
    Luther Rixford et al. versus John Wait et al.
    
    Assumpsit on a promissory note. Plea, alleging a release by the plaintiffs. Replication, alleging a previous assignment of the note, and so the action is prosecuteo for the benefit of the assignee, and the nominal plaintiffs have no interest in it, but executed and delivered the release in collusion with the defendants, and in fraud of the rights of the assignee. Rejoinder, that the release was not executed and delivered in collusion with the defendants and in fraud of the rights of the assignee. Held, on special demurrer, that the rejoinder was bad, inasmuch as it tendered an issue on a mere question of law.
    Upon an affidavit that the rejoinder was filed under a mistake, the defendants had leave to rejoin anew, on the terms of paying the plaintiffs their costs since the rejoinder was filed, and taxing no costs for the same period in case of their being ultimately the prevailing party.
    It being obvious that the nominal plaintiffs were in the interest of the defendants, it was further ordered, that the costs to be 'paid by the defendants should be paid to the plaintiffs’ attorney personally, so as to enure to the benefit of the assignee.
    To an action on a promissory note, the defendants plead a release by the plaintiffs puis darrein continuance, with a proferí.
    
      
      Sept. 26th
    
    The plaintiffs pray oyer, and the instrument being set out, k appears to be under seal, executed by Rixford, Skinner and Eairoanks, the plaintiffs, purporting to be a release of all demands, and' especially of the note sued, describing it as “ a note now in suit in our names, but not authorized by us.” The replication then alleges a previous assignment of the note from the original promisees, through several mesne conveyances, for a valuable consideration, to Dorus Bascom, who thereby became possessed of the same as of his own property, with full right and power to control, sue for, recover and dispose of the same for his own benefit; and so the plaintiffs say that this action is prosecuted for the use and benefit of Bascom, that the nominal plaintiffs have no interest in it, but executed and delivered the supposed release in collusion with the defendants, and in fraud of the rights of Bascom ; of all which matters the defendants, prior to the execution of the release, had notice.
    The defendants rejoin, that the release was not executed and delivered by the nominal plaintiffs in collusion with the defendants and in fraud of the rights of Bascom, and tender an issue to the country.
    The plaintiffs demur, and assign the following causes ; —
    1. Because the issue tendered is immaterial: —
    
      2. Because the rejoinder only traverses matter introduced as an inference from the facts previously alleged : —
    3. Because the traverse is taken upon matter of law, the allegation of fraud and collusion being made in the declaration merely as an inference of law : —
    4. Because the rejoinder does not traverse any of the assignments stated in the replication, nor the allegation that the nominal plaintiffs were in nowise interested in the note or suit, but only that they fraudulently and collusively executed the release.
    
      Wells cited,
    in support of the first cause of demurrer, Jones v. Witter, 13 Mass. R. 304 ; Boylston v. Greene, 8 Mass. R. 465 ; Dawes v. Boylston,. 9 Mass. R. 337 ; Brown v. Maine Bank, 11 Mass. R. 157; Eels v. Finch, 5 Johns. R. 194 ; Prescott v. Hull, 17 Johns. R. 284 ; Dawson v. Coles, 16 Johns. R. 51 ; Briggs v. Dorr, 19 Johns. R. 95 ; — and in support of the second and third causes, Priddle and Nap
      par’s Case, 11 Co. 10; 2 Wms’s Saund. 161, note 11 ; The King v. Mayor &c. of York, 5 T. R. 67 ; Kenicot v. Bogan, Yelv. 199 ; Rex v. Abp. of Armagh, 2 Str. 841.
    
      Sept. 28th.
    
    .fíales and Dewey, for the defendants.
   Per Curiam.

The rejoinder is bad. Whether a release, made by a nominal party, after an assignment and delivery of the note to another for a valuable consideration, with an authority to the assignee to sue and collect the note in the name of the assignor, was fraudulent or not, was a mere question of law. If the defendants intended to deny the assignment pleaded, they should have traversed the fact; if they meant to insist, that the effect of such assignment was not such as to avoid the effect of the release given by the nominal plaintiffs, as a defence to the note, they should have demurred.

Rejoinder adjudged had.

Mote. —Afterwards the defendants moved for leave to withdraw their rejoinder upon terms, and rejoin anew, upon affidavits, showing surprise and mistake, under which the rejoinder was filed. The motion was allowed on the terms of paying the plaintiffs their costs since the rejoinder was filed, and taxing no costs for the same period, in case of being ultimately the prevailing party. It being obvious, that the nominal plain tiffs were in the interest of the defendants, it was further ordered, that the costs to be paid by the defendants should be paid into the hands of the plaintiffs’ attorney personally, so as to enure to the benefit of the assignee, who was the plaintiff in interest, and at whose expense the suit was conducted.  