Hodge v. Comly

2 Miles 286

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: March 30, 1839
• Status: Published

Opinion

The opinion of the court was delivered by

Stroud, J.—

Two facts are averred in the affidavit of defence, which, taken together, require the rule for judgment in this case to be discharged. The first is, that the bills of exchange which have been filed as cause of action, are not the property of the plaintiff, but belong to Hodge, Oxnai'd & Co. And secondly, that a set-off in favour of the defendant exists against Hodge, Oxnard, & Co., equal in amount, or nearly so, to the debt claimed on the bills.

It is indisputably true, as has been argued for the plaintiff, that an action may be maintained on a bill of exchange by a party who has no interest in the bill, provided he has obtained the possession of it bona fide, and is suing without objection from the real owner. In such case, the law regards him as a trustee for the owner, and will not suffer the defendant to urge this relation as an obstacle to recovery. Mauran v. Lamb, 7 Cowen 174; Heydon v. Thompson, 28 E. C. L. R. 76, per Patterson, J.; Whitaker v. Edmunds, ibid. 171; Gage v. Kendall, 15 Wendell 640. Although therefore the want of interest on the part of the plaintiff, in the bills in question, constitutes no available objection to the plaintiff’s right to sue, yet according to the settled doctrine of our courts, the claim of set-off, if well founded, may be made as against the asserted owners, Hodge, Oxnard, & Co., the cestui que trusts. This was so held where the subject of the action was a specialty, Childerstin v. Hammon, 9 S. & R. 68; and the negotiable character of bills of exchange, which it has been contended varies the law in this particular, forms no valid objection that we can perceive. In New York, as appears by Mauran v. Lamb, a set-off is not allowed against a cestui que trust, but this is stated to be upon the words of the statute of that state, and applies there, I presume, not to negotiable instruments only, but to all other causes of action.

Rule discharged.