A promissory note payable to bearer, is payable to, and may be sued by, any person having the legal interest under a delivery by the payee. The production of the note in question by the plaintiff, is prima facie evidence of her holding it as proprietor ; and the burden is upon the defendant, if he would impeach such title. The original holder had a right to transfer the note to the plaintiff, so as to make her the legal holder and enable her to sue in her own name ; or, if she chose, she might commit it to the plaintiff as her agent, to keep and to collect for her use. This would not be a transfer of the property ; the plaintiff would be an attorney for the holder, and not the holder herself. If she sued, she must have sued in the name of her principal, Lucy. If the latter was the character of the transaction, the plaintiff’s authority was revoked by the death or marriage of Lucy. There is much reason to believe that what took place was intended, not as a delivery to the plaintiff as an attorney and agent of Lucy, but as a holder, to sue and collect, and hold the proceeds either for her own use, or in trust for Lucy, and in either case the plaintiff would have a right to maintain this action. But as the report of the judge stands, we think the' facts show, that the note was delivered to the plaintiff as a depositary and agent, and did not vest the legal interest in her, and therefore that she cannot maintain an action in her own name.
Under the agreement of the parties, the verdict is to be set aside, to let in proof as to the validity of this defence.