
    Langham to use of Ortley, vs. Lebarge.
    In a suit by petition in debt, brought by the payee of the noto, to the use of the assignee, the plaintiff cannot amend by striking out the endorsements, with a view of showing himself the legal owner of the note, as the form of the action declares that he is not the leg-al owner of tho noto. (Seo Jeffries v. Oliver, 5 Mo. R. p. 433.)
    
      Hamilton for Plaintiff.
    
    1. This action was well brought in the name of the payee, as nominal plaintiff, to the use of F. D. Ortley. Waggoner vs. Colvin, (11 Wendell 29.) 15 Johns. 247; 20 ib. 367; and 7 Cowen 176. 7 Greenleaf 28. 9 Mass. 423. 3 Greenleaf 73. 15 Mass. 534. 2 Breeze 227.
    3. The payee and holder of a negotiable note, with an endorsement written thereon to a third person, can, without a re-assignment or receipt from the indorsee, maintain an action in his own name. 3 Wheat. 172. 3 Wash. 404. 1 Breeze 288,289.
    3. The plaintiff’s motion to amend by striking out the indorsements, so ás to remove the objection started by the court, should have been allowed.
    
      Bent for Def’t. in error.
    
    It is submitted that the court did not err in overruling th® motion to set aside the nonsuit. Decisions Sup. Court Mo. from 1837 to 1839. Jeffries v. Oliver to use of Bryans, page 433.
    Error to St. Louis Circuit Court.
   Opinion of the Court Delivered by

Napton Judge.

This was an action brought by Langham, founded on a-promissory note given to Langham by Lebarge, and by Langham directed to be paid to H. K. Ortley & Co., and by II. K. Ortley & Co. ordered, bv indorsement, to be paid to Briley, ^he suit was instituted in the name of Lang-ham, the payee, to the use of Ortley, the holder.

petition* Rebt, brought of rtie PnItT to the use of tile pkintiff’ by^striking1 ^ •out the en-;r showing- himself the leg-al owner of the note, as the form of the action declares, that he js not the legal twner of the note. (See Jeffries v. Oliver, 5 Mo. R. p, 4 33 )

The case of Jeffers v. Oliver, 5 Mo. Rep. 433, is exactly p0irit, and decides the only question arising in this case, except that raised in the circuit court in relation to the right ptahtiiffi Langham, to strike out the endorsements, and so regulate them as to show himself the holder. This, it is obvious, he could not do, for the form of his action declares that Langham is not the holder; or legal owner, of the note, but F. D. Ortley, to whose use the suit is brought,

There, was therefore, no error committed bythe.court, either in directing a non suit, or refusing leave for the plaintiff to amend. Judgment affirmed.  