
    
      Lewis O'Brien, bearer, vs. Isaac Sauls.
    
    'The owner of a note payable to bearer, may bring an action on it in tlie name of a person having no interest in it.
    
      Before Frost, J. at Colleton, Spring Term, 1845.
    This was an action on a promissory note, payable to Thomas Pye, or bearer. The defendant proved that the plaintiff had said that he. had no interest in the note, but that it belonged to B. G. O’Brien. His Honor ruled , that it was not necessary that the plaintiff suing on a negotiable instrument, should have an interest in it, and that the real holder might sue in the name of another. Verdict for the plaintiff. The defendant appealed, and now moved to set aside the verdict, and for a new trial, on the ground that the action was not maintainable, because the plaintiff had no interest in the note.
    
      Northrop, for the motion.
    Henderson, contra.
   Curia, per Frost, J.

The holder of a note payable to bearer, by the terms of the instrument has the legal interest and a cause of action against the maker. This proceeds from the distinction between negotiable and common chattels. With respect to the former, possession is prima facie evidence of property. But it is competent for the defendant to impeach that title, and by proof of circumstances, raising a suspicion of fraud, require the holder to prove that he, or some person under whom he claims, took it bona fide and gave a valuable consideration for it. The admission of the plaintiff, however, that he has no interest in the note, does not make a case of mala fide possession. He may be suing as trustee or agent for another. It is very clear law that a suit may be brought in the name of a peison having no interest in the note, for the benefit, and by the direction, of the owner. It is not material to the defendant whether the plaintiff sues in his own right, or for the use of another. His contract obliges him to pay to any person who, by possession of the note, fulfils the description of bearer, unless he acquired the possession by fraudulent means. A recovery in this case, in the name of the present plaintiff, may be pleaded, with proper averments, in bar of a new suit brought by any other person.

King vs. Wilson, 2 Camp. 5; Waggoner vs. Colvin, 11 Wend. 27; Lovell vs. Everston, 11 Johns. R. 52; Gage vs. Kendall, 15 Wend. 640; and Jackson vs. Heath, 1 Bail. 355. The motion is refused.

* O’Neall, Evans, Butler and Wardlaw, JJ. concurred.  