
    Nicholson & Company v. Whaley.
    1. Where a promissory note and mortgage upon personal property are combined together in one instrument, the promise being to pay the money to a named payee or bearer, and the mortgage portion of the instrument being in these words: “ To further secure the payment of this note I hereby mortgage the following described property,” etc., one who is not the payee named in the paper cannot foreclose the mortgage in his own name as holder
    ■ and owner thereof without having a written assignment of the same. Code, §1996; Planters Bank v. Prater, 64 Qa. 609.
    2. When the execution under such a foreclosure has been levied on the mortgaged property, a motion by a claimant thereof to dismiss the levy, on the ground of the above indicated objection to the foreclosure, should be sustained unless by appropriate amendment the objection is removed.
    3. Affidavits to foreclose mortgages being amendable as ordinary declarations since the act of October 5th, 1887 (pamphlet p. 59), and section 3486 of the code declaring that when it becomes necessary for the purpose of enforcing the rights of a plaintiff he may amend by substituting .the name of another person in his stead suing for his use, proceedings to foreclose a mortgage on personalty instituted by the real owner of the mortgage are • amendable by inserting as party plaintiff the name of the mortgagee for the use of such owner..
    August. 27, 1892.
    Mortgage foreclosure. Amendment. Before Judge ■ Pish. Webster superior court. October term, 1891.
    Claims were interposed by Ada Wbaley to the levy of executions in favor of Nicholson & Co. against Harris. By consent the cases were tried together, and on motion of the claimant the: levy was dismissed, because the mortgages from which the executions issued by foreclosure showed upon their face that they were given to pai’ties other than Nicholson & Co., who foreclosed them, and could not be foreclosed in the name of Nicholson & Co., without written assignment of the party or parties to whom they were made. They were mortgages on personalty, made to the Savannah Guano Co., .and its assigns, and the Atlanta Guano Co., and its ¡assigns, to secure promissory notes payable to those •companies or bearer (each note, together with the mortgage securing it, constituting one instrument). To the ruling dismissing the levy, and to the refusal of the court to allow the foreclosure “to be amended for the use of said D. W. Nicholson & Co.,” the plaintiffs excepted.
   Judgment reversed,.

J. B. Hudson and Port & Watson, for plaintiffs.

W. H. Kimbrough, E. A. Hawkins and Butt & Lump-kin, contra.  