
    Timan vs. Leland, impleaded with Clark.
    Where a suit is necessarily prosecuted in the name of one who has no interest in the demand, the rights of the real owner will be protected, even at law, from a release executed by the nominal plaintiff to the defendant, after the latter has been notified of the true state of the case. Per Bronson, J.
    But the court will not interfere summarily, by ordering the release to be given up and cancelled, unless the case is such that the matter cannot be tried in the usual course of litigation.
    Whether the owner of a demand who might sue in his own name, but sues in the name of another, without his consent, is entitled to protection against the acts of the nominal plaintiff, quere.
    
    Motion to compel Leland, the defendant, to deliver Up a release to be cancelled. The facts were as follows: Calvin Hall, being on unfriendly terms with the defendant Leland, purchased a promissory note made by him and Clark, and immediately commenced this suit upon it, serving the declaration upon Leland only. When Hall went to the attorney’s office to commence the suit, the attorneys were out, and he handed the note to John R. Timan, a clerk in the office, telling him to bring the suit in the name of some other person. The clerk commenced the suit in the name of his father, James Timan, who knew nothing about the matter. Leland went to the plaintiff, Timan, who said he had not authorized the suit, and did not desire to continue it; and within a day or two afterwards he gave Leland an absolute release from the demand. The plaintiff swore that he was in a state of alarm when he gave the release, fearing that some one had forged his name, or that his son, who was then out of town, had done something wrong; and that he was now willing the suit should proceed in his name. ■ No consideration was paid by Leland for the release.
    From the opposing papers it appeared that Leland had done nothing which could affect the validity of the release as between himself and the plaintiff; and that the latter well understood the release was intended to be a frill discharge of the demand and the suit upon it.
    
      It was not directly stated in any of the papers used upon the motion that Leland knew who owned the note at the time he obtained the release; though enough appeared to authorize the inference that he did know.
    
      O. B. Matteson, for the plaintiff,
    moved for an order that the release be delivered up to be cancelled, as being a fraud upon the rights of Hall. The court has power to make such an order. (Chit. On Cont. 779, 780, ed. of 1842.)
    
      M. T. Reynolds, contra.
    There is no doubt that the court can make such an order in a case where the action is necessarily brought in the name of one man for the benefit of another; as in the case of a chose in action not negotiable. But here, Hall might have sued in his own name; and purchasing the note and bringing the action for vexation in the plaintiff’s name, without his knowledge or consent, is a misdemeanor. (2 R. S. 450, § 1.)
    
      Matteson in reply.
    A suit may be brought on a promissory note in the name of one who has no interest, and it is not a defence that the suit was commenced without the knowledge or consent of the nominal plaintiff. (Gage v. Kendall, 15 Wend. 640.)
   By the Court, Bronson, J.

It is now well settled that courts of law will take notice of and protect the rights of all persons beneficially interested in the demand, who necessarily sue in the name of another. Their rights cannot be defeated by any transactions between the defendant and the nominal plaintiff, after the former has notice of the true state of the case. Whether the rule applies where the owner might have sued in his own name, and yet sues in the name of another without his consent, need not be determined on the present occasion. In England, the most common mode of giving relief has been by an order of the court precluding the defendant from setting up a payment to or a release given by the nominal plaintiff; and sometimes the release has been ordered to be delivered up to be cancelled. And pleas setting up such defences have been struck out on motion. The cases are collected in Chit. On Cont. 744, 779, 780, ed. of 1842. But with us, the course has been to leave such matters to be tried in the ordinary forms of law, instead of granting relief on motion. If the defendant pleads the release or other matter of defence, the plaintiff replies, setting up the assigmnent and notice, or giving such other answer to the plea as the nature of the case may require. If the defence is given in evidence on the trial without having been pleaded, the plaintiff gives his answering evidence, and the whole matter is passed upon by the jury. The following references will be sufficient to illustrate what has been said: Johnson v. Bloodgood, (1 Johns. Cas. 51;) Andrews v. Beecker, (id. 411;) Littlefield v. Storey, (3 Johns. Rep. 425;) Van Vechten v. Graves, (4 id. 403;) Anderson v. Van Alen, (12 id. 343;) Meghan v. Mills, (9 id. 64;) Dawson v. Coles, (16 id. 51;) Briggs v. Dorr, (19 id. 95;) Jackson v. Blodget, (5 Cowen, 202;) Wheeler v. Wheeler, (9 id. 34.) I think this much the better course than to decide such questions upon affidavits, where the testimony is often conflicting. If, from the nature of the case, the matter cannot be tried in the usual manner, then relief will be granted on motion. (Wardell v. Eden, 2 Johns. Cas. 121; id. 258; Col. Cas. 137; 1 Johns. Rep. 531 note, S. C.) Here, there is nothing in the way of trying the validity of the release at the circuit.

Motion denied.  