
    Ezekiel D. Demuth versus John L. Cutler.
    The law is now well settled, that an action on an indorsed note or bill of exchange may be maintained in the name of a nominal plaintiff with his consent.
    If an action be brought in a wrong county, that fact should be pleaded in abatement, or taken advantage of on motion. The general issue is a waiver of the objection.
    Exceptions from the ruling of Tenney, C. J., presiding at Nisi Prius.
    
    Tuts was an action of assumpsit against the defendant as indorser of a promissory note of the following tenor: — "Augusta, 24th May, 1854. Eor value received, I promise, as treasurer of Vassalboro’ Company, to pay to the order of James Bridge, fifteen hundred dollars in eighteen months, with interest annually. (Signed,) James Bridge, Treasurer Y. Co.” Indorsed, "James Bridge, Reuel Williams, J. L. Cutler, Gilbert Hillman.” Plea, general issue.
    
      The plaintiff called Gilbert Hillman, who testified that he received the note in suit at or about the time it bears date, from the defendant, in consideration of the sum of fifteen hundred dollars, which he then had in his possession, belonging to his son, Robert Hillman, who was then in California, and who had remitted it to him for investment on his account; that he informed the defendant that the money belonged to his son, that Mr. Cutler had applied to him for a loan on behalf of the Vassalboro’ Company, that all the names were on the note except his' own, when it was first offered to him. He further testified that he was then acting as the agent or attorney of his son, under a written power of attorney to transact all his business, that his sou was still in California, not having been in Maine since, and had no knowledge of this suit and had given no consent to it; that he, as attorney of his son, had commenced it in Hemuth’s name, Demuth having consented to it, also, at Mr. Gould’s request, as he supposed. He further testified that he had no interest in the note, but that in all that he had done he was acting for his son, by virtue of the power of attorney which he held.
    The defendant then offered to prove that Demuth was wholly irresponsible and unable to pay the costs, which would be recovered against him, if the defendant should prevail.
    The defendant contended that this action could not be maintained by the plaintiff, he having no interest in the suit, and because Robert Hillman had given no consent that it should be brought in Demuth’s name, and because, even with his consent, no action could be maintained in this county, the defendant being a resident of Augusta, in Kennebec county, and so alleged to be in the writ. The presiding Judge, in order to settle other questions in the case, ruled that the action was maintainable.
    The defendant objected further, that no title to the note in suit passed by the indorsement of Gilbert Hillman to the plaintiff; that the indorsement by the defendant was to Robert Hillman, who was still the owner of the note, and that for that reason the action could not be maintained. But the Judge overruled the objection, and decided that the action might be maintained upon the indorsement of Gilbert Hillman to the plaintiff. The jury returned a verdict, under the instructions of the Court, in favor of the plaintiff.
    The defendant excepted.
    
      Gould, for the plaintiff.
    
      Evans & Thacker, for the defendant.
   The opinion of the Court was drawn up by

Appleton, C. J.

The note in suit was indorsed in blank. The law is too well settled to be longer a matter of controversy, that an action on an indorsed note or bill of exchange may be maintained in the name of a nominal plaintiff, with his consent. Golder v. Foss, 43 Maine, 364; Granite Bank v. Ellis, 43 Maine, 367. In Craig v. Twomey, 14 Gray, 486, the plaintiff testified that the suit was not conducted for his benefit, but for that of a third person, who, on his part, denied having anything to do with it; yet the plaintiff, subsequently adopting the action, it was allowed to proceed. " Courts will never inquire,” remarks Chambees, J., in Whiteford v. Burckmyor, 1 Gill, 127, " whether a plaintiff sues for himself or as trustee for another; nor into the right of possession, unless on an allegation of mala fides; and the blank indorsements may be filled up” at the moment of trial.” But this will not be permitted to prejudice the defendant, by depriving him of any just ground of defence.

If an action be brought in the wrong county, that fact may be pleaded in abatement or taken advantage of by motion. But the general issue is a waiver of whatever might have been so pleaded or taken advantage of by motion. Webb v. Goddard, 46 Maine, 505.

Exceptions overruled.

Rice, Cutting, Davis, Kent and Walton, JJ., concurred.  