Pearce v. Austin

The opinion of the Court was delivered by Rogers, J. —

A protest, not being necessary in a suit against the drawer, no legal inference can be drawn from an omission to do what the law does not require. There is nothing, therefore, in the first objection.

The suit was brought to recover the amount due on a promissory note, drawn by John Pearce, the defendant, payable sixty days after date, to the order of'John Houghtin. It was endorsed in blank to Charles B. Austin, agent of the Union Glass Works, transferred by him to T. W. Dyott, and the suit is brought in the name of Charles B. Austin, agent of the Union Glass Works, who is the holder of the bill. The question is, can an agent bring a suit on a promissory note in his own name? This is a question, which depends altogether on authority. A holder'of negotiable paper, can maintain an action on it in his own name, without showing title to it. The Court will *491 not inquire into his right to the paper, or his right «to maintain a suit upon it, unless circumstances .appear showing his possession to be mala fide. Dean v. Hewett, ( 5 Wendell, 257 .) Talman v. Gibson, ( 1 Hall, 308 .) Livingston v. Gibson, (3 Johns. Cases, 263.)

In Ogilby v. Wallace, ( 2 Hall, 553 ,) the right to sue even by a fictitious person, when the name of the real party was disclosed, unless some question arose as to the mala fide possession, was asserted. The Court non-suited the plaintiff, on the ground that he was a fictitious person, but on an appeal the nonsuit was set aside, that the question of fact, connected withrthe possession and presentation of the note, should be submitted to a jury. This principle applies to a note payable to bearer, or endorsed in blank; for in either case an action can be maintained in the name of any person, without the plaintiff being required to show that he has any interest in it, unless he came into the possession of the note under suspicious circumstances. Here there is no allegation of mala fieles, so that the case stands clear of that objection. The suit is brought by Austin, who is a trustee or agent for the company. ' He has the legal title to the bill, and the suit is brought in the name of the legal owner. Stating that he is the agent of the Union Glass Works, is equivalent to saying that the suit is for their use. . This brings it within the principle of the cases cited. But Mauran v. Lamb, ( 7 Cow. 174 ,) is still nearer the point. It is there held, that one holding a check or note payable to bearer, as a mere agent, may sue on it in his own name, and that it does not lie with the opposite party to assert the plaintiff’s want of interest. It can certainly make no difference whether the note is payable to bearer, or endorsed in blank, and in the possession of a bona fide holder.

Judgment affirmed.