#### NATIONAL CITY BANK OF WASHINGTON *v.*BANKERS TRUST COMPANY.

Bills and Notes; Parties to Action.

1. Where a foreign trust company, to which was indorsed specially a promissory note, sent the note to this District for collection, and after-wards intervened in an action in which the proceeds of the note had been attached in the hands of the collecting bank here, *quaere,*whether the plaintiffs in the action can properly raise the question for the-first time on appeal, whether the trust company, and not its indorsee, was the proper party to intervene.

2. An indorsement of a promissory note in trust restricts the free circulation of the note, and takes it out of the class of instruments known as commercial paper; but the indorsee, having the legal title thereto, and having authority to receive payment thereon, may bring suit in his own name to enforce payment, especially where his indorser does not object.

No. 2292.

Submitted October 16, 1911.

Decided December 4, 1911.

*554Hearing on an .appeal by the plaintiff from a judgment of the Supreme Court of the District of Columbia quashing a writ iof attachment on an intervening petition.

*Affirmed.*

The facts are stated in the opinion.

*Mr. W. J. Lambert*for the appellant.

*Mr. R. 8. Minor*and *Mr. L. R. Mason*for the appellee.

Mr. Justice Robb

delivered the opinion of the Court:

The facts in this case are identical with the facts in the preceding case, except that the note herein sued upon amounted with interest to something less than $4,000, whereas in the preceding case it amounted to something more than that sum.

The question whether the Bankers’ Trust Company, the intervening claimant, was the proper party to intervene, is raised in this case. It is asserted that this trust company is a mere agent of the Superintendent of Banks, and hence that he, and not the trust company, should have intervened. So far as the record discloses, this contention was not made in the trial court, where, had it been sustained, the difficulty might easily have been overcome. It well might be ruled, therefore, that this point was waived. *Coffin*v. *Grand Rapids Hydraulic Co.*136 N. Y. 655, 32 N. E. 1016.

But the question may easily be disposed of upon another ■ground. The Smith note, as we have seen in the prior case, was specially assigned by the Superintendent of Banks, into whose possession and control it had come, to the intervener,, who thereupon became its legal holder as trustee. While such an indorsement restricts the free circulation of a note, and takes it out of the class known as commercial paper *(Third Nat. Bank*v. *Lange,*51 Md. 138, 34 Am. Rep. 304), the indorsee, having the legal title thereto, and having authority to receive payment thereof, may bring suit in its own name to enforce payment. *Rice*v. *Rice,*106 Ala. 636, 17 So. 628; 8 Cyc. 82. *555In the present case the intervener in its petition fully set forth, .all the facts, and evidently its acts in the premises have received the approval of the Superintendent of Banks, since he is not here objecting. We rule, therefore, that in the circumstances as disclosed by the record the Bankers’ Trust Company •was properly permitted to intervene.

Judgment affirmed, with costs. *Affirmed.*