
    Jesse Mosher, Executor, versus Benjamin Allen.
    Where the payee of a negotiable promissory note endorses the same, the endorsee cannot maintain an action upon it, in the name of the payee, without his consent.
    This was assumpsit upon a promissory note, said to have been made by the defendant in the year 1807, payable to Judah Allen, the plaintiff’s testator, or his order. The note was endorsed by the said Judah in his lifetime, and delivered to one B. Allen, Jun., who brought this action thereon, in the name of the said executor. The said nominal plaintiff, at the first term of the Court of Common Pleas where the action was entered, disavowed the action by a writing under his hand, and prayed that it might be discontinued. The endorsee, for whose benefit the action was brought, then offered to indemnify the plaintiff" against all costs and damage: and afterwards in this Court was * ready to give security [ *452 ] for that purpose. The Court of Common Pleas determined that he had a right, under these circumstances, to commence and prosecute the suit in manner aforesaid. The defendant thereupon pleaded the general issue, and the statute of limitations; to which last plea the plaintiff replied, that the note was attested by a subscribing witness; and a trial was had in the Common Pleas.
    At the last May term of this Court, holden at Taunton, by Jackson, J., the motion was renewed on the part of the nominal plaintiff. It did not appear that the plaintiff ever authorized any one to commence the action ; nor that he or his testator ever agreed that the note might be sued in their names respectively. There appeared to be no obstacle to the endorsee’s commencing or prosecuting the action in his own name, nor any advantage in using the name of the executor; excepting that it might enable him to make the above-mentioned replication to the plea of the statute of limitations.
    The cause was continued to the present term upon the said motion, for the determination of the whole Court thereon.
    And now, Whitman and Cushman argued that the real owner ot the note had a right to bring the action in the name of the payee. The endorser not only parted with all his interest in the note, but by his act of endorsing it he engaged to his endorsee, that he should have all lawful means to avail himself of the proceeds. As it is clear that the nominal plaintiff can sustain no injury, he has no motive to disclaim the action. It is the defendant who has procured him thus to insert himself in the suit, and prevent the real party in interest from deriving any benefit from a contract, for which he paid a full consideration to the testator.
    
      W. Baylies, for the defendant.
   Per Curiam.

If the payee of a promissory note, not nego tiable, puts his name on the back thereof, intending [ *453 ] *to transfer it, he authorizes the prosecution of a suit in his name: for there is no other way of making the assignment effectual. But not so when the payee of a negotiable note endorses it; for that act transfers the property and the right of action, and is an assignment in law by the statute of Anne The payee in such case has lost all property in the note, and all control over it. Certainly, without his consent, no action can be maintained upon it in his name.  