Thatcher v. Winslow

23 F. Cas. 894, 5 Mason C.C. 58

• Court: U.S. Circuit Court for the District of Rhode Island
• Decided: June 15, 1828
• Status: Published

Opinion

STORY, Circuit Justice.

If the facts stated by the witness on this last point are not denied, I think the cause is at an end. Unless the plaintiff is a real holder of the note, and has some interest in it, he cannot maintain an action as indorsee against the defendant. Here the proof is, that the Merchants Bank is the real holder, and the plaintiff is merely an agent for the bank. I take it not to be competent for a mere agent to maintain an action on a negotiable note in his hands, although it be with the consent of his principal. He must be. the owner of the note, or have some substantial interest therein. Pri-ma facie indeed the possession of such a note is evidence of the party’s being a holder for a valuable consideration, and unless the note has been previously stolen, or received by him under suspicious circumstances, he is not bound to prove by other evidence, that he is such a bona fide holder. But if it is admitted or proved aliunde, that he is but a mere agent, and holds the note as such, he is not competent to recover a judgment upon it in his own name. See Gunn v. Cantine, 10 Johns. 387; Gilmore v. Pope, 5 Mass. 491.

The plaintiff discontinued his suit.