
    Howell and Smith against Hallett.
    DECEMBER, 1822.
    1. Omission of in dorsement of cause of action omn the writ is error, unless cured by act.
    2, The bearer of a sealed note payable to T. or bearer cannot Debt on it.
    
      Owen and Gale for plaintiffs.
    
      Crawford and Hitchcock for defendants in Error.
   JUDGE Crenshaw

delivered the opinion of the Court.

The first assignment is,' that there does not appear to be any indorsement of the cause of action on the original writ. ^ am not disposed to lend an easy ear to objections of this ■; but our Statute requires that the cause of action be ^nd°rsed bn the writ, which was not done in the present case, and .the judgment was by default, without any appear-anee, plea, or other act. of defendant’s, amounting to a yyajver 0f the objection. I am therefore inclined to-think that this is Error. The third assignment is, that.the declaration sets out a writing obligatory, and concludes with a super se assumpsit.

The declaration states that the defendants made their writing obligatory payable to William N. Thompson or bearer, which was transferred by delivery to the plaintiff. Notes under seal are not by the law merchant, or by the British Statutes, negotiable either by indorsement or delivery; though, like other choses in action, the assignment of them would be protected in' Equity, and operate as a warrant of attorney to the assignee to sue at law, in the name of the obligee, and recover to his own use. Our Statute authorises them to be assigned by indorsement (but not by delivery), and the assignee to sue in his own name. The bearer, therefore, of a note under seal not being the obligee or assignee, cannot sustain an action on it in his own name ; and as no assumpsit can be implied bylaw, it was most clearly Error to declare in assumpsit on it. As to the 5th assignment, the averment that defendant had not paid the plaintiff, implies that he has not had the money at all. As to the 5th assignment, it also shews Error. The judgment is, that the plaintiff recover the sum of f for his debt, and is for no sum at all.

Although the Court do not unanimously concur with me in the above reasoning, we are unanimous in the opinion that the judgment must be reversed on the ground that the declaration is in assumpsit. .  