Parsons v. Brown , 50 N.H. 484 ( 1871 )

Smith, J.

Section 18, chapter 19, Gen. Statutes, provides that all actions, petitions, appeals, and prosecutions, in all civil cases, shall be commenced, entei’ed, and prosecuted in the supreme court for the several judicial districts of the counties of Grafton and Coos, in the same manner they would be if each of said districts was a distinct county. Section 1, chapter 201, Gen. Statutes, provides that transitory actions, in which both parties are inhabitants .of the State, may be brought in the county of which either party is an inhabitant, and not elsewhere.

In Eames v. Carlisle, 3 N. H. 130 (p. 131),. the court said, “ as this provision in the statute was intended to remedy an existing mischief, and to relieve defendants from the vexation of being wantonly sued in distant counties; we are inclined to think it ought to be construed liberally * * The same views were expressed by Parsons, C. J., in Day v. Jackson, 5 Mass. 237 (p. 239), relative to a similar statute in Massachusetts.

The defendant’s counsel is correct in his position that the plaintiff, by his demurrer, “ admits that neither of the real parties to the action resides in the district where the suit is brought; and that the nominal plaintiff, who resides in that district, has no interest in or control of the causes of action in this suit; and that the notes sued upon were indorsed by the real plaintiffs for the sole purpose of bringing this action in the name of the nominal plaintiff of record in a district where the real plaintiffs themselves could not bring it, because the court would have no jurisdiction to try it; that, in short, Hezekiah Parsons, the nominal plaintiff of record, is but a representative of the two firms of R. P. Kent, Son & Co. and Kent & Cobleigh, who both reside and do business in the same district with the defendant.”

This is evidently an attempt to evade the plain object of the statute.

The plaintiff relies upon the long established practice of instituting suits on notes in the name of nominal parties to whom they have been indorsed for that purpose. This practice has, however, been sanctioned by the courts only on condition that the bringing of suits in this manner shall hot be allowed to operate to the substantial prejudice of defendants. Wherever it is necessary for the protection of a defendant’s rights, the court will inquire who the real plaintiff is, and will give a nominal plaintiff no advantage to which the real party in interest would not have been entitled. In Edgerton v. Brackett, 11 N. H. 218 (pp. 221, 222), Parker, C. J-, speaking of the practice relied on by the plaintiff, said : “We are not disposed to give any encouragement to this course, where it is resorted to for the purpose of rendering it less easy for the defendant to make his defence. Where such is the purpose, the practice is undoubtedly reprehensible * * * Other authorities

might be cited, from which we may fairly infer that it is allowable to a defendant to object to the maintenance of a suit in the name of a nominal indorsee where the indorsement to the nominal plaintiff was in bad faith and the maintenance of the suit would work some prejudice to, the defendant. See Marcy, J., in Dean v. Hewit, 5 Wendell 257 (p. 261); Nelson, C. J., in Guernsey v. Burns, 25 Wendell 411 (p. 412); 2 Parsons on Notes and Bills 437. Both these grounds of objection exist in the present case. In the language of' the defendent’s counsel: “ The objection is not simply to allowing a suit to be brought in the name of a nominal party, who never had any interest in it, but to allowing it to be brought in that way for the express purpose of avoiding the plain requirements of the statute. To say that the statute does not apply to actions upon negotiable paper, because in that case the contract is to pay the payee or his order, in no answer to this objection, for the objection is not to the suit being brought in the name of some nominal party to whom the. real plaintiff may order the note to be paid, but to bringing it in the name of the nominal party in a county where the real party could not bring it.”

Maxfield’s Lessee v. Levy, 4 Dallas 330, S. C. 2 Dallas 381, was an action of ejectment in the circuit court of the U. S. for the district of Pa. The lessor of the plaintiff was a citizen of Maryland. The defendant was a citizen of Pennsylvania. It appeared that the conveyance of the premises in controversy to the lessor of the plaintiff was made by a citizen of Pennsylvania for no other purpose than to give jurisdiction to the circuit court, and was without consideration. The court dismissed the action, holding that such an “ entirely colorable and collusive ” conveyance was “ incapable of laying a foundation for the jurisdiction of the court.”

If the authority of Maxfield’s Lessee v. Levy was somewhat shaken by Briggs v. French, 2 Sumner 251 (p. 257), it seems fully restored by Jones v. League, 18 Howard U. S. 77.

Demurrer overruled.