Gage v. Johnson , 20 Me. 437 ( 1841 )

The opinion of the Court was by

Weston C. J.

Authorities have been cited; and others might be found, tending to establish the position, that to maintain an action upon a bill of exchange, or a negotiable note, the plaintiff must have some interest therein ; and if this is disproved, the action cannot be maintained. But the law has been otherwise understood in Massachusetts and in this State. And it has been held sufficient, if the nominal plaintiff has assented to the suit, and it has been authorized by the party in interest. Brigham v. Marean, 7 Pick. 40; Marr v. Plummer, 3 Greenl. 73.

The plaintiff being,in fact the bearer of the note, having a right to control it, and having an interest in it, as administratrix, might, upon the authority of those cases, cause an action to be brought upon it, in the name of any person who would give his consent thereto. It results, that if she thought proper, she might sue in her own name, as well as in her capacity of administratrix. When the suit was brought, she had not taken out letters of administration. But she has since ; and this, by relation, legalizes all her acts, in relation to the goods and credits committed to her, from the decease of the intestate. Rattoon v. Overacker, 8 Johns. 126; Shillaber v. Wyman, 15 Mass. R. 322, and the note appended to that case.

Exceptions overruled.