Graves et al. v. Mississippi and Alabama Railroad Company, 6 Howard 548

Mr. Chief Justice Sharkey delivered the opinion of the court. The plaintiffs in error contend, that the evidence was not admissible, inasmuch as its tendency was to negative the allegations in the declaration. This case is scarcely distinguishable from the case of the Commercial Bank of Natchez, use of Briggs el al. v. Claiborne, 5 Howard, 301. The note in that case was made payable to the bank for the purpose of getting it discounted, but the bank refused to do so, and Briggs, Lacoste & Co. advanced money on it, and brought suit in the name of the bank, for their use.

It was held that the action was well brought, and that proof could be let in to show the transaction. It does not certainly appear that the note in this case was intended for discount, though it is altogether probable that it was, and that it was therefore made payable to the bank. Notes and bills are sometimes made payable to fictitious payees, and when this is known to the acceptor or maker, they will be held responsible to a bona fide holder. The current of authorities seems to sustain the decision in the case of the Commercial Bank, use of Briggs, v.

Claiborne, in holding that a note so made may be enforced by the holder, who may use the name of the bank, where they are so made payable, for the purpose of sueing. The holder of the note is the party beneficially interested, or real plaintiff, and this circumstance -will justify the introduction of evidence to show his right, although it may in some degree contradict the formal allegation^ in the declaration.

Considering Martin as the real plaintiff, the testimony of Demoss would have been admissible to prove his right to the note if it had been questioned, and it was equally admissible to rebut any other defence which ought not to prevail against him.. The testimony of Gibbs, although it may be objectionable, was immaterial, or at least unnecessary. Demoss stated that the note was not given to the bank, to which it was made payable, but to Johnson, for a valuable consideration. The onus was then changed.

If the defendants wished to make their offset available, it devolved on them to show that it subsequently came into possession of the bank. So that even if Gibbs’ testimony was objectionable, it was but cumulative, and will not justify a reversal of the judgment. ■ Judgment affirmed.