5 Wend. 257 | N.Y. Sup. Ct. | 1830
By the Court,
The holder of negotiable paper can maintain an action on it in his own name without showing title to it. The court will not inquire into his right to the paper, or to maintain a suit on it, unless circumstances appear shewing his possession to be mala fide. The facts in this case do not warrant such a suggestion. The plaintiff has not only the possession, but an interest, if not the entire property in the notes. There cannot therefore be any well founded objection to sustaining the suit in his name.
The new promise relied on to avoid the operation of the statute was conditional. When called on in 1824 for payment, the defendant said it was an honest debt, and he would pay it when he got able. The testimony as to his ability is, that he was reputed at the time of the trial, to be a man of handsome property, and amply able to pay the notes. On a motion for a nonsuit, on the ground that the ability of the defendant was not proved, the circuit judge declared that fact was sufficiently made out, and charged the jury to find a verdict for the plaintiff. It is to be observed, that the testimony was not withdrawn from the jury, but was in fact submitted to them, although accompanied with a positive expression of opinion that it was sufficient to establish the condition which rendered the new promise effective. The judge viewed the testimony correctly; it well warranted the verdict. We cannot, therefore, interfere with the finding of the jury on that ground. If the sufficiency of the evidence to establish the ability of the defendant to pay could be questioned—if the testimony on this point had been contradictory, the party might have had reason to complain that the judge had thrown the weight of his decided opinion into the scale against him.
The new promise was made whilst the notes were the property of the payee; and the principal question in this cause is
Motion for new trial denied.