ness is generally otherwise, and a theory about commercial affairs opposed to commercial practice cannot be otherwise than injurious and impracticable.

§ 1189a. Cases of agent's name used by adoption for principal's. It is undoubtedly a matter of daily practice to make notes, drafts, acceptances, and indorsements payable to the cashiers or treasurers of financial institutions by such abbreviations as, "to J. Smith, Cas.," or "J. S., Cash.," or "Cashier," or "Treas." When the corporation sues on such a paper, it is upon the theory and averment that it was made payable to it by the name of the official; and the production of the instrument in its possession is sufficient prima facie evidence to sustain its suit.

A distinction has been taken in some cases, to the effect that a bill or note payable to an agent or officer of a company not incorporated may be sued in his name; but if the company be incorporated its own name must be used.62

allow the Bank of the United States, or any one else, without his order, to demand and enforce payment of it by suit." But a different view prevails in the State courts of Vermont. Rutland, etc., R. Co. v. Cole, 24 Vt. 38. It was held in the following cases that the agent alone could sue: Horah v. Long, 4 Dev. & Bat. 274, where the note was payable to "W. H. H., cashier, or order;" Rose v. Laffan, 2 Speers, 424, the note being payable to “A. G. Rose, Cashier;" so where the notes ran "to W. G., Treasurer of Third Parish in Dedham," Fisher v. Ellis, 3 Pick. 322; to "The Treasurer of the Proprietors of the new meeting-house in N., or his successor in office," Clap v. Day, 2 Greenl. 305. In Van Ness v. Forrest, 8 Cranch, 30, where a commercial company, consisting of four or five hundred members, sold merchandise, the property of the company, and took from the purchaser his note for the purchase money, payable to Joseph Forrest, president of the company, it was held that suit should be brought in the name of the promisee against the maker of the note and his dormant partner, notwithstanding such dormant partner was also a partner of the commercial company. And it was said by Marshall, C. J.: "Suit can be brought only in the name of Joseph Forrest. It can no more be brought in the name of the company than if it had been given to a person not a member, for the benefit of the company. The legal title is in Joseph Forrest, who recovers the money in his own name, as a trustee for the company. Upon the record, and technically speaking, he is the sole plaintiff, and the court can perceive no reasonable or legal objection to his sustaining an action on the note." See also Harrow v. Dugan, 6 Dana, 341; McConnell v. Thomas, 2 Scam. 313; Ramsey v. Anderson, 1 McMull. 300; 2 Parsons on Notes and Bills, 451; Shuey v. Adair, 18 Wash. 188, 51 Pac. 388, 63 Am. St. Rep. 879.

62. Southern Life Ins., etc., Co. v. Gray, 3 Fla. 262; McConnel v. Thomas, 2 Scam. 313; § 1188; Lookout Bank v. Aull, 93 Tenn. 645, 27 S. W. 1014, 42 Am. St. Rep. 934, citing text.

The like principle applies when the instrument is payable to the official agent of a State or country; and the State or country may sue upon it in its own name. It has been so held where the instruments were payable "to Levi Woodbury, Secretary of the United States, or his successors in office;" 63 to "T. T. Tucker, Treasurer of the U. S., or order;" to "James Irish, Land Agent of Maine." 65

SECTION III.

WHO MAY SUE UPON INSTRUMENTS PAYABLE TO ONE PARTY AND DISCOUNTED BY ANOTHER.

§ 1190. A nice question is presented when a note made to raise money is expressed as payable to a certain bank, and is then discounted by another party, the bank named as payee never having any interest in it. Thus suppose the "Cheshire Bank” is named as payee, and A. B. discounts the note, it has been held that in such case the plaintiff may declare upon the note as payable to him by the name of the Cheshire Bank.66 It has also been held that suit might be brought in the name of the payee for the benefit of the holder. Should the payee expressly consent, or impliedly by receiving the note for the person advaneing the money, his name might be used;67 but otherwise we cannot see how a mere stranger can be unwillingly brought into a controversy to which he has no proper legal relation, and it has been held that if the payee refuse the use of his name, it cannot be used.68 Some cases utterly deny the right to use the payee's name, even with his consent.69

Where an accommodation note is made payable and negotiable at a particular bank, it has been held that when not discounted

63. United States v. Boice, 2 McLean, 352. 64. Dugan v. United States, 3 Wheat. 172. 65. State of Maine v. Boies, 2 Fairf. 474. See chapter XIV, § 443, vol. I. 66. Hunt v. Aldrich, 7 Fost. 31; Elliott v. Abbot, 12 N. H. 549; Meeker v. Shanks, 112 Ind. 210, citing the text. Quære, if holder might not sue in equity in his own name. See Taylor v. Reese, 44 Miss. 89.

67. Bank of Chenango v. Hyde, 4 Cow. 567; Bank of Newbury v. Rand, 38 N. H. 169; Lime Rock Bank v. Macomber, 29 Me. 564; Granite Bank v. Ellis, 43 Me. 367; Utica Bank v. Ganson, 10 Wend. 314; Farmers & Mechanics' Bank v. Humphrey, 36 Vt. 557. See also Bank of Rutland v. Buck, 5 Wend. 66; Powell v. Waters, 17 Johns. 176; Marvin v. McCallum, 23 Johns. 288. 68. Bank of Middlebury v. Bingham, 33 Vt. 623.

69. Adams Bank v. Jones, 16 Pick. 574.

by it, but by another person, the latter acquires no right of action against the accommodation party, who must be taken to have limited the right of negotiation to the particular bank, and he cannot sue even in its name.' But the better opinion seems to be that this would not be such a diversion of the paper as to discharge the accommodation parties."

70

71

When a note payable to a third person has not been negotiated by him, but is in the hands of another, who sues in the payee's name, it seems that it is prima facie evidence of an equitable assignment by the payee to the holder, which carries authority to use his name.72

SECTION IV.

WHO MAY SUE UPON INSTRUMENTS PAYABLE TO BEARER OR INDORSED IN BLANK.

§ 1191. The law is now too well settled to admit of longer controversy that an action on a bill or note payable to bearer, or indorsed in blank, may be maintained in the name of the nominal holder who is not the owner by the owner's consent; and that possession by such nominal holder is prima facie sufficient evidence of his right to sue, and cannot be rebutted by proof, that he has no beneficial interest, or by anything else but proof of mala fides.73 And, as has been said in Maryland, by Chambers,

70. Dewey v. Cochran, 4 Jones L. (N. C.) 184; Clinton Bank v. Ayres, 16 Ohio, 282. See Dixon v. Dixon, 31 Vt. 450; Quinn v. Hard, 43 Vt. 375.

71. Utica Bank v. Ganson, 10 Wend. 315; Commercial Bank v. Claiborne, 5 How. (Miss.) 301; Briggs v. Boyd, 37 Vt. 534; Farmers, etc., Bank v. Humphrey, 36 Vt. 557.

72. Harriman v. Hill, 14 Me. 127.

73. Demuth v. Cutler, 50 Me. 300; Patten v. Moses, 49 Me. 255; Rubelman v. MeNichol, 13 Mo. App. 584. This rule will not apply where the holder is one of two or more joint owners. McNamee v. Carpenter, 56 Iowa, 276; Roberts v. Snow (Nebr.), 43 N. W. 241, citing the text; Bitzer v. Wager (Mich.), 47 N. W. 210; Mars v. Mars, 27 S. C. 133. But in Alabama a written indorsement or assignment is necessary to pass the legal title to a note payable to bearer so as to enable the holder to maintain suit thereon in his own name. Cobb v. Bryant, 86 Ala. 316; Manufacturers' Nat. Bank v. Thompson, 129 Mass. 438; Wheeler v. Johnson, 97 Mass. 39; Craig v. Twomey, 14 Gray, 486; Palmer v. Nassau Bank, 78 Ill. 380; Ticonic Nat. Bank v. Bagley, 68 Me. 249; Scionneaux v. Wagnerpack, 32 La. Ann. 288; Klein v. Buckner, 30 La. Ann. 680; McCallum v. Driggs, 35 Fla. 277, 17 So. 407, approving text; Threadgill v. Commissioners, 116 N. C. 616, 21 S. E. 425, furnishes an exception to the general rule stated in the text; Meadowcraft et al. v. Walsh, 15 Mont.

") 74

J.: "Courts will never inquire whether a plaintiff sues for himself or as trustee for another, nor into the right of possession, unless in an allegation of mala fides, and the blank indorsement may be filled up at the, moment of trial.” If it were shown that the plaintiff, upon suing upon a note payable to bearer or indorsed in blank, has no interest in it, and in addition that he is suing against the will of the party beneficially interested, he could not recover, as his conduct would be in bad faith.75

§ 1192. Nominal holder may sue.- It matters not that such nominal holder will receive the amount as trustee,' 76 77 agent, or pledgee.78 The suit by him holding the paper shows his title to recover; and it cannot matter to the defendant who discharges the debt that the plaintiff is accountable over to a third party. Thus where the plaintiffs had bought a bill for a correspondent, and had been reimbursed the amount paid, Wightman, J., said: "They have been reimbursed, and the beneficial interest has been transferred, but the legal interest is in them, and they may still sue as trustee." 79 Evidence, however, that the plaintiff has no interest in the instrument will be competent when foundation has been laid for its introduction by offer to prove offset, or other defense, available against a third person who is its true owner."

80

544, 39 Pac. 914; Krueger v. Klinger, 10 Tex. Civ. App. 576, 30 S. W. 1087; Keller v. Alexander, 24 Tex. Civ. App. 186, 58 S. W. 637; Brennan v. Brennan, 122 Cal. 440, 68 Am. St. Rep. 46.

74. Whiteford v. Burckmyer, 1 Gill, 127; Seeley v. Wickstrom, 49 Nebr. 730, 68 N. W. 1017; Scribner v. Hanke, 116 Cal. 613, 48 Pac. 714; Illinois Conference v. Plagge, 177 Ill. 431, 53 N. E. 76, 69 Am. St. Rep. 252.

75. Tonne v. Wason, 128 Mass. 517. See Reynolds v. Kent, 38 Mich. 248; Eggan v. Briggs, 23 Kan. 710; Alabama Terminal & Improvement Co. v. Knox, 115 Ala. 567, 21 So. 495.

76. Nicolay v. Fritschle, 40 Mo. 67; Lovell v. Evertson, 11 Johns. 52; Wells v. Schoonover, 9 Heisk. 805; Jenkins v. Sherman, 77 Miss. 884, 28 So. 726; Toby v. Railroad Co., 98 Cal. 490, 33 Pac. 550.

77. King v. Fleece, 7 Heisk. 274; Gregory v. McNealy, 12 Fla. 378; Boyd v. Corbitt, 37 Mich. 52; Klein v. Buckner, 30 La. Ann. (part 1) 680; § 1181. See Willison v. Smith, 52 Mo. App. 133.

78. Bowman v. Wood, 15 Mass. 534; Bank of Charleston v. Chambers, 11 Rich. 657; Whitteker v. Charleston Gas Co., 16 W. Va. 717; Tarbell v. Sturtevant, 26 Vt. 513; Logan v. Cassell, 88 Pa. St. 288.

79. Poirier v. Morris, 2 El. & Bl. 89; McPherson v. Weston, 64 Cal. 275; Seeley v. Wickstrom, 49 Nebr. 730, 68 N. W. 1017; Banister v. Kenton, 46 Mo. App. 462.

80. Logan v. Cassell, 88 Pa. St. 290; Lenneg v. Blummer, 88 Pa. St. 515; Bank of Piedmont v. Smith, 119 Ala. 57, 24 So. 589.

And if the indorsement be expressed "for collection," it has been held that the indorsee is not such a holder as may sue.' 81

§ 1192a. In England it has been held that if the plaintiff has neither an interest in the bill or note, or right of possession at the time of suit brought, he cannot maintain the suit.82 But an agent being in lawful possession of the bill or note under a blank indorsement, may maintain suit.83

84

An indorsement by the payee in blank will not affect his right to sue upon a note payable to his order, while it remains in his hands; nor will the fact that he has stricken out a special indorsement to himself, thereby rendering it an indorsement in blank, alter his title and consequent right to sue."

§ 1192b. In a recent New York case, where the holder of a note under a blank indorsement of the payee sued makers and indorser of the note, and defendants pleaded that the note was not the property of the plaintiff, that the same was never trans

81. Rock County Nat. Bank v. Hollister, 21 Minn. 385. But see contra, Johnson v. Hollensworth, 48 Mich. 143; Wilson v. Tolson, 79 Ga. 137; Cummings v. Kohn, 12 Mo. App. 585; Roberts v. Parrish, 17 Oreg. 589; Roberts V. Snow (Nebr.), 43 N. W. 241.

82. Emmett v. Tattenham, 8 Exch. 884 (1853). In this case W. held a bil under a blank indorsement. W.'s executor requested E. to sue in his own name; but never delivered to him the bill until after suit brought, although a copy had been taken for E.'s use, and it was understood that E. could get the bill when he wanted it. It was held that this did not constitute a constructive delivery, and Pollock, C. B., said: "The case falls within the simple proposition that a person who has no interest in, or possession of, a bill of exchange cannot maintain an action on the instrument." The American cases upholding this doctrine, and those to the contrary, are cited in 1 Ames on Bills and Notes, 319 et seq., to which excellent work reference is made. It may be that holder may ratify so as to sustain suit by bearer brought without consent. See Hovey v. Sebring, 24 Mich. 232; Ticonic Bank v. Bagley, 68 Me. 249.

83. In Law v. Parnell, 7 C. B. (N. S.) 282 (1859), Erle, C. J., said: "The bill being indorsed in blank the bank had a right to hand it over to a third person to sue upon it, without indorsing it; and therefore the plaintiff, if he was the lawful holder of the bill, and had authority from the bank to do so, had a perfect right to sue upon it. In the case of Emmett v. Tattenham, 8 Exch. 884, the plaintiff was not indorsee, neither had he possession of the bill. He had no interest in the bill." See cases cited in 1 Ames on Bills and Notes, 323, 324; Coy v. Stiner, 53 Mich. 42.

84. Kerrick v. Stevens, 58 Mich. 297; Consolidated Nat. Bank v. Hayes, 112 Cal. 75, 44 Pac. 469.

85. Minor v. Bewick, 55 Mich. 491.