
    JOHN KILLIAN, ADMINISTRATOR, &c., v. JAMES CARROL.
    One, who is an equitable owner of a bond, but to whom it has not been legally indorsed, has not such an interest in it, as will enable him to support an action of trover.
    The case of Fairly ns. McLean, 11th Ire. 158, cited and approved.
    Appeal from the Superior Court of Law of Haywood County, at the Fall Term, 1851, his Honor Judge Battle presiding.
    This was an action of Trover brought to recover the amount of a bond, alleged to belong to the plaintiffs intestate, and which had been converted by the defendant. It appeared that the interest in the bond was, in fact, in the intestate, but the bond had never been legally transferred to him.
    
      Under the instructions of the Court, a verdict was found for the plaintiff, and from the judgment thereon the defendant appealed.
    
      N. W. Woodfin for the plaintiff.
    
      J. Baxter for the defendant.
   Nash, J.

We do not concur with his Honor who decided this case below. There can be no doubt, that the defendant, throughout the transaction, has acted most dishonestly in entire disregard of any principle of moral duty ■ — but sitting in a court of law, we can enforce none but legal obligations. - It is fully admitted, that the plaintiff has no legal right to the bond appropriated by the defendant. The defendant purchased a bible at the sale of his personal property, and after some time the note was found in it — who put it in there or where or when, is not stated if known, but it is claimed against the plaintiff, as the administrator of Jones, simply upon the ground, that it was so found. It is true, when shown to the witness, Enlow, by the defendant, the latter was informed that it belonged to the intestate, but without adverting more particularly to the position which this witness by his own statement occupies in relation to the dishonest transaction, it is sufficient to say, that the note is not endorsed by the person to whom it was made payable, and in whom the legal title still remains. In the opinion of his Honor, there is error in charging the jury, that, if the facts were as insisted on by the plaintiff he was entitled to a verdict.

The judgment is reversed and a venire de novo awarded.

My brethren instruct me further to say, that the defendant did not tortiously take possession of the note under the circumstances of the case.

Ruffot, C. J.

Enlow, the obligor in the bond, stated that it belonged to the plaintiff's intestate, and the instruc-lion, prayed by the defendant, admits the equitable right loJit to be in the intestate, and therefore it is to be assumed that the intestate was the equitable assignee of the bond without an endorsement to him. But admitting these facts, it is still true that the intestate had no such ownership or interest in the bond, as can be recognized at law, so as to enable him to bring trover or any other action ; because the property in a bond can only be transferred in the manner prescribed by the statute. Fairley and McLean, 11 Ire, 158. That being so, and there having been no contract between the intestate or the plaintiff with the defendant respecting the bond, the defendant has done no such legal wrong to the possession of the plaintiff or to his right of property, as will sustain the action. Therefore I agree with my brother Nash, that there must be a venire de novo.

Per Curiam. Venire de novo awarded.  