent of the holder and owner of the note, who was the payee and had indorsed it, ordered the suit to be brought in the name of her son, who though ignorant of it at the time, afterwards approved of what was done.

In Fisher v. Bradford, 7 Greenl. 28, Bice, who was payee and indorser of a note, agreed that it should be regarded as the property of the plaintiff, and it was holden that he had a right to sustain the action, notwithstanding the note had then been pledged by Bice to a third party, the pledge having been redeemed, and the note procured before trial. In each of these cases the suit was ordered by the party, who was the general owner of the note. It was otherwise here. The plaintiffs had negotiated the note, for a full consideration, and had thereby ceased to have any interest in it, or control over it. Mosher v. Allen, 16 Mass. 453. And they acquired no title to it, until a subsequent period. The suit was not brought by the Maine Bank, the holders of the note, or by their privity or consent, or by any person acting for them, or in their behalf. /Upon these facts, the action being prematurely-brought, cannot be supported.

Plaintiffs nonsuit.