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McHenry v. Ridgely.

ton.

WILLIAM THOMAS, for the appellee.
Wilson, Chief Justice, delivered the opinion of the Court:

This was an action by petition and summons, by Ridgely against McHenry, upon the following note: 16 h 400.

Jacksonville, Nov. 4th, 1836. On or before the sixteenth day of July next, I promise to pay E. W. Palmer or order, four hundred dollars, for value received. Witness my hand and seal.

“GEORGE McHENRY, (SEAL.] ” On which are the following assignments: “For value received, I assign the within note to T. Worthing

E. W. PALMER. Dec. 12th, 1836." Pay to N. H. Ridgely, Esq., Cashier, or order.

“ T. WORTHINGTON.” The defendant pleaded three pleas in bar, alleging, in substance, First, That the note sued on was assigned to the President, Directors, and Company of the State Bank of Illinois, in the name of N. H. Ridgely, Esq., cashier of said bank, according to the usages of the bank, and that the legal and beneficial interest was, by said assignment, vested in the bank. Secondly, That the note is the property of the bank, and that the plaintiff has no interest in it. Thirdly, That the note is the property of the bank, and was assigned to the plaintiff, Ridgely, as its cashier, according to the custom and usage of the bank; and that Ridgely is merely the agent of the bank, without any property in the note sued on. To these pleas a demurrer was interposed by the plaintiff, and sustained by the Court. This decision is assigned for error.

It is true, as a general proposition, that a corporation may not only sue in its own name, but, when its rights are asserted, it must sue in its corporate name; but the authorities upon this point, and those referred to relative to the obligation of the principal, or the one beneficially interested in the suit, are not applicable to the present case. The law is well settled, that where a note is payable to bearer, or is endorsed in blank, a suit may be maintained in the name of any person, who is the holder of the note, without his being required to show an interest in it, unless he possesses the note under suspicious circumstances; and if the question of mala fide possessio, which is one of fact, to be submitted to the jury, is not raised by the defendant, the Court will not enquire into the rights of the plaintiff, but will consider possession of the note as evidence of property. That no injustice may result from this rule, it is also settled, that, when the plaintiff on the record is a mere trustee for another, the defendant may avail himself of any defence, which he might set

Olney o. Myers.

In one,

up against the real owner of the instrument, provided the action had been brought in his name. (1)

The pleas of the defendant in this case neither raise the question of mala fide possessio in the plaintiff, nor do they set up any defence to the action, against the bank. The decision on the demurrer to them was, therefore, in accordance with the general rules adverted to; and is also sustained by several cases directly in point.

“ where a note was assigned to W. N., cashier of the Farmers' Bank," it was decided, that a suit was properly brought in the name of W. N., and not of the bank, though it was for their benefit, for the assignment was made to him individually, and not to the corporation. (2) So it has been decided, “ that the mayor and commonalty cannot sue on a bond made to the mayor himself in his own proper name, though he was also styled mayor.” (3)

The doctrine is also laid down by Chancellor Kent, and seems to be fully settled by the numerous authorities to which he refers, that blank endorsments may be filled up at any time by the holder, even down to the moment of trial, in a suit brought by him as endorsee, for the purpose of pointing out the person to whom the bill or note is payable; and also that a note endorsed in blank, is like one payable to bearer, and passes by delivery, and the holder may constitute himself or any other person assignee thereof; and the Court will not enquire whether he sues for himself, or as trustee for some other person. (4)

The judgment of the Court below is affirmed with costs.
Judgment affirmed.

Note. See Kyle 0. Thompson et al., Post; Campbell o. Humphries, Post.

Hiram Olney, appellant, v. DeWit Myers, a minor,

who sues by his next friend, REUBEN Massey, appellee.

Appeal from Will.

In an action by a minor for work, labor, and services, proof that the services were

performed under an indenture of apprenticeship, is a good bar 10 the action ; and a deposition of witnesses, proving the execution of such indenlure by the minor and his father, is admissible in evidence. The voluntary performance of services by a minor, under an indenture of appren.

ticeship, though rendered out of the State, where, by the indenture, they were to have been rendered, would not entitle the plaintiff to remuneration therefor.

(1) 7 Cowen 177; 3 Johns. Cases 263; 11 Johns. 53.
(2) 1 Tuck. Com. 155; 4 Rand. Rep. 359.
(3) i Tuck. Com. 155.
(4) 3 Kent. Com. 89, and the authorities there cited.

Olney v. Myers.

This cause was heard in the Court below at the September term, 1838, before the Hon. John Pearson and a jury. Verdict and judgment were rendered for the plaintiff for $ 100. The defendant appealed to this Court.

J. M. WILSON, J. C. NEWKIRK, and Justin BUTTERFIELD, for the appellant.

J. Y. SCAmmon and W. A. BOARDMAN, for the appellee.
Smith, Justice, delivered the opinion of the Court :(1)

This was an action for work, labor, and services. The declaration is in the usual form, with money counts.

The defendant pleaded non assumpsit, and gave notice that he would prove at the trial, that the work, labor, and services mentioned in the plaintiff's declaration, and alleged to have been performed by the plaintiff for the defendant, were rendered under a certain indenture of apprenticeship, a copy of which is set out in the notice.

On the trial, the defendant offered to give in evidence the depositions of certain witnesses, taken by virtue of a Dedimus sued out and duly executed, to prove the due execution of the indenture by Myers, the plaintiff, with the assent of his father. The testimony offered is set forth in the bill of exceptions, and most clearly proves the due execution of the indenture by the plaintiff and his father. We are at a loss, from the proceedings as they appear in the record, to conceive upon what ground the Circuit Court rejected the depositions. The evidence was certainly pertinent to the facts in issue, and directly established the defence set up. The time of service specified in the indenture had not expired, even at the commencement of the suit; and as the place of the execution of the indenture and performance of the services to be rendered, does not appear to have been out of this State, we do not perceive upon what ground the evidence was rejected.

If the services were to have been performed in another State, and the plaintiff had been brought here, and an attempt had been made to compel bim to perform the service in this State, and he had done so against his free consent, that fact should have been shown in avoidance of the obligation of the indenture ; but until that was done, the exclusion of the proof of the due execution of the indenture, was evidently erroneous.

The voluntary performance of the services in the indenture specified to be performed, though rendered out of the State where by the indenture they were to have been rendered by the plaintiff

, would not entitle the plaintiff to remuneration therefor.

Let the judgment be reversed, and the cause remanded, with instructions to the Circuit Court to award a venire de novo. The appellant will recover his costs.

Judgment reversed.

(1) Wilson, Chief Justice, was not present at the argument of this cause.

McConnel o. Thomas.

MURRAY McConnel, appellant, v. William THOMAS,

appellee.

3

313 90a 2 61

3 313 93a 1405

Appeal from Morgan.

28 313 211 2104,

An action may be maintained by W., in his individual name, on a note paya.

ble to “ W., school commissioner, and agent for the inhabitants of the county, &c. ;” and such suit may be brought by petition and summons; and no averment is necessary to enable the plaintiff to recover the rate of interest specified

in the note. Interest is regarded as an incident to the debt; and is given in the form of dam

ages, without being specially claimed in the declaration.

This suit was commenced by the following petition :

“ State of Illinois, Morgan Circuit, sct. William Thomas, plaintiff, states that he holds a note on the defendant, Murray McConnel, in substance as followeth :- One year after date, we, William D. Anderson, Joseph Wasson, and Murray McConnel, jointly and severally, promise to pay William Thomas, school commissioner and agent for the inhabitants of the county of Morgan, for the use of the inhabitants of township number fifteen, north, of range number eleven west, the sum of twenty-five dollars, and interest thereon at the rate of thirty per cent. per annum, from this date, until paid ; and in case a judgment shall be obtained against us, or either of us, upon this note, we promise to pay interest on the judgment at the rate aforesaid, until such judgment shall be fully paid and satisfied. We further promise, that in case additional security for the payment of the aforesaid sum of money and interest, or any part thereof, shall be required, the same shall be given to the satisfaction of the said William Thomas, or successor in office. Witness our hands and seals, this 12th day of March, 1832.

his
· William D. ANDERSON, (L. s.]

mark.
Joseph WASSON,

[L. S.) M. MCCONNEL,

[L. S.] “ Yet the same debt remains unpaid, wherefore he prays judgment for his debt, and damages for the detention of the same, together with his costs, &c.

“ Thomas & Brown, for plaintiff.” The defendant pleaded two pleas. The first averred, that the promise was made to the plaintiff only as the agent of the inhabitants of the county of Morgan, and for the use of the inhabitants of the particular township, and that the plaintiff, in his individual right, had no interest whatever in the promises, or in the money when collected, and that the consideration for the promises moved from the inhabitants, and not from the plaintiff. The second crav

40

VOL. II.

McConnel . Thomas.

ed

oyer of the note, and alleged that the note and the promises were made to the inhabitants of the township, by the name, style, and description of William Thomas, school commissioner and agent, &c., and not to this plaintiff, in his private right; and that the legal interest in said note, and the money when collected, at the commencement of this suit, were in the inhabitants of said township ; and that the said plaintiff had not any interest, either legally or equitably, in said note or money, or any part thereof.

M. McCONNEL, for the appellant, cited Piggot v. Thompson, 3 Bos. & Pul. 147 ; 3 Kent Com. 97 ; 10 Johns. 224 ; 5 Mass. 491 ; Gilmore v. Pope, 10 Johns. 387 ; Gunn v. Cantine, 13 Johns. 38; 1 Chipman 295 ; Arlington v. Hines, Ibid. 431 ; 1 Chit. Plead. 3, 4. There is no difference between public and private agents, as to their right to sue. Rathbone v. Budlong, 15 Johns. 1 ; i Chit. Plead. 98; Pool v. Cohen, 6 Monroe 336; Kincade v. Higgins, 1 Bibb 352.

W. Thomas, for the appellee. Wilson, Chief Justice, delivered the opinion of the Court: This is a proceeding by petition and summons, instituted by William Thomas, the plaintiff below, against Murray McConnel, upon a note made by McConnel to William Thomas, school commissioner and agent for the inhabitants of Morgan county, for the use of the inhabitants of said county.

The note bears interest at the rate of thirty per cent. per annum, and judgment was rendered by the Court below in favor of the plaintiff, for the principal and interest of the note, agreeably to its terms. From this decision the defendant below has appealed; and from the proceedings had in the case, two questions arise for the decision of this Court : first, whether the action was properly brought in the name of Thomas, the payee of the note, as was held by the Court below; and secondly, whether judgment for the interest due, was correctly rendered.

The first point in this case must be regarded as settled in this Court, by the case of McHenry v. Ridgely, (1) decided at the present term. That case is not distinguishable in principle from this. The action there was brought in the individual name and character of Nicholas H. Ridgley, upon a note assigned to Nicholas H. Ridgley, Cashier, or order, and the same defence was set up in that case that is in the present one, that is, that the plaintiff had no property or interest in the note, that he was a mere agent, &c. &c. But the Court decided the action to be properly brought in the name of the assignee; and this decision is fully sustained by the authorities referred to. Kent lays down the law as fully settled, that “ If a bill be made payable to A. for the use of

(1) Ante 309.

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