Hunt v. Stewart

COLLIER, C. J. — In Pitts v. Keyser, 1 Stewt. Rep. 182, the plaintiff declared on a promissory note on which he was the payee, but on adducing it as evidence to the jury, it appeared that he had made an indorsement thereon in full, to a third person. The defendant objected that the right of action was in the indorsee, but the Court refused thus to instruct the jury. This Court affirmed the judgment,saying that it would be pre 527 sumed that the property in the paper was in the payee, although it had been indorsed to another person; that it would be intended that the indorsement was made to facilitate the collection, or some such purpose, and the note had been returned without the object being effected. But this presumption, like all others, might be rebutted by proof, and if it should be made to appear by evidence, that the property was really in the indorsee, the plaintiff could not recover. In Johnson, use of Stone, v. English, Id. 169, the Court cite with approbation its previous decision, and say, that if the payee bring an action in his own name on paper indorsed by him, for the use of the indorsee, the form in which the suit is brought is an acknowledgment that the latter is the proprietor of the note, and shows that the indorser cannot sue for the recovery of the money due thereon. [See also Dugan v. The U. S. 3 Wheat. Rep. 182; Welch v. Lindo, 7 Cranch’s Rep. 159; Burdick v. Green, 15 Johns. Rep. 247; Hartwell v. McBeth, 1 Har. Rep. 363; Perkins v. Catlin, 11 Conn. Rep. 213; U. S. v. Barker, Paine’s Rep. 156; Picquet v. Curtis, 1 Sumner’s Rep. 480; 1 Dall. Rep. 193; 2 Id. 147; 1 Yeates’ Rep. 99 ; 4 Johns. Rep. 31; Bowie, use of Ladd, v. Duvall, 1 G. & Johns. Rep. 175.] But it is insisted by the plaintiff that the indorsement purports to be made by Irvine P. Hunt, and the payee has no middle name. We think it must be intended that an indorsement on a bill, purporting to transfer it, is prima facie genuine. [Blair v. Pollock, 6 Litt. Rep. 208.] The fact that the plaintiff’s name appears in the body of the note, as well as in the writ and declaration without the initial P. cannot be allowed to control the rule, which maintains that the insertion or omission of a middle name, is not a misnomer. If the payee and indorser are different persons it was easy to have shown it, and it was incumbent upon the plaintiff to countervail the presumption that such was the fact, by evidence. The suit then being brought in the payee’s name, (as'we must suppose,) for the use of the indorsee, cannot be supported. It was certainly an unusual practice for the Court to have ordered a nonsuit after the cause was put to the jury; if the evidence was insufficient to entitle the plaintiff to recover, the verdict should have been against him. The bill of exceptions sets out all the proof adduced by the plaintiff, without stating 528 that he had other testimony in reserve. It is clear from what has been already said, that he failed to make out his case, and the Court would have been authorized to instruct the jury to find against him ; and the jury could not without a disregard or a taisapprehension of duty, have refused to do so. This being the case, the plaintiff is not prejudiced, and if the point was res integra, we might be inclined to consider the nonsuit as a mere irregularity, which will not avail on error; but it was holden by our predecessors at a very early day, that it was not allowable for a Court unless directed by statute to order the plaintiff to be nonsuit. They say, “ if the plaintiff refuses to submit to a nonsuit, and insists that the jury shall render a verdict, the Court has no power to direct a nonsuit, and cannot enforce its opinion otherwise than by instructions to the jury, and by awarding a new trial, if the verdict be contrary to the charge.” [Smith, Adm’r, v. Seaton, Minor’s Rep. 75.] The plaintiff insists upon a verdict whenever he puts his case to a jury, and does not consent to a withdrawal. Upon the authority of the case last cited, the judgment is reversed and the cause remanded.