49 Vt. 361 | Vt. | 1877
The opinion of the court was delivered by
This is an action brought by the plaintiff as the bearer of a note executed by the defendant to the Wardens and Vestry of Christ Church, Hampton, or bearer. No question is made as to the execution of the note, nor as to defendant’s liability to pay it, but it is insisted that the payee of the note was a corporation at the time the note was executed, but that since the execution of the note, and before it passed into the hands of this plaintiff, said corporation, not keeping up its organization, had become extinct, and therefore that plaintiff cannot be the lawful holder of said note, and entitled to maintain this action.
That the lawful holder of a negotiable note payable to bearer may maintain an action thereon in his own name, is too well settled to admit of question. It is not necessary that he should have the legal title to it, nor any interest in it. If he has the possession, the presumption is that his possession is lawful, and he recovers for the benefit of whoever has the legal title, unless it is clearly made tq appear that his possession is unlawful'.
The evidence of the defendant put into the case, tended to show that this note was in the hands of the corporation as late as 1871 or 1872; that it was then in the hands of Thompson, of Granville, N. Y., as the attorney of the corporation. The fair presumption would be, that it was placed iu his hands for collection by competent authority. For aught that appears, this suit was instigated by Thompson, and brought in the uame of the plaintiff iu this state, as a matter of convenience, or for any other cause. The legal title may have been iu Thompson, and by him transferred to the plaintiff. It is quite as reasonable to suppose any of these things, as to infer that the plaintiff obtained this note surreptitiously, from the naked fact that said corporation had become extinct. We think the Gmnty Court was right in holding that the facts proved were not sufficient to prevent the plaintiff’s recovery.
But it is urged that the plaintiff is not entitled to maintain this suit against this defendant, because the note on which he seeks to recover was executed by the defendant jointly with one Albert A. Lawrence, who is not made a party to the suit. This objection should have been taken advantage of, if at all, by a plea in abatement. The general rule that the non-joinder of a defendant can be taken advantage of only by plea in abatement, is elementary. This was expressly decided in McGregor v. Balch, 17 Vt. 562, That was scire facias upon a recognizance against two of four joint recognizors. The general issue was pleaded, and on trial it was claimed that there was a fatal variance between the declaration and the proof. The Supreme Court held that the non-joinder could not be taken advantage of under the general issue. Judge Redfield says: “ The rule and the reason for it seem to us to be the same, whether the declaration be upon a contract of record, ur upon any other written contract, as, a bill, note, or bond; and in all those cases, it is well settled that the
There are many other decisions substantially to the same effect in this state.
Judgment affirmed.