
    Samuel Cole vs. Samuel G. Bodfish.
    If a bond for the conveyance of land upon certain conditions be assigned by the obligee, and the obligor upon the back of the bond agree under his hand and seal with the assignee by name, to' extend the time of performance limited in the condition of the bond; an action thereon cannot be supported by the assignee in 'his own name.
    
    According to the practice in this State, a nonsuit maybe ordered, by the Court, if .upon'the plaintiff’s own showing, his action is not sustained, subject however to his right to except to the opinion of the Judge.
    Exceptions from the District Court for ■ the Middle District, Redington J. presiding.-
    The action was debt, commenced February 24, 1836. To support the action, the plaintiff offered in evidence a bond from the defendant to'one Jabez Sawyer, dated June 27, 1835, in' the penal sum of $2000, conditioned to be void on the conveyance of a tract' of land- described in the bond, if Sawyer should within thirty days pay Bodfish, $ 1225. ' On the back of this bond were written: — “Fora valuable consideration paid to" me in hand, I hereby transfer all my right, title and interest to the within bond to S. E. Drew óf Monson¡ June 29, 1835. Jabez Sawyer.”
    
    “ For a valuable consideration, paid me by Samuel Cole, I hereby relinquish all my right and title to the within bond. June 29.
    
      <‘S.E.Drew.”
    
    “ July 25,1835. — I hereby agree with Samuel Cole to extend this bond to the 26th of August next, for value received. Wit-, pess my hand and seal. S. G. Bodfish, [u. s.]
    •“ Attest, Orin Morse.”
    
    
      The plaintiff also read in evidence a receipt, not under seal, of Which a copy follows. “August 24, 1835. — Rec’d of S. E. Drew for Samuel Cole one hundred dollars in part of eight hundred dollars, the consideration in a deed to said Cole of this date from me. The above hundred dollars are received on a bond given to Cole by me for the land deeded to him by me this day, which deed is now in the hands of Joseph Stockbridge. S. G. Dodfish.” The plaintiff offered to show by parol testimony, that the defendant had admitted the plaintiff to be the owner of the bond, and that the plaintiff had performed the conditions of it necessary to entitle him to a deed from Bodfish. This testimony was not admitted. The Judge ruled, that upon the evidence offered by the plaintiff in the case, the action could not be maintained in the name of Cole, and although the plaintiff wished to go to the jury, directed a nonsuit. The plaintiff filed exceptions. Questions in relation to .the admissibility of testimony appear in the exceptions, but are not noticed, as the opinion of this Court was not influenced by them.
    
      Wells, for the plaintiff,
    contended, that there was a sufficient contract, under seal, from Bodfish'to Cole to enable him to maintain the action in his own name. The Judge should have permitted the jury to pass upon the evidence, instead of deciding the case himself by ordering a nonsuit. Here the plaintiff objected to the nonsuit, and in such case, the Judge cannot order it. 'Mitchell &/• al. v. JSew-England Marine Ins. Co. 6 Pick. 117; Smith v. Frye, 14 Maine B. 457.
    
      Tenney, for the defendant,
    contended, that the Court have a right to order a nonsuit, when by his own testimony, admitted in its full extent, the plaintiff cannot support his action. In this case Cole has no right, by his own showing, to maintain the action in his own name.
   The opinion of the Court was drawn up by

Weston C. J.

The defendant executed a bond to Jabez Sawyer, upon certain conditions set forth therein. It was an instrument not negotiable in its character, so as to enable an assignee to bring an action in his own name. It had a penalty, and was subject to- chancery. Assuming that the obligor did, subsequent to the date of. the bond, and after'the beneficial interest had been assigned to the plaintiff, by.an indorsement th'ereon, under his hand and seal, obligate himself to the plaintiff by name, to’ extend the time limited in the condition of the bond, a question arises, whether it would authorize the plaintiff to bring an action- thereon in his own name.- ' ■

Where a chose in action is; assigned, such assignment may constitute a sufficient consideration, to sustain an express promise, on the part of the debtor, to the' assignee, so as to enable "the latter to maintain assumpsit in his own name. , But this is based upon the' new promise. If the obligor should, by ..express contract under his'Seal,' undertake to oblige himself to fulfil the bond to the assignee, such undertaking would be sufficient to sustain an action of covenant broken, if-the obligor failed to perform. But in, this case',' by the indorsement, the defendant only extends, for the benefit of the plaintiff, the time limited in the bond. And it may be doubt-' ful, whether any other inference can be drawn from it. It would seem, that in all other respects the instrument remains unchanged. It may have the effect to recognize the assignment to the plaintiff, so as, tq protect his equitable interest from arty interference by the original obligee.’ But an action must be brought in his name, if its becomes necessary to enforce the rights'of the assignee.

According to our practice, a nonsuit may be ordered by the” Court, if 'upon the plaintiff’s own showing his action is not sustain-" ed, subject however to his right to except to the opinion of the" Judge. Sanford v. Emery, 2 Greenl. 5; Perley v. Little, 3 Greenl. 97. Regarding every thing' as proved, upon 'which the plaintiff relied, in our judgment he cannot by law support the action in his own name; so that the nonsuit must be confirmed. It becomes unnecessary therefore to determine the competency of a; part of his testimony, or the ruling of the Judge upon that point.

Exceptions overruled.  