Harris, Justice. This is, obviously, a fit case for the exercise of the discretion vested in the court by the 122d

section of the Code. The mere fact that a third person made some claim to the subject matter of the action should not induce the court thus to interfere. But this seems to be a case where the defendant, though entirely indifferent between the parties claiming the fund, and ready and willing to pay it to either who may be entitled to it, cannot, by paying it to either, or even by submitting the matter to the decision of the court, in this action, be protected against another action by Mrs. Skinner, the holder of the note. It would be oppressive to compel the defendant to occupy such a position.

It is said that as the note is payable to the order of Jewett, though as guardian, it has never been legally transferred to her, and, therefore, no action can be maintained by her upon the note. Even if this were so, I do not think it would furnish sufficient ground for denying the motion. But I am inclined to think that, though the note has not been endorsed to Mrs. Skinner, she may maintain an action upon it by showing that she is the real party in interest. Possession alone has been held to be presumptive evidence of title to a negotiable note. Moltram agt. Mills, (1 Sand. S. C. R., 37;) Camden Bank agt.

Rodgers, (4 Howard, 63.) No injustice 'can result from granting this motion. The defendant ought not to be compelled to litigate when he is ready and willing to pay all that is demanded of him, provided he can be free from further litigation on the subject.

Under these circumstances an order must be entered that, upon the payment, by the defendant, to the clerk of Rensselaer, of the amount due upon the note in question, principal and interest, deducting therefrom ten dollars for the costs of this motion, within five days after the entry of the order, Nancy Skinner be substituted as defendant in this action, in the place of the present defendant, and that he be discharged from liability to either party on account of the matters in controversy. The order must further provide that, if Mrs.

Skinner shall not, within twenty days after service'of a copy thereof, and a copy of the complaint, appear and defend the action, the moneys so deposited shall be paid over to the plaintiff.