Ayres v. McConnel et al. to the opinions and proceedings of the Court below, but it will not be necessary to notice more than two of them. The first is that the Court proceeded to try and render judgment in the cause, without any declaration having been filed against the defendant. The law and the rules of practice in relation to the action of ejectment, are too well settled to require argument or authority to prove that the Court erred in trying the cause without a declaration against the defendant. The next error assigned is, that the Court erred in excluding from the jury as evidence, the deed from Thomas Arnett to the county commissioners of Morgan county. The only reason assigned by the Court for excluding this deed from being read in evidence, was the insufficiency of the certificate of the acknowledgment of its execution. The validity of this objection will depend upon the certificate itself, and also the law regulating the making and certifying of deeds, in force at the time this was made. First, then, what did the law of 1819 (which is the law governing this case) prescribe in relation to the acknowledgment of the execution of deeds. This law authorizes judges, county commissioners, and justices of the peace, to take the acknowledgment of deeds, but it does not require acknowledgment to be taken and certified in any prescribed form, except it be the acknowledgment of a married woman, when the object is to transfer her right of dower. The certificate of the justice, in this case, would seem, therefore, to be quite as full and exact as was contemplated by the law. It is in these words : "State of Illinois, Morgan County, March, 1825. "This day personally appeared Thomas Arnett and his wife, Caycah, before me, James Deaton, one of the acting justices of the peace for said county, and acknowledged the due execution of the within to be their free act and deed, for the within purposes therein named. Given under my hand and seal, day and date above written. JAMES DEATON, J. P. [SEAL.]" Had this deed been offered in evidence to prove the transfer of the wife's dower, it would have been properly rejected, because the certificate of acknowledgment is neither in form nor substance, such as the law prescribes in such a case. But as the deed was offered to be read only as the deed of Arnett, it should have been received. The certificate of the justice is as full and as formal, as the law under which it was made, required. The judgment is reversed with costs. McHenry v. Ridgely. GEORGE MCHENRY, appellant, v. NICHOLAS H. RIDGE- Appeal from Morgan. Upon a note endorsed to "N. H. Ridgely, cashier," a suit may be maintained by THIS cause was heard in the Court below at the March term, 1838, before the Hon. Jesse B. Thomas. Judgment was rendered for the plaintiff for $400 debt, and $ 16,93 damages. The defendant appealed to this Court. M. LESLIE and H. B. MCCLURE, for the appellant: 1. The Law Merchant not having been adopted in this State, the relation of parties to negotiable paper is the same as in common parol contracts. Breese 16. 2. Every contract made with an agent in relation to the business of the agency, is a contract with the principal, and the agent is not bound, and cannot maintain an action on such contract. 352; 4 Greenleaf 82; 2 Espinasse N. P. 567. 12 Vesey 3. A mere agent or attorney, not having any beneficial interest in a contract, cannot maintain an action upon it in his own name. 10 Johns. 387. 4. A party who receives a note endorsed over to him as a mere agent of the payees, to collect the same for them, cannot maintain a suit. 10 Johns. 225. 5. In an action by the endorsee of a note, against the immediate endorser, a plea that, before the commencement of the suit, the plaintiff transferred the note to a third person, who since then had been and continued to be the true and lawful owner and possessor of the note, is a bar to a recovery. 11 Wend. 27. 6. If it appear, by proof or admission, that the agent to whom a negotiable note is endorsed for the benefit of his principal, has no interest in the note, he cannot sue and recover upon it in his own name. 3 Kent. Com. 79; 5 Mason. 3 309 44a 155 3 309 93a 1405 McHenry v. Ridgely. 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: "400. "On or before the sixteenth E. W. Palmer or order, four Witness my hand and seal. ton. Jacksonville, Nov. 4th, 1836. day of July next, I promise to pay hundred dollars, for value received. "GEORGE MCHENRY, [SEAL.]" On which are the following assignments: "For value received, I assign the within note to T. Worthing "Dec. 12th, 1836." E. W. PALMER. "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 v. Myers. 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. In one, "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. Note. See Kyle v. Thompson et al., Post; Campbell v. 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 to the action; and a deposition of witnesses, proving the execution of such indenture by the minor and his father, is admissible in evidence. The voluntary performance of services by a minor, under an indenture of apprenticeship, 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) 1 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 him 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. |