Baker v. Stinchfield

Walton J. This is an action of assumpsit on two promissory-notes, and is before tlie law court on report. “ If the action cannot be maintained in the name of the plaintiff,” he is to be non-suited ; “ but if it can be maintained in the name of the plaintiff^ and the defendant cannot prove his account in set-off on so much of the evidence as is legally admissible, the defendant is to he defaulted; hut if lie can go into evidence of his account in set-off, the action is to stand for trial.” The report is very brief, and the meaning not very clear. But we think there can he no# doubt that the plaintiff is entitled to judgment. The notes declared on, having been indorsed by the payees, became payable to bearer, and were transferable by delivery. The plaintiff has them in liis possession, and is prima fade the owner of them. The evidence tends to show that he holds them for collection merely, and that the suit is being prosecuted for the benefit of tlie creditors of'the American bank, “at the request and by tlie authority of the receivers ” thereof. Butthis.evidence, if true, constitutes no defense. It is now well settled, that an action on notes like these may be commenced in the name of any one who will consent to have his name thus used. We think, therefore, there is no force in the objection that the action cannot be maintained in tlie plaintiff’s name. We think it can. And we think the defendant cannot be allowed to prove his ac~ count in set-off. It is the identical account filed in set-off in an. [364] action by the American Bank against him. This is evident when the two accounts are compared. One is a substantial copy of the other. The defendant offered to show that the items claimed in this account were not passed upon in the former suit; but we do not understand him to deny, that there was a trial in the former suit. Nor do we understand him to deny that he introduced evidence at that trial in support of his account, and that the case was submitted to a jury and a verdict returned. If we understand the report, what the defendant desired to do, was to show that in fact, the jury did not allow all of his account. This the law would not allow him to do. If he offered evidence in support of it, and the question of allowance or disallowance was submitted to the jury, and they acted upon it, he is precluded from again offering proof in support of the same account in another suit, although the jury may have decided not to allow it. • Defendant defaulted. J. Baker, pro se. A. Cf. Stinchfiéld, pro se. Appleton, C. J.; Cutting, Danporti-i, and Tapley, JJ., concurred.