Lewis Watson vs. The President, Directors, &c. of the New England Bank, 4 Met. 343

Wilde, J. We have already decided, during this term, in the case of Gleason v. Dodd, (ante, 333,) that in an action on a judgment of a court of another State, the defendant may defend, by showing that such court had no jurisdiction of his person ; and that he may, for that purpose, show that he had no legal notice of the original suit, and never authorized any one to use his name or appear for him in that suit; unless, from the record of such judgment, it appears affirmatively, and as a matter of adjudication, that he had legal notice, or duly authorized an appearance.

And we held, in that case, that the mere recital in the judgment, that the party “ came in,” did not show conclu sively, that he had legal notice, or that he appeared in person and submitted to the jurisdiction, or that he authorized any one to appear for him. That case, therefore, is decisive of the present, unless the defendants, by redelivering the draft without erasing the special indorsement by which it was made payable to them, in legal effect authorized a suit to he brought thereon in their name. But we think it very clear that no such authority was thereby given to the holders of the draft.

Without deciding whether the defendants could legally and properly cancel the indorsement made specially to them, there is no doubt, under the circumstances of the case, that the mere redelivery of the draft to Ellis & Raymond, from whom they received it for collection only, conferred no power on them to sue it in the name of the defendants. We understand, from the statement of facts, that Ellis & Raymond received the draft indorsed in blank, and that they wrote over the indorser’s name the direction to pay the same to the defendants, when they deposited it in the bank for collection.

They, therefore, might have struck out this direction, when the draft was returned to them, and they ought to have done so before they put it in suit; unless they had obtained the authority" of the defendants to proceed upon it in their names. This authority they did not obtain, as the case finds, unless such authority is a necessary legal inference from the mere fact that the defendants redelivered the draft to them with the special indorsement uncancelled. But no such inference can be deduced from this fact. The defendants had no interest in the draft.

It was indorsed to them merely to authorize them to collect it. And when they had transmitted it to Maine for collection, and it was returned to them unpaid, the special indorsement was functus officio. The defendants thereupon did all that was required to protect themselves against third persons, by erasing their own indorsement, and then redelivered the draft to the owners, in the same state in which they received it. In so doing, they neither intended to give, nor did they in law give, any new rights or power to the owners of the draft. Plaintiff nonsuit. The chief justice did not sit in this case