
    Adlai Beard, Administrator of John B. Griffin, deceased, vs. Daniel Griffin.
    In every action at law, the plaintiff most show a legal title to the instrument sued on; and if he have none, he cannot recover on the instrument, although the defendant may have promised him to pay it.
    B. executed his bond payable to A., who died the holder of the bond ; on his death, C., who had been book-keeper of A., sold the bond without indorsement to T., to whom, while holder, B. promised, in the presence of G., to pay it; upon which, G. obtained it from T., and brought suit against B. upon it, in one count of the declaration alleging this promise by B. ; the latter plead want of title in G. to the bond : Held, that the facts sustained the plea the legal title was in the administrator of A., who alone could sue on the bond ; the promise of B. was a waiver of defence to the bond in the .hands of a legal holder; but did not dispense with proof of title in the holder.
    In error from the circuit court of Tippah county; Hon. Hugh R. Miller, judge.
    Daniel Griffin, in his declaration, describing himself as assignee of S. S. Tyer, filed his declaration in debt to the March term, 1846, of the Tippah circuit court, against John B. Griffin. The declaration in substance alleges, that John B. Griffin, on the 14th of February, 1840, executed his writing obligatory to one E. W. Andrews, for the sum in controversy; that Andrews, on the 15th March, 1840, transferred the same by delivery to Tyer, by means whereof it became Tyer’s property, and that defendant was liable to pay Tyer; that Tyer, in December, 1844, assigned and delivered the same to plaintiff, by which the defendant became liable to pay the plaintiff. The usual breach then followed. At the same term, the defendant demurred, the demurrer was sustained, and leave given plaintiff to amend his declaration. The amended declaration is similar to the first, until after the allegation of Tyer’s assignment and delivery of the writing obligatory to plaintiff, when it makes the additional averment that Andrews was dead at the time of the assignment by Tyer; that he died intestate; that no one administered; that defendant, on the day of Tyer’s in-dorsement, and frequently thereafter, promised and bound himself to pay the bond to the plaintiff, with full knowledge that the plaintiff was the holder of the bond; that by means thereof the defendant became liable to pay, and an action accrued to plaintiff to have and demand of and from, &c. Then followed the usual breach. There was but one count in either declaration, and each upon the writing obligatory. The defendant plead three pleas to the amended declaration; 1st, nil debet; 2d, that Andrews, in his lifetime, never sold, assigned'or transferred the bond to either Tyer or plaintiff; Sd, that at the commencement of the suit the plaintiff had no right, title or interest in the writing obligatory from Andrews, or from any other person to whom Andrews had sold, assigned, indorsed, or transferred the same. Both the latter pleas were sworn to. Defendant died, and Adlai Beard, his administrator, was regularly made defendant to the suit below. A verdict and judgment were rendered for the plaintiff; a motion for new trial was overruled, and bill of exceptions taken embracing all the testimony. On the trial, Tyer was offered as a witness, and proved that he bought the note of one A. M. Cowan in 1844; that Cowan was the book-keeper of Andrews,, who was a merchant; the note was given for a suit of military clothes bought by John B. Griffin of Andrews, whilst Cowan was acting as such agent; that Andrews died in the latter part of the year 1840, or early part of 1841. John B. Griffin, Cowan, and Andrews, all lived in De Soto county, in this state; John B. Griffin moved to Tippah county shortly after 14th March, 1840; that after witness bought the note of Cowan, he and the plaintiff went to see the defendant; that defendant said the note was just, and he would pay it if he could borrow the money; and that after witness and plaintiff left the defendant, witness sold the plaintiff the note for a full consideration. Jamieson, a witness for plaintiff, proved that the defendant bought two mules which he wished to pay the debt with, without himself being known in the transaction; that when the note was once presented by an agent of the plaintiff to the defendant for payment, the defendant answered evasively, and said after the agent left that he did not believe Cowan had come honestly by the note ; he believed Cowan was an old scoundrel, and had hooked the note out of Andrews’s office after his death.
    Jamieson also stated, that John B. Griffin said he would not pay the note, as it had now run out of date, but that he would give an ox for the note that it might not longer hang over him, which statements were made at the time he said that he had' doubts as to the manner in which Cowan, had obtained this paper.
    Beard, the administrator of Griffin, sued out this writ of error.
    
      H. W. Walter, for plaintiff in error.
    I. The plaintiff below had no legal title to the note sued on, to warrant his application to a court of law. No indorsement of the note was ever made by the payee, Andrews; and in fact the amended declaration discloses the death of Andrews, which rendered it morally impossible to procure such indorsement. This objection is fatal. Chitty on Bills, 252; Bennet el al. v. McGaughy, 3 How. 192; 15 John. R. 249.
    2. The fact that defendant pleaded instead of demurring, and' that a verdict was rendered, cannot help the matter. The statute jeofails cannot cure the defect. The cases of Reaves et al. v. Dennis, 6 S. & M. 89, and Leflore v. Justice, 1 Ibid. 385, are directly in point, and must settle this case. See also Walker’s Rep. 24, 74, 172, 349.
    3. The court below should have granted a new trial, there being no proof to support the verdict. It devolved upon the plaintiff below to show his title from Andrews to the note sued on. This he failed to do. The pleas of defendant are sworn to. Moore v. Anderson, 3 S. & M. 321; Netterville Boyd v. Stevens Pillett, 2 How. 642.
    
      N. S. Price, for defendant in error.
    1. The plaintiff below was the holder of the note; this raised a presumption of his right, which mere suspicion of want of title cannot overthrow. Sto. on Prom. Notes, 116, § 113; Chit, on Bills, 252.
    2. Being holder of the bond, and the promise being direct to the holder to pay him, there was no need of an indorsement from Andrews.
    3. The amended declaration was a count in debt upon the promise to which the bond was inducement; if defective in form it was not in substance, and the verdict must stand. Cole v. Harman, 8 S. & M. 562; H. & H. 591, § 11.
   Per Curiam.

This was an action of debt brought against the intestate of the plaintiff in error, upon a writing obligatory, made payable to one E. W. Andrews. Andrews died, and after his death, the writing obligatory was sold to one Tyer by Cowan, who had been the book-keeper of Andrews. Up to this time there was no indorsement of the instrument- — -it was not payable to bearer — nor does there appear to have been any administration upon the estate of Andrews. Tyer assigned the instrument to Griffin, who brought this suit upon it in his own name. It is in proof that the intestate admitted the justice of the debt, and promised to pay it to Tyer in the presence of Griffin before.the assignment. One count in the declaration avers this promise. One of the pleas denies that Griffin had any legal title to the instrument, or any right to maintain the suit. There were a verdict and judgment for the plaintiff. There was no objection to the admission of any testimony, and no charge asked of the court. After a motion for a new trial had been overruled, the evidence was embodied in a bill of exceptions, and the case brought to this court.

In every action at law, the plaintiff must show a legal title to the instrument sued on. The evidence in this case shows clearly that the legal title to the instrument never passed out of Andrews — there was no assignment by him, nor anything to divest his title. The plaintiff does not aver that he held title by assignment from the original payee, consequently the defendant could not be required to deny on oath, that the plaintiff was such assignee, since there was no averment to that effect. Of consequence, Griffin could not maintain this action. The verdict is therefore contrary to the law and the evidence, as the plea of want of title in the plaintiff is fully sustained.

The judgment must be reversed, and the cause remanded. Whether the plaintiff can hereafter maintain the action, is not for us now to determine. The promise of the decedent, as stated in the evidence, would have been binding on him to pay, if the plaintiff had held the title to the instrument. It was a waiver of any defence to the instrument, in the hands of a legal holder, who took it upon the faith of such promise; but it could not be held to dispense with proof of title. Otherwise one man might sue on the instrument, and another on the promise.

Judgment reversed and cause remanded.  