
    Henry R. Frost, Assignee, vs. Ex’rs of Edward Croft.
    Where a bond is given to a single woman, who afterwards marries, and she and her husband then assign the bond, the assignee, suing in his own name, will not be nonsuited, because in his writ, and in the recitation thereof in the declaration he styled himself assignee of the single woman, without mentioning the marriage or naming her husband, and in the declaration averred, in general terms, that the bond was "duly assigned" to him.
    BEFORE GLOVER, J., AT CHARLESTON, FALL TERM, 1855.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an action of debt on a lost bond, alleged to have been made by Bird M. Pearson and Edward Croft, and payable to Ellen W. Cook. In the declaration, the plaintiff is styled assignee of Ellen W. Cook, but in the allegation setting out the assignment to the plaintiff, no assignor is named. The defendant pleaded non est factum, no assignment, and payment.
    “ In 1842, Thomas D. Condy sold the bond to the plaintiff as the property of Victor J. Eourgeaud and Ellen W., his wife, formerly Ellen W. Cook. Neither the date, penalty, condition, or assignment of the bond was shown. At the last calculation of interest, a balance of about eight hundred dollars was due. Edward Croft made several payments on it, and two in 1851. Three or four years ago the plaintiff lost his iron safe, in which he kept this bond and other valuable papers, and it has not since been seen.
    “ A certified copy of a mortgage from Bird M. Pearson to Ellen W. Cook, was not admitted in evidence, because the proof of the existence of the original was too slight, and there was no proof of the execution of the original mortgage.
    “ The defendant’s counsel moved for a nonsuit on the following grounds:
    
      1. Because the plaintiff had failed to prove the existence, contents and loss of the original bond.
    2. Because the plaintiff is styled the assignee of Ellen W. Oook; whereas he should have been styled the assignee of Y. J. Eourgeaud and Ellen W., his wife.
    “ I thought that there was sufficient evidence to satisfy the jury of the existence, loss, and contents of the bond; but admitting that an assignment may have been presumed, it should have been alleged to have been made by Victor J. Eourgeaud and Ellen W., his wife, and that the plaintiff should have been styled assignee of Eourgeaud and wife, and not of Ellen W. Cook, who was the wife of Eourgeaud when Condy sold the bond to plaintiff. On this ground the nonsuit was granted.”
    The plaintiff appealed, and moved to set aside the nonsuit on the grounds:
    1. Because the Act of Assembly authorizing the assignee of a bond to sue in his own name, requires that in the writ he shall be styled “the assignee of the obligee.” The obligee in this case was Ellen W. Cook, and therefore the plaintiff was rightly styled “ assignee of Ellen W. Cook.”
    2. Because the allegation of the assignment of the bond to the plaintiff is in proper form, and there was no variance between the allegation and the proof.
    
      Frost, for appellant.
    The last assignee is to be considered as the assignee of the obligee, and'is not required to deduce his title through the intermediate assignments: Act of 1798, 5 Stat. 330; Wheeler vs. Hughes, 1 Dallas, 123; Newman vs. OrocJcer, 1 Bay, 147.
    
      
      Yeadon, contra.
    The obligee becoming a feme covert prior to the assignment of the bond, the assignment must be by husband and wife, and must be so alleged in an action on the bond by the assignee.'
    
      Lesesne, in reply.
    It is not necessary to follow the counsel on the other side in discussing the facts. The evidence is not fully’ reported, because the ground on which the nonsuit was ordered is strictly legal and technical.
    
    The naked questions submitted in the grounds for setting aside the nonsuit, are, 1. Whether the designation of plaintiff as assignee of Ellen W. Cook, when the assignment was in fact made after her intermarriage with Dr. Eourgeaud, is a fatal mistake, warranting a nonsuit; and 2d, Whether a. general averment, that the bond was duly assigned to the plaintiff, is not sufficient, without stating specifically by whom the assignment was made.
    1. The assignee of a bond cannot sue in his own name, at common law. The power is given by statute, and the directions of the statute must be strictly followed. It was ruled below that the plaintiff should have been styled assignee of Victor J. Eourgeaud and Ellen W., his wdfe, because the assignment was actually made by them. But the statute requires the plaintiff to style himself “ assignee of the obligee.” Who was the obligee in this bond ? Ellen W. Cook, not Victor J. Eourgeaud and Ellen W., his wife. Plaintiff then was rightly styled “assignee of Ellen W.. Cook,” and no other designation would have answered the requirement of the statute. It is, moreover, strictly true. A bond is payable to the obligee and his assigns. The obligee assigns to A., A. to B., B. to C. A., B.' and C. are all “ assigns.” And the ultimate assignee C., may, with perfect propriety of language, be called the assignee of the obligee. He is assignee of his immediate assignor, and he is also assignee of the first assignor, the obligee.
    There is a distinction between what is allegation, or averment, and mere designation, which seems to have been lost sight of. If the declaration had alleged that Ellen W. Cook assigned to plaintiff, the proof should have corresponded, and upon the proof adduced, that she in fact assigned by her name of Ellen W. Fourgeaud, along with her husband, there would perhaps have been a fatal variance between the allegata and prolata. But no such allegation was made. Plaintiff was only styled assignee of Ellen W. Cook, in accordance with the statute. This is mere designation, desoriptio personse. And in this view of the matter, even if the designation were untrue, a mistake, it would only amount to a misnomer. But a misnomer is not a ground for a nonsuit. It must be pleaded in abatement. Stephen on PI. 302 ; 1 Chitty, 440.
    2. The bond was payable to Ellen W. Cook. She after-wards married V. J. Fourgeaud, and she and her husband assigned to plaintiff. It was ruled below, that the allegation should have been specifically to that effect. The allegation actually made is, that the bond was duly assigned to the plaintiff, that is, by the person or persons who had the right to assign. If it was assigned by Fourgeaud and wife, it was duly assigned, and there was no variance between the allegation and proof, and no ground for the nonsuit.
    And it is not necessary to state by whom the assignment was made. The general averment used in this case is sufficient. It is enough to set forth the name of the obligee, and then state the legal effect of the assignment in the terms used, “ duly assigned.” 2 Chitty, .186; lb. 216.
    But even if the proposition were tenable that the assignment must be alleged specifically as it was made, failure to do so would not be ground for a nonsuit, but for special demurrer. And it is an error, to say that, in that case, there was nothing apparent on the declaration to demur to. The declaration sets forth that Ellen W. Cook was the obligee, and the defendant might have raised the question by demurring and assigning for cause, that the declaration should have averred that Ellen W. Cook, or any person in whom her right had become vested had assigned.
    If the nonsuit be set aside, and the case be sent back, it will be proper for this Court to give instructions on the point, whether the attested copy of the mortgage from Bird M. Pearson to Ellen W. Cook should have been received as evidence. It was rejected “because the proof of the existence of the original was too slight, and there was no proof of the execution of the original mortgage.” But it has been decided that the recording is sufficient proof of existence, and that it is not necessary to prove the execution of the original. Oul~ pepper vs. Wheeler, 2 McMul. 67; McLeod vs. Rodgers, 2 Rich. 22; Darby vs. Huffman, 2 Rich. 533 ; Peay vs. Picket, 3 McC. 318.
    Proof of the loss of the original is the “ only restriction that has ever been put on the comprehensive words of the statute,” (3 Stat. 303,) and that proof was abundant in this case.
   The opinion of the Court was delivered by

Withers, J.

We shall consider only the ground upon which the plaintiff was subjected to nonsuit: to wit, that he described himself, in his writ and in the recitation thereof in the counts of his declaration, as the assignee of Ellen W. Cook, whereas the evidence showed that the bond was sold to him after Ellen W. Cook had married Eourgeaud, and that it was assigned to him by Eourgeaud and wife, Ellen W. It is to be observed, that the plaintiff did not aver, that the assignment had been made by Ellen W. Cook, but his averment was thus: and the said bond was afterwards duly assigned to the said plaintiff.”

It is declared in the preamble of the Act of 1798, (5 Stat. 330,) that assignees of bonds, &c., were put to great inconvenience by the law which compelled them to bring suits in the name of the obligees in the same; wherefore it was enacted, that such assignee might bring any appropriate action in his own name, “ styling hiipself in the writ to be issued, the assignee of the obligee.” Many actions have been brought and judgments recovered in the name of th§ obligee of bonds, notwithstanding the same were assigned, and it seems probable, that the Act contemplated only cases where the obligee was alive, and where, consequently, before that Act, the action was necessarily to be in his name.

The Act of 1798, is imperative in directing that one, in the circumstances of this plaintiff, shall style himself in his wril, assignee of the obligee. He has complied literally with the Act. In legal contemplation he is the assignee of Ellen W. Cook; that is, her legal interest in the bond has been assigned to him, and she was, and is, the obligee thereof. She actually joined in the transfer, and the act of her husband in also joining, served only, in a legal view, to estop him in any assertion of marital right, and to manifest his acquiescence in the authority, which she exercised in assigning the bond as obligee of the same. The husband should have joined, or have authorized the transfer, to maintain the allegation, that the bond was “ duly .assigned to the said plaintiff.” It thus appears, that the plaintiff was the assignee of the legal right of Ellen W. Cook, by virtue of an act performed by her in conjunction with another who had acquired an interest, but not separate and independent of her, and the assignment was of the same interest of the same obligee, though she had acquired a new appellation by marriage.

We think the mode of averring the assignment was quite sufficient, and indeed it is prudently advised by Mr. Chitty.

The judgment of this Court is, that the nonsuit be set aside and a new trial ordered.

O’Neall, Whither and Glover, JJ., concurred.

Wardlaw, J., absent.

Motion granted.  