#### *Guernsey *vs. Burns and Graves.*

It is no defence to an action on a promissory note that the *property*of the note is in a third person, and not in the plaintiff. Unless the possession of the note by the plaintiff is *mala fide,*and may work some prejudice to the defendant, the latter is not entitled to be heard on the subject.

This was an action of assumpsit, tried at the Monroe circuit in April, 1840, before the Hon. Nathan Dayton, one of the circuit judges.

. The plaintiff declared on the common money counts, and attached to the declaration a copy of a note made by the defendants, bearing date 5th October, 1839, for the sum of $400, payable three months after date, to the president, directors, and company of the bank of Western New-York, at their banking house, or to *learer.*The defendants pleaded ; 1. Non assumpsit ; and 2. That they never undertook or promised to pay the plaintiff any sum of money whatever directly, and never became, and are not at the time of pleading, liable to pay him any money for any cause or consideration whatever, *unless he is the*owner, *and lauful learer of a certain promissory note*made by them, &c. (describing ,the above note ;) which note they say was at the time it fell due and still is, *the property of the said president,*&e., traversing that the plaintiff was or is *the lawful learer and owner of the note.*To this plea the plaintiff replied, denying that the note at the time of the commencement of this suit, or at any time since, was the *property*of the president, &c., but that he, the plaintiff, before and at the time of the commencement of the suit, *was the lawful holder and learer*of the note. Upon these pleadings the parties went to trial. After the note was read in evidence, the defendants read a stipulation signed by the plaintiffs attorney, that on the trial of the cause he would admit, that the *leneficial interest*in the promissory note in controversy was at' the time of the commencement of the suit, and on the 30th April, 1840, continued to be *in the lank of Western New-York.*The plaintiff then proved, that prior to the commencement of the suit he was and still continued to be the [ *412 ] ^president of the bank of Western New-York, and that the note in question was sued under an arrangement with the bank, that *315he should in his own name sue and collect the negotiable notes in which the bank was *beneficially interested.*Whereupon the jury, under the direction of the judge, found a verdict for the plaintiff. The defendants asked for a new trial.

*E. Darwin Smith,*for defendants.

*M. F. Delano,*for the plaintiff.

*By the*Court,

Nelson, C. J.

The pleadings are quite untechnical, and have been drawn without comprehending fully previous decisions. They present two issues: 1. As to the beneficial property in the note ; and 2. As to the legal title to it. The first is immaterial, and the second was properly found for the plaintiff. The note is payable to *bearer,*and of course is transferable by delivery ; and a person thus holding it, has the *legal interest*and may maintain the suit.

It is true, the replication sets up that the plaintiff is the lawful owner and bearer; whereas the *property of the note is in the bank:*but as between the plaintiff and the defendants, the plaintiff is, in judgment of law, the owner, as they are precluded from disputing it. Unless the possession is *mala fide,*and may work some prejudice to them, they have no concern with that inquiry. The case stands firm upon the presumption of ownership arising from the possession, 15 *Wendell,*640, and cases there cited.

New trial denied.