Lee v. Jilson

There were several issues joined to the court. One of those issues was, that the plaintiff had assigned, transferred and indorsed the note in question, after the institution of the suit, and before the return of the writ, to Stedman &].Gor*104don of Hartford. This issue was found in favour of the defendants. The other issues were found in favour of the plaintiff. Of these issues it becomes unnecessary Us sperm, ns the judge at the circuit reserved, for the consideration of this Court, only the question, whether that fact being so, the plaintiff could recover. If he could not, then judgment was to be entered up for the defendants. Hence the only question for decision is, whether after a transfer by indorsement in full of a negotiable note, the promisee can maintain an action thereon, in his own name, instituted before the indorsement. The principles of law are all one way on this question. The action must be commenced and sustained by him who has the legal interest. If he parts with his interest, by indorsement, he ceases to be capable of pursuing an action already brought, in the same manner and to the same extent, as he was incapable of commencing it, for this very satisfactory reason, that he ceases to have any legal interest in the suit. It is very clear, then, that this suit connot be sustained. What might be the effect of circumstances attending the assignment, such as an agreement on the part of the assignee, that the suit should be prosecuted in the name of the payee, no such circumstances exist in the case under consideration. The fact is found, that the note was assigned and indorsed in full to Stedman & Gordon; and it is impossible, therefore, for the plaintiff, who has parted with the whole legal and equitable interest in the suit, further to maintain it. Munsel v. Sanford, 1 Root 257. 1 Swift’s Dig. 430. 1 Chilt. Plead. 4 — 10. Thatcher v. Winslow, 5 Masons Rep. 58.

Judgment, therefore, is to be entered up for the defendants.

Judgment to be for defendants.