
    Edmund Ware vs. Robert Key.
    Ail assignment of a chose in action not negotiable, has always been con? sidered by our court as a letter of attorney to the assignee; the asr signee, or holder of one that is negotiable, may therefore elect to regard himselfin that character or sue in his own name.
    ; Tried at Abbeville, Spring, 1823.
    THE note on which this action was founded, was drawn by the defendant and payable to the plaintiff, or bearer.
    
    It appeared from the evidence that the plaintiff had passed the note by delivery, to Wm. Powell for a valuable consideration. The action was brought by the executors of Powell, who died before the commencement of this lection, who were now prosecuting it. This being brought in the name of the plaintiff, was evidently the result of some mistake or inadvertence. It was well known to the plaintiff that this action was carried on in his name, and he never interposed any objection to it.
    When the evidence on the part of the plaintiff was closed, the defendant moved for a non suit on the ground that the action would not lie in the name of the plaintiff, as he bad passed the note in the manner above mentioned.
    The piesiding Judge" was ofopinion that tbeaction might be maintained in the name of the plaintiff with his consent, and that this might be presumed from his knowledge of, and acquiescence in the proceeding. But that the plaintiff, (who was-then present,) might, if he thought proper, suffer a nonsuit. He declined doing so, and the motion was refused.
    A verdict was found for the plaintiff, and the motion for a non suit was renewed in this court on the same ground.
   Mr. Justice Johnson

delivered the opinion of the court :

The general rule is that an action can only be maintained in the name of him in whom, by the terms of the contract, the legal interest is vested, (1 East. 497. % Term 711.) Upon this principle, choses in action not being assignable at common law, actions on them could only be maintained in the name of the original parties, (1 Cbitty on Pleading, 10-11,) notwithstanding the actual interest had been passed by assignment, delivery, &e. And it is only under the several legislative provisions on this subject, that the assignees and holders of choses in action, are permitted to bring actions in their own names, and none of these contain any provisions'which take away the right to proceed according to the rule of the common law.

Our courts have always regarded the assignment of. a chose in action, not negotiable as. aletter ofattorney to the assignee. The assignee or holder of one that is negotiable, may therefore elect to regard himself in that character or sue in his own name under the authority of the statutes and acts authorizing it.

Noble ¿y Wardlaiu, for the motion.

Downs, contra.

Superadded to this motion, was one for a new trial, on the ground that the defendant proved the pay n-ent. Tic's ground is clearly without support, as the preponderance of the testimony was against it.

The motion is refused.

Justices Colcock, Noll, Gantt, Richardson and Huger, ■concurred.  