McMillan v. Croft

Mr. Justice Wheelee delivered the opinion of tbe court. Tbe appellee sued the appellant upon a note made by tbe latter, payable to tbe former. There are in tbe note no words of negotiability, and there is no indorsement upon it. At tbe spring term, 1845, of tbe district court, the defendant answered; and at the fall term thereafter, repeated in substance the same answer; containing a general denial, and specially denying tbe interest of the plaintiff in tbe note sued on; averring that the plaintiff bad availed himself of the bankrupt law of tbe United States, “whereby the note aforesaid, if any such existed, has become the property of a certain assignee in bankruptcy, whose name is unknown to this defendant, and whereby the plaintiff has no right to sue.” To this answer he annexed interrogatories calling on the plaintiff to answer, 1st. • Whether he had ever availed himself of the bankrupt law of the United States. 2d. Whether he had surrendered the note to any person. 3d. Whether by the law of the United States he was required to make such surrender; and 4th. Whether the note in question belonged to any ■person other than the plaintiff. This special plea and the annexed interrogatories appear to have been filed but two days before the trial. At the instance ■of the plaintiff they were stricken out and the'cause proceeded to trial. The defendant excepted to the ruling of the court in ■striking out the plea and interrogatories; and this exception •brings up the only question presented by the record. In Thompson v. Cartwright, a case in which I did not sit, ■decided at the present term, it was held that “ the mere naked fact of the plaintiff not being the real owner of the note would not be matter of defense.” The case of Farr v. Gomez, 9 Wend. 653, is- there cited, in which it was said that “ if the holder of a note or bill is discharged under the insolvent act, [399] no interest or right in the securities passes to his assignees;: and the holder may continue an action at law previously commenced, for the recovery thereof, in his own name, or bring w new suit without reference to the assignees.” The legal title to the note, in the case before us, appears to have been in the plaintiff, and we have no doubt that he was the proper person to maintain the action, whoever may have been the beneficiary or equitable owner of the note. It was said by this court in the case referred to, the note itself showed the right of the plaintiff to sue, and the inquiry whether there was an equitable ownership in another was not essential to the rights of the defendant, unless there was some matter of defense subsisting between himself and such equitable owner of which, in the present case, there is no pretense. The judge did not err, therefore, in regarding that part of the answer and the interrogatories stricken out by him as being irrelevant and impertinent, and as constituting no gronnd of defense to the action. But we are of opinion that the interrogatories were properly stricken out for another reason. They were not propounded at the term of the court when the defendant first answered, nor until the very eve of the trial, and this delay does not appear to have been in any manner explained or accounted for. We do not intend to be understood as deciding that the judge may not, in his discretion, under such circumstances, permita party to propound interrogatories to the opposite party, where the latter could be in no way prejudiced by his having so long deferred the exercise of this right; or that it would not be the duty of the court to permit the interrogatories to be propounded, where the delay was satisfactorily accounted for, and the exercise of this right seemed necessary to ascertain the rights of the parties and attain the justice of the case. But this, like every -other right secured to the party, ought to be exercised without prejudice to others, and must be asserted within a convenient and reasonable time. And if not so asserted, or the delay be not satisfactorily accounted for, it should be regarded as waived, and the party should not then be permitted to avail himself of his interrogatories, especially where 400401 his doing so would operate a continuance of the cause, or otherwise prejudice the opposite party. . We are of opinion that there is no error in the judgment, and that it he affirmed.