Rixford v. Wait

28 Mass. 339

• Court: Massachusetts Supreme Judicial Court
• Decided: September 28, 1831
• Status: Published

Opinion

Per Curiam.

The rejoinder is bad. Whether a release, made by a nominal party, after an assignment and delivery of the note to another for a valuable consideration, with an authority to the assignee to sue and collect the note in the name of the assignor, was fraudulent or not, was a mere question of law. If the defendants intended to deny the assignment pleaded, they should have traversed the fact; if they meant to insist, that the effect of such assignment was not such as to avoid the effect of the release given by the nominal plaintiffs, as a defence to the note, they should have demurred.

Rejoinder adjudged had.

Mote. —Afterwards the defendants moved for leave to withdraw their rejoinder upon terms, and rejoin anew, upon affidavits, showing surprise and mistake, under which the rejoinder was filed. The motion was allowed on the terms of paying the plaintiffs their costs since the rejoinder was filed, and taxing no costs for the same period, in case of being ultimately the prevailing party. It being obvious, that the nominal plain tiffs were in the interest of the defendants, it was further ordered, that the costs to be paid by the defendants should be paid into the hands of the plaintiffs’ attorney personally, so as to enure to the benefit of the assignee, who was the plaintiff in interest, and at whose expense the suit was conducted.