1. The paper writing set out in the declaration is not a negotiable promissory note, on which an action can be maintained by a person other than the one to whom it is made payable. It is a contract to pay a sum of money on a condition, and not a promise to pay it to the payee or holder absolutely and at all events. The defendant’s intestate by the terms of the note had a right to pay it in full, at any time before its maturity, to the persons to whom it was made payable. Such payment to them would have been a good discharge of the contract, although it had then been passed over to a third person, if the promisor had no notice of such transfer. The stipulation or condition therefore was inconsistent with its unlimited negotiability, and takes away from the contract the essential feature of a promissory note. Chit. Bills, (12th Amer. ed.) 134 & seq.
2. The objection now urged by the plaintiff’s counsel, that the point on which the defendant relies was not properly raised by the pleadings, does not seem to have been taken at the trial, and is therefore not now open on the exceptions. But we cannot doubt that it was competent for the defendant to object that the note, when offered in, support of the declaration, did not maintain the action. True it is that the defendant might under the practice act, St. 1852, c. 312, § 21, have raised the same question by demurrer; but it does not follow that he is precluded from making the same objection at a subsequent *173stage of the case. On the contrary, the plaintiff was bound to show in evidence a note which would enable her to maintain an action in her own name as indorsee of a negotiable promissory note. But the contract given in evidence was one upon which the plaintiff could not maintain an action in her own name in any form. This defence was therefore open at the trial. Hervey v. Moseley, 7 Gray, 479.
Exceptions sustained.