majority">Rice, J.

— ’The “York Tent” is a benevolent, voluntary association. Its funds were raised by voluntary contribution of its members, and by the organic rules of the association, were under the exclusive management of trustees, in whose name they were invested. The plaintiffs at the *209date of tbe note, wbicb is payable to them, or tbeir successors in office, were trustees of tbe association. Tbe defendant, at tbe time tbe note was given, was also a member of tbe association and borrowed of its funds tbe amount of money for wbicb the note was given. At tbe time this action was brought, tbe plaintiffs bad ceased to be trustees, and were succeeded in that office by Moore and McKenney, who under instructions from tbe association caused this action to be brought. These facts are either conceded by tbe parties or found by tbe jury.

At a term of tbe Coui’t prior to tbe trial, on motion of the defendant, Moore and McKenney were required to, and did indorse tbe writ as assignees of tbe note in suit.

After the action bad been for some time pending in Court, tbe defendant procured releases from tbe plaintiffs of record, in which said plaintiffs disavow and disown this suit, and request that it may be discontinued, and state that they are not aware that they have assigned tbe note to any person.

The case is now before us on exceptions, and a motion for a new trial on tbe ground that tbe verdict is against law and evidence.

Tbe first requested instruction was properly refused. Tbe true question was whether tbe plaintiffs bad a right to release tbe defendant and discharge tbe writ, not whether they acted in good faith. They may have acted honestly but erroneously.

It is not tbe duty of a Judge to give instructions upon a point purely hypothetical. Such instructions would tend to divert and distract the attention of a jury, and be productive of injury rather than benefit. Reference must always be had to tbe existing state of tbe proof, to determine whether instructions requested or given are proper or otherwise.

The funds of tbe association, as tbe evidence fully shows, were under tbe sole management and control of tbe trustees. In them was vested tbe legal title, held it is true, in trust, for tbe benefit of tbe association. That associa*210tion is neither a corporation, nor a copartnership. Its members, therefore, who-are not trustees, though they may have a beneficial interest in the funds of the association, as members, are not for that reason legally the joint creditors of the defendant. The nominal plaintiffs could not therefore discharge the defendant simply because they were members of the same association. In their capacity as members they have no control over the funds.

The right of the nominal plaintiffs to control this action, if any they have, arises by virtue of their being parties. The promise was to them; and their control over this suit was absolute, unless their authority had been determined by the expiration of their term of office. The second request was therefore properly withheld.

The questions raised by the instructions given were, whether the action was properly brought in the name of the plaintiffs, and if so, whether by their release to this defendant, the action was discharged.

The note is in terms payable to the plaintiffs. The promise is to them. The conditional words, “ Trustees of the York Tent,” is merely discrip tío personce. Innell & ux. v. Newman & al. 4 B. & Ald. 419; Binney v. Plumbley, 5 Ver. 500; Ingersoll v. Cooper, 5 Blackf. 426; Clapp v. Day, 2 Maine, 305.

The jury have found that the plaintiffs of record had ceased to be trustees. With the expiration of their office their legal right to control the note expired. The note is found in the hands and under the control of Moore and McKenney, their successors in office. By the act of succession, they are to be treated, so far as a right to control the property of the “tent” is concerned, as the equitable assignees of the plaintiffs. Ingersoll& als. v. Cooper, 5 Blackf. 426. They had the possession of the note, and were exercising control and dominion over it. This is evidence of ownership. Harriman v. Hill, 14 Maine, 127.

There is no suggestion that the defendant has ever paid this note, nor that he did not receive a full consideration *211therefor at its inception. On bis motion, the trustees who are now prosecuting this suit have indorsed the writ as assignees, under the provisions of the statute. He-was therefore secured by having a responsible party to whom he might look for his costs, if he had succeeded in his defence.

The plaintiffs of record do not suggest as a reason for desiring to discontinue this suit, any apprehension of being subjected to costs. Had that been the fact, the Court would have seen that they were amply protected from any loss. In reviewing this case, we think the remarks of the Court in the case of Harriman v. Hill, cited above, are particularly appropriate when they say, “ in the case before us we are satisfied that the defence set up is without merits, and is an attempt to escape from the obligation of a promise fairly made, upon a legal and adequate consideration. And we are further satisfied, that the course taken by the nominal plaintiffs is inequitable on their part; that they are in no danger of sustaining loss or injury, and that they have nothing to gain by the suppression of this suit, or its termination in favor of the defendant.”

We do not think that the case at bar is favorably distinguished, for the defendant, from the case above cited, by the consideration that he is attempting to withhold funds which he has borrowed from a charitable association, and which were accumulated by voluntary contributions for benevolent purposes, by a defence founded at best upon legal technicalities, not to designate it by any harsher name.

The Court did not err in admitting the witness Andrews. Pond v. Hartwell, 17 Pick. 272.

We do not perceive any error in the instructions given, and think the verdict is sustained by the evidence, and is in conformity with both the law and the equity of the case.

Exceptions and motion overruled.

Judgment on the verdict,

Citation profile

Relationships

How this case has been treated — in progress