
    Ira M. Harrel vs. Samuel D. Petty.
    
      Discount — Judgment—Assignment.
    In an action against A he cannot set up as discount a judgment recovered in the name of B for the use of A.
    A judgment must be assigned in writing or the beneficial owner cannot sue upon it in his own name or plead it in discount.
    BEFORE MTJNRO, J., AT DARLINGTON, SPRING TERM, 1858.
    Tbe report of bis Honor, tbe presiding Judge,’is as follows:
    “ This was a summary process on a note payable to one W. L. Morse or bearer, and transferred to tbe plaintiff after it became due.
    
      “ Tbe defendant offered in discount, a judgment rendered in tbe summary process jurisdiction, on a non-negotiable note, executed by tbe said W. L. Morse in favor of Leitcb & Carrington, and by them transferred to tbe defendant Petty without a written assignment, and suit brought thereon in tbe name of tbe payees, to tbe use of said Petty. W. L. Morse’s insolvency was fully established.
    “ I rejected tbe discount.”
    Tbe defendant appealed, and now moved this Court for a new trial.
    1. Because bis Honor held that tbe defendant’s demand against tbe payee of tbe note, was not available, though tbe note was'transferred to plaintiff after its maturity.
    2. Because bis Honor held that tbe discount offered by tbe defendant was not a legal demand and could not therefore avail him, even in tbe summary process jurisdiction.
    
      Spain, Norwood, for appellant.
    Plaintiff bad notice' of judgment of Leitch & Carrington vs. Morse, and of course tbat Petty was in fact tbe owner of said judgment. Tbe note was not negotiable, yet tbe judgment tbereon was assigned to defendant on its face. Morse owed tbe money. To wbom but defendant? Wbo else could receipt for it? He is insolvent. Tbe transfer to plaintiff is a fraud and ought not to be sustained. Libbetts vs. Weaver, 5 Strob. 144; Jeffs vs. Wood, 2 P. Wms. 129; Sexton vs. Gee, 1 Hill 378. ISguities are regarded. How else could tbe drawer of a note payable . to bearer transferred after due avail bimself of discount against tbe payee, action being in tbe name of tbe legal owner and other than tbe payee ? Sec. 2, Discount Act, 4 Stat. 76.
    
      Moses, contra.
   Tbe opinion of tbe Court was delivered by

Whitnbe, J.

A discount is in tbe nature of a cross-action in which tbe defendant is tbe actor, and by him everything must be proved necessary to maintain bis cross-action.

By our Acts of tbe Legislature, 1798 and 1816, judgments and unnegotiable notes are made assignable so far as to enable tbe assignee to sue in bis own name, which he could not do at common law. Burton vs. Gibson, 1 Hill, 56.

Such notes cannot be transferred by delivery only. Tbe assignment must be in writing. Smith vs. Lyon, Harp. 334; Gilchrist vs. Leonard, 2 Bail. 135. Hence in tbe latter case a sealed note was not allowed to be set up in discount because not thus assigned: proceeding on the doctrine, that even though it might be regarded as an equitable assignment, this Court would only take notice of the legal right.

Again, in Bishop vs. Tucker, 4 Rich. 178, where one being sued and had;possession of a sealed note the discount was not allowed because it had not been actually assigned before the plaintiff’s writ issued. The same doctrine must be held in reference to judgments, and appellant’s motion must consequently fail. In this case the original suit could only have been maintained in the name of Leitch & Carrington. So too of a second suit upon the judgment, whether as an original or cross-action.

The Court has gone far to sustain the equities of the party to such a proceeding but never so far as now asked. The embarrassments of such a practice are readily suggested.

The motion for a, new trial is dismissed.

0’Nea.ll, 'Wakdla.w, Glover and Munbo, JJ., concurred.-

Motion dismissed.  