Norton v. Downer

The opinion of the court was delivered by Redfield, J. The objection to the plaintiff’s claim, that the note was originally executed by all the defendants, as a partnership, and made payable to one of the firm, Horace W. Dana, who endorsed the note to the plaintiff, is merely technical; and although avoidable, at law, while the note remained in the hands of the payee, as it created an insurmountable defect of legal parties, as the same person cannot be both plaintiff and defendant — we think, is whol [571] ]y removed by the negociation of the note. The same view has been taken of this matter by the courts in other states. Pitcher v. Barrows, 17 Pick. 361; Nevins v. Townsend6 Conn. R. 5; Smith v. Lusher, 8 Cow. 688. This is really the only question which properly arises on the bill of exceptions, being the only one decided by the court, below. As this ended the case, all other questions were properly removed from the consideration of the court below, and are not, strictly, before this court. We have, however, not found any ground of doubt, that the note and endorsement, does, prima facie, show a good cause of action in the plaintiff. It is not for us to presume, or to conjecture, that this note was given as a receipt for .the portion of capital invested by the payee in the concern. And what avail such proof, if offered by the defendants, should have, if any, it is not, now, necessary to consider. Judgment reversed, and a new trial granted.