Andrews v. McDaniel
| Decision Date | 31 January 1873 |
| Court | North Carolina Supreme Court |
| Parties | JOHN ANDREWS, Adm'r of ELIZABETH ANDREWS v. F. MCDANIEL. |
The real owner of a negatiable note, not indorsed, is the proper person to sue for its recovery under sec. 55, of the Code of Civil Procedure.
In a suit for the recovery of a negotiable note not indorsed, the evidence of an administrator, (the plaintiff,) is admissible to prove that his intestate bought the note, and gave therefor full value.
( Whitesides v. Green, 64 N. C. Rep. 308, cited and approved.)
CIVIL ACTION, tried before Clarke, J., at Fall Term, 1872, of the Superior Court for JONES county.
The suit was brought on a note made by the defendant and one Pritchett, for $700, payable to one Thomas Wilcox, on the -- day of -- 1861, the note not being indorsed. The plaintiff by his own evidence proved that his intestate in her lifetime bought the note from Wilcox, the payee, giving full value for it, in the notes of Wilcox and a balance in money. This evidence was objected to, but received by the Court. Defendant excepted.
Defendant asked his Honor to instruct the jury that as the note had not been indorsed to the plaintiff, he could not maintain the action. This instruction the Court refused, and charged the jury that if they were satisfied that the plaintiff's intestate purchased and paid for the note, as stated by the plaintiff, he was entitled to their verdict.
The jury returned a verdict in favor of the plaintiff. Motion for a new trial on the grounds of mis-direction to the jury and the reception of incompetent evidence. Motion overruled. Judgment and appeal by the defendant.
Hubbard and Haughton, for appellant .
Green, contra .
Two objections are made by the defendant against the recovery in this case. First, that as the action is upon a negotiable note, without indorsement, the action should have been in the name of the payee in the note, although it was proved that the plaintiff was the real party in interest. It is a sufficient answer to this objection that C. C. P., sec. 55, expressly provides that every action must be prosecuted in the name of the real party in interest, except as otherwise provided in sec. 57. This section is in these words: “An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue without joining with him the person for whose benefit the action is prosecuted,” &c. It cannot be pretended that this case falls within the exceptions mentioned in this section; and consequently the action must be prosecuted in the name of the real (not the legal) party in interest, which is the plaintiff. Could any language be more explicit?
As to the second question...
To continue reading
Request your trial
-
Thompson,v,. Osborne.
...payable to bearer, raises the presumption that the person presenting it on the trial is the real and rightful owner, citing Andrews v. McDaniel, 68 N. C. 385; Jackson v. Love, 82 N. C. 405, 33 Am. Rep. 685; Bank v. Bynum, 84 N. C. 24, 37 Am. Rep. 604; Pate v. Brown, 85 N. C. 166. It was fur......
-
Thompson v. Osborne
...payable to bearer, raises the presumption that the person presenting it on the trial is the real and rightful owner, citing Andrews v. McDaniel, 68 N.C. 385; Jackson Love, 82 N.C. 405, 33 Am. Rep. 685; Bank v. Bynum, 84 N.C. 24, 37 Am. Rep. 604; Pate v. Brown, 85 N.C. 166. It was further he......