Stone v. Hubbard

Bigelow, J. The testimony of the witnesses, offered as experts in handwriting, was rightly admitted. The rule is well settled, that when the characters in which a paper is written are obscure and difficult to be deciphered, the evidence of persons, whom practice and experience in examining writing have made skilful, is competent for the purpose of aiding the court or jury in arriving at a true reading of the document. Wigram on Wills, (3d ed.) 12, 188, 196; Masters v. Masters, 1 P. Wms. 425; Norman v. Morrell, 4 Ves. 769; Sheldon v. Benham, 4 Hill, 129. And see Armstrong v. Burrows, 6 Watts, 268. The question whether this action can be maintained in the name of the present plaintiff, the payee of the note in suit, upon the facts disclosed at the trial, has been substantially determined by previous decisions of this court. Hodges v. Holland, 19 Pick. 43; Sigourney v. Severy, 4 Cush. 176; Drury v. Vannevar, 5 Cush. 442. The last case, being in many respects similar to the case at bar, is a very strong authority in favor of the maintenance of this action. The principle on which these decisions rest is, that the purchaser of the note has a right to recover all that is due upon it; that the rights of the promisor cannot be in any way prejudiced by a suit in the name of the payee, and if the latter does not interpose and object, the mode of enforcing the contract is wholly immaterial to the defendant, and constitutes no valid ground of defence. In the case at bar, by the purchase from the assignee, the owner acquired all the property of the payee and of his assignee in the note and its proceeds, and a right to enforce its payment in the name of some one. The assignee, having received it without indorsement and having sold and transferred it by delivery only, the purchaser cannot maintain an action on it in his own name. It may be that a suit could be brought upon it in the name of the assignee; but of this we [598] express no opinion. See Drury v. Vannevar, ubi sup. It is upon its face like an ordinary chose in action, which can be enforced only in the name of the assignor; and we can see no technical objection to a suit in the name of the payee, upon these facts. There is no variance between the declaration and proof. The promise was originally to the payee or his order, and the note, never having been indorsed, on its face is still payable only to the plaintiff. The promise is directly to the party who sues. The rights of the defendant are wholly unaffected by an action brought in the name of the plaintiff, instead of being in the name of the assignee or purchaser. Indeed, the suit could not stand more favorably for the defendant. Every ground of defence, even the right of set-off, is open to him in a suit in the name of the payee. Rev. Sts. c. 96, §§ 1-11; Clark v. Parker, 4 Cush. 361, 365. A recovery in this action would be a good bar to any other suit upon the note, as the payee, his assignee and the owner of the note would be alike concluded by the judgment. We are aware of the English authorities, in which it has been held, that after bankruptcy an action cannot be maintained in the name of the bankrupt, upon a contract made with him before bankruptcy, and that the assignee only has power to enforce such claims by suits in his own name. But these decisions were founded on the peculiar language of the act of 6 Geo. 4, c. 16, § 63, by which the assignees are not only expressly empowered to bring suit in their own names to recover debts due the bankrupt, but it is further provided that, after the assignment, “ neither the bankrupt, nor any person claiming through or under him, shall have power to recover the same.” There are no such negative words in our insolvent laws. And the earlier English decisions on this point are in effect overruled by the decision of the court of exchequer chamber, reversing the judgment of the court of queen’s bench, in Herbert v. Sayer, 5 Ad. & El. N. R. 965, 974. The effect of an objection by the payee to a suit in his name, in a case like the present, we have not considered, because in this case no such objection was interposed. Exceptions overruled.