ment made to a cestui que trust, in favor of the trustee to whom the note was payable.*51 But a payment to one joint holder of his separate share of the debt will not take the note out of the stat ute as to the other holder.1 452

451 Chit. Bills, 693; Megginson v. Harper, 2 Cromp. & M. 322, 4 Tyrw. 94. 452 Whitcher v. McConnell, 59 N. H. 470.

(2325)

Who May Sue-American Statutes.

§ 1631. It is provided in many of the United States that every action must be prosecuted in the name of the real party in interest,453

453 ARKANSAS (Sand. & H. Dig. § 5623); CALIFORNIA (Code Civ. Proc. § 367); INDIANA (Horner's Rev. St. § 251); KANSAS (Gen. St. c. 95, § 20);

or by the party having the legal title.454 Others provide that action may be brought by the payee 55 or indorsee 456 of a negotiable note, as on a bill. And if a note or other instrument is made payable to a person who is dead at the time, or to several persons, of whom one is dead, the suit may be brought by his personal representative, or by the survivors, as the case may be.457 In some states it is expressly provided that the holder of a bill or note payable to bearer may sue in his own name without indorsement,458 and that the bearer may sue on a note payable to the maker's order or to a fictitious person.* In some states any assignee of a bill or note may bring suit in his own name.460 And in many states it is provided MISSOURI (Rev. St. § 1990); NEBRASKA (Comp. St. § 5618); NEVADA (Gen. St. § 3026); OHIO (Bates' Ann. St. § 4993); OREGON (Code Civ. Proc. § 27); SOUTH CAROLINA (Code Civ. Proc. § 132); WISCONSIN (Sanb. & B. Ann. St. § 2605). So, in NEW YORK (Code Civ. Proc. § 449) and IOWA (Cǝde, § 3459), except that an executor or administrator, a trustee of an express trust, or a person duly authorized by statute may sue without joining with him the person for whose benefit the action is prosecuted; a person with whom or in whose name a contract is made for the benefit of another being a trustee of an express trust within the meaning of this section.

459

454 As to contracts, in general, GEORGIA (Civ. Code, § 4939); or, as to bills of exchange, notes payable at bank or other designated place, and other commercial instruments, ALABAMA (Code, § 2594).

455 IOWA (Code, $ 3043); MICHIGAN (How. Ann. St. § 1579); MISSOURI Rev. St. § 734); OREGON (Hill's Ann. Laws, § 3190); SOUTH CAROLINA (1 Rev. St. § 1393); RHODE ISLAND (Gen. Laws, c. 166, § 6); WISCONSIN (Sanb. & B. Ann. St. § 1678).

456 NORTH CAROLINA (Code, § 41); MICHIGAN (How. Ann. St. § 1579); MISSOURI (Rev. St. § 734); SOUTH CAROLINA (1 Rev. St. § 1393). For other statutes, see § 738, supra. And in NEW YORK the payee and indorsees of any note to order, and the holder of any note to bearer, may sue as on inland bills. 2 Rev. St. p. 768, § 4. An indorsee may sue on a note, if it is negotiable where it was made and indorsed, although not by the lex fori. v. Olcott, 2 Root (Conn.) 353; Goff v. Billinghurst, Id. 527.

Bowne

457 KENTUCKY (Ky. St. § 477); WEST VIRGINIA (Code, c. 99, § 12). 458 VERMONT (V. S. § 2307); ILLINOIS (Hurd's Rev. St. c. 98, § 8); IOWA (Code, § 3043); MISSOURI (Rev. St. § 734); NEW YORK, supra; OREGON (Hill's Ann. Laws, § 3190); WISCONSIN (Sanb. & B. Ann. St. § 1678).

459 NEW YORK (2 Rev. St. p. 768, § 5); MINNESOTA (Gen. St. § 2236). As against the maker and all persons having knowledge. MICHIGAN (How.

Ann. St. § 1580).

469 CALIFORNIA (Code Civ. Proc. § 368); DELAWARE (Rev. Code, c. 63, § 8); ILLINOIS (Hurd's Rev. St. c. 98, § 5); INDIANA (Horner's Rev. St. §

that any party may sue or be sued by the initials, name, or description by which he is designated in the instrument.461 Provision is also made in some states for action by sureties and indorsers for exoneration or contribution, or for other relief.462

Action by Payee--Joint Payees.

§ 1632. The party entitled to sue upon a bill or note may be designated either (1) in the instrument itself by name, or (2) by his possession, or (3) by other proof of real ownership, with or without the evidence of the instrument itself. In general, the party entitled to sue upon a bill or note is to be looked for in the instrument as the designated payee.463 But, where the plaintiff's name is apparently that which the instrument designates, it may be shown by parol that his initials are different, as tending to show that a different person was intended.464 If the payee's name is left blank, the holder may fill in the blank with his own name, and sue as payee.465 If a note is made to "the heirs of A.," who is then living, the persons intended may bring suit.466 And it has even been held that the heirs of A. may accept, and sue in the executor's name on a note made payable to the executor of A.467

5502); IOWA (Code, § 3044); NEW JERSEY (2 Gen. St. p. 2536, § 21); MISSISSIPPI (Ann. Code, § 3503); RHODE ISLAND (Gen. Laws, p. 494, § 71); SOUTH CAROLINA (1 Rev. St. § 1393); VIRGINIA (Code, § 2860); WEST VIRGINIA (Code, c. 99, § 14). So, in TEXAS (Rev. St. arts. 307, 309), whether negotiable or not. And in NORTH CAROLINA the assignee even of a sealed note can sue, if his assignor could do so (Code, § 41).

461 NEW JERSEY (2 Gen. St. p. 2537, § 28); IOWA (Code, § 3473); KANSAS (Gen. St. c. 115, § 19); MISSISSIPPI (Ann. Code, § 674); NEBRASKA (Comp. St. § 5613); OHIO (Bates' Ann. St. § 5010); TENNESSEE (Shannon's Code, § 4485).

462 By an indorser, MISSISSIPPI (Ann. Code, § 3276); or surety, Id.; DELAWARE (Rev. St. c. 65, § 1). And in GEORGIA a surety or indorser may bring attachment for his protection, before he has paid the note or bill (Civ. Code, § 2979).

463 See § 156, supra.

464 Simons v. Watterman, 17 Ill. 371.

465 2 Daniel, Neg. Inst. 231; 2 Pars. Notes & B. 448; Crutchley v. Clarence, 2 Maule & S. 90.

466 Bacon v. Fitch, 1 Root (Conn.) 181. And see § 152, supra.

467 Turnbull v. Freret, 5 Mart. N. S. (La.) 703.

payee.

Where a bill or note is made payable to several persons, all must join in the action; e. g. all the members of the firm named as payee.168 Even one who has been held out as a partner, and believed by the maker to be such, should join in an action on a note payable to the supposed firm, although he is merely a clerk of the real *** If a note is made payable to A. & Co., A. cannot recover alone, without proof that he is the sole person interested; e. g. that the firm name is his business name.471 It has been held, however, that, where a note is payable to a firm by name, the partners, who constitute it at the time the action is brought, may bring suit, as the real parties in interest, although the firm had other members at the time the note was made.* 472 If a fractional interest in a note is assigned to one of the payee's next of kin, and the maker settles with the other parties interested, and thereby severs their joint interest, the assignee may bring suit alone for his share.473 If a note is payable to several jointly, action may be brought by the survivors on the death of one. 474 If it is made by A. and B. to B. and C., C. may bring suit as on a note made by A. to him.475 If payable to A. or B., either or both of them may sue.*76 The payee is, in general, presumed to be the owner, if the instrument is in his possession.*77

468 2 Daniel, Neg. Inst. 219.

469 Guidon v. Robson, 2 Camp. 302.

470 Benj. Chalm. Dig. art. 142; 2 Pars. Notes & B. 440; Robb v.

La. Ann. 457.

Bailey, 13

471 Ferguson v. King, 5 La. Ann. 642. 42 Whitlock v. McKechnie, 1 Bosw. (N. Y.) 427. So, where a new firm, continuing the name of the old firm, takes the note with other assets, but without indorsement. Pease v. Hirst, 10 Barn. & C. 122.

473 Pratt v. Pratt, 22 Minn. 148; or after payment of one-half by each of two payees, and after recovery by the other of his half on the note, McGregory v. McGregory, 107 Mass. 543.

474 Allen v. Tate, 58 Miss. 585; although the defendant alleged that it belonged to the deceased partner in his individual capacity, Smyth v. Hawthorn, 3 Rawle (Pa.) 355. So, if a note is made to husband and wife, and the wife survives, the husband's executor cannot sue for it. Draper v. Jackson, 16

Mass. 479.

475 Quisenberry v. Artis, 1 Duv. (Ky.) 30. But see § 403, supra; also, §

1671, infra.

476 Westgate v. Healy, 4 R. I. 523. And see § 155, supra.

477 Although indorsed by a third party. Todman v. Purdy, 5 Nev. 238.