8 Conn. 286 | Conn. | 1830
The general question raised upon this record, is, whether the plaintiffs can maintain an action on the note set forth in their declaration.
The note, after expressing the consideration on which it is founded, is made payable to Joseph Martin, Matthew Smith and
1. Is the note, according to the laws and settled practice of this state, a specialty, or in the nature of a specialty? Whether a note of hand, expressed to be for value received, stands on the same ground, in Connecticut, as an instrument under seal, absolutely importing a consideration, is a question not necessarily involved in the decision of this case. I purposely avoid expressing any opinion on the point. It is sufficient, that so far as regards the form of action, and the mode of declaring, notes not negotiable, have ever, in this state, been treated as specialties. They have been, uniformly, declared on with a profert, in the same manner as instruments under seal. Slocum v. Sanford, 2 Conn. Rep. 533. 535. Swift's Ev. 339. 1 Swift’s Dig. 429. This being so, the action should be brought in the name of the person having the legal title. Anderson v. Martindale, 1 East, 497. Scott v. Godwin, 1 Bos. & Pull. 67. Dawes v. Peck, 8 Term Rep. 332. Sanford v. Sanford, 2 Day 559. 1 Chitt. Plead. 4.
2. In whom, then, is the legal interest of this note ? This is, clearly, in the trustees ; although the beneficial interest may be in the society. To them it was made payable. Had the note been negotiable, they alone could have indorsed it; and they alone are authorized to sue.
I am, therefore, of opinion, that the present action cannot be maintained; and that there is nothing erroneous in the judgment of the superior court.
Judgment affirmed.
