7 Ala. 525 | Ala. | 1845
— 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
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