
    
      J. J. Ferrall, assignee, v. James Paine.
    
    The assignee of a note, claiming the same under a deed of assignment, (good under our Act regulating assignments of debtors,) may sue on it in his own name, styling himself assignee.
    
      Before the Recorder, in the City Court of Charleston, July Term, 1847.
    RECORDER’S REPORT.
    This was an action of assumpsit against the defendant, as maker of a promissory note, in the following words:
    Charleston, March 1st, 1846.
    $134 53. On demand, I promise to pay to Martin Roddy & Son, or order, one hundred and thirty-four 53-100 dollars, value received.
    (Signed) JAMES PAINE.
    The note was without indorsement. The plaintiff claimed to recover, as assignee of M. Roddy & Son, the payees, and in his declaration alleged that M. Roddy, the survivor of M. Roddy & Son, who were co-partners, and to whom the note had been given, made an assignment of his estate and effects on the day of , 1845, to the plaintiff, according to the provisions of the Act of Assembly, in such case made and provided; and among other things, of the said promissory note, of which the defendant had notice. A non-suit was moved for, on the ground that the note, being pa)7able to the order of M. Roddy & Son, the plaintiff could not sustain his action on the note against the maker, without the indorsement or order of the payees. As there was no such indorsement, I held the plaintiff could not sustain his action, and granted the motion. Some statements were made by Mr. Northrop, the plaintiff’s attorney, as to the execution and terms óf the assignment by M. Roddy, the surviving co-partner of M. Roddy & Son, the correctness of which was. conceded by Mr. Kunhardt, defendant’s attorney, and is assumed by the Court in this opinion. The assignment expressly transfers to the plaintiff all debts, notes, bills of exchange, &c., and is understood, for the purposes of this case, as including the note now sued on.. But I think it clear, that to whatever extent the beneficial interest in the note in this case, or in the money mentioned in it, may be regarded as transferred to the plaintiff by this assignment, the right of action at law upon the note is not conferred by or deducible from that instrument, and that until the order or indorsement of the payees on the note itself, the right of action still remains in the original payees, or in M. Roddy alone, the surviving payee and co-partner. In Chitty on Bills, Am. ed, 1839, p. 252, it is said: “A bill payable to order of a certain person, or to that person or order, or to the drawer’s order, is transferí'able, in the first instance, only by indorsement; and if the beneficial interest be transferred, but if there has been no indorsement, the action must be brought in the name of the payee.” It is scarcely necessary to refer to authority to show that the very term, indorsement, seems to import a writing on the back of the bill or note itself: or that whether in full or in blank, the signature or the name of the payee, placed there by him or his authority, is essential to transfer the legal interest, or give a right of action to another, claiming by way of transfer through or from the payee. (See Chitty passim, 252, 253.) There may be some modification of the strictness of the rule, which is understood to require the indorsement to be in writing on the back of the bill or note, as it seems to have been decided in 16 East. p. 12, that an indorsement made upon the face of a bill would be held good; and in a later case, 5 B. & C. 234, that an indorsement written in pencil, would be sufficient. So too it would seem that both in. France, and, according to Chitty, in England, an indorsement in some cases, as for want of room on the bill itself, may be made on a paper annexed to the bill or-nóte, and called an allonge. All this, however, does not affect the plaintiff’s case, and is only referred to as more clearly showing what is understood in law by an indorsement. Some reference was made in the argument to the Act of 1798, 2 Faust, 214; but it is clear this, can have no bearing oil this case. That Act was passed to enable the assignees of bonds, notes or bills, not payable to order, or not negotiable, to bring suits in their own names. The note in this case is payable to order, and negotiable, and is neither included in the terms or spirit of the Act, nor within the mischief intended to be remedied by it. The Act of 1828, in relation to voluntary assignments, (under which the assignment in this case is alleged to have been made,) is also referred to, but it is not perceived that any of the provisions of that Act can affect the rights .or change the position of the parties in this case, so faj-as they are involved in this action.
    A motion was made to set aside the non-suit, on the ground that the plaintiff was entitled to maintain his action on the note in evidence, as assignee of the payee,
    Northrop, for the motion.
    Ktjnhardt, contra.
    
   O’Neall, J.

delivered the opinion of the Court.

I understand, from the Recorder’s report, that the assignment covered and conveyed to the plaintiff the note in dispute. There is no doubt, if the assignment were under a Commission of Bankruptcy, or under our Insolvent Debtors or Prison Bounds Acts, that the assignee could maintain the action. Why? Because, by law, the whole interest is in him. A voluntary assignment passes all the interest of the assignor; and since the Act regulating assignments of Debtors, (6 Stat. 365,) I think the assignee ought to be regarded as clothed with all the powers of an assignee under the Insolvent Debtors or Prison Bounds Act.

For such assignee, named and appointed by the debtor, and accepted by the creditors, is, to all intents and purposes, the same as an assignee by operation of law. Taking this view, the law of indorsement, on which the Recorder has based his judgment, has nothing to do with the case.

I think, too, that inasmuch as the assignment here conveys the chose which is assignable by one species of assignment, indorsement, so as to enable the indorsee by the Statute of Anne to sue on it in his own name, that it may be very well held, under our Act of ’98, (5 Stat. 350,) that the assignee so styling himself may sue in his own name. It is true that Act embraces only bonds, notes or bills not payable to order, or bearer, or not negotiable. The note here, on the death of one of the partners, could not be indorsed by the surviving partner, in the name of the firm, the payees. The note might therefore be regarded by the death of a partner as deprived of its general mercantile negotiability, although there is no doubt the surviving partner might sue on it and collect it, and might assign it. In this point of view, for the purposes of this case, it may be regarded as not negotiable, and falling therefore under the Act of ’98. I however do not mean to say that the survivor might not endorse the note, and thus charge himself as indorser. That I think is the law, and so far the note may pass by his writing of indorsement, as well as any other mode of assignment.

But the ground on which I mainly rest my judgment, is, that the legal right is in the plaintiff, and as such, if there be nothing in the law which prohibits him from suing in his own name, that he ought to be allowed to do so. There is nothing, unquestionably, in any case or principle, which prevents the assignee of a note, negotiable, from suing on it in his own name.

Untrammeled by precedent, and acting upon a cardinal principle of justice, that technical forms are not to be extended beyond settled rules, to the prejudice of right, I am prepared to say, that the assignee of a note, claiming the same under a deed of assignment, (good under our Act regulating assignments of debtors,) may sue on it in his own name, styling himself assignee.

The motion to set aside the non-suit is granted.

Richardson, J. Evans, J. Wardlaw, J. and Frost, J. concurred.

Withers, J. absent, from sickness.

Motion granted.  