Haven v. Hobbs

| Vt. | Jan 15, 1828

Turnee, J.

delivered the opinion of the court. This casé presents three questions. First, whether Hobb’s note was invalidated by the fact that his name was signed by the payee, at his request. Second, whether it was Void for want of consideration; and third, whether it is discharged by the receipt.

As to the first question, by the common law, the payor of a note may unquestionably bind himself by a note to which his signature is affixed by a third person at his request. The person who thus affixes the signature, is regarded not so much an agent, as an instrument used by the payor to perform the act by which he binds himself. If this act is performed by ,a bystander at the request of the payor, the latter certainly is precluded from calling it in question. Haven had no interest in this note, and affixed Hobbs’ name to it at his request; and it is impossible to perceive why the fact of Haven’s being the nominal payee, should make any difference.

As to the second question, the Consideration for this note was the discharge of a prosecution instituted by the sister of the plaintiff against the defendant, under the statute of bastardy, for the support of her bastard child, &c. The court charged the jury, in substance, that if they believed the defendant was the father of the child, the discharge of the prosecution would be a good consideration for the note; and the verdict of the jury is conclusive as to this fact. The only question on this point, therefore, is, whether she had such an interest in that prosecution that she had a right to compromise or discharge it. By the statute p¡ 366 when any single woman shall be delivered of any bastard child, or shall declare herself to be with child, and that such child is likely to be born a bastard, and shall charge any person in writing, and on oath before any justice of the peace, with being the father of the same, the justice may issue his warrant for the apprehending of the person so charged, may bind him over to the next term of the County Court; and if the County Court shall adjudge such person to be the father, to charge him “with the payment of money for the assistance of the mother, for her expenses already accrued in the premises, and for the future support of the child.” So far the statute . considers the prosecution to be exclusively the mother’s, and for her benefit. But her interest is liable to be defeated by several contingencies. The only one deemed material to be mentioned here, is, that which gives the overseers of the poor of the town, likely to be charged with the support of the child, the right to commence the prosecution, or to control and manage the same, when.commenced by the mother, if they shalljudge the interest of the town to require it. This they are authorized to do on certain terms and conditions prescribed by the statute, on the performance of which,they are to have “all the benefits of this act to which the woman would be entitled.” Had the town interfered with the prosecution instituted by the , mother, the defendant should have shown it; but of this there is , no pretence. And it is therefore regarded by the court as subject to her control.

Jt. B. Bates, for plaintiff. Linsley and Waller, and S. S. Phelps, for defendant.

Third, It is admitted by the-case, that the note, though running to the plaintiff, was taken for the sole benefit of the sister, and left in her hands to be paid to her. If the pay was made to the plaintiff, it was in violation of her equitable interest, and contrary to the express understanding of all concerned in the transaction. This court have repeatedly decided to protect equitable interests ; nor is there any case known which would require us to give effect to a collusive understanding between the plaintiff and defendant in violation of the rights of a third person.

Judgment of the County Court is affirmed.