
    Trezevant vs. McNeal.
    In an action instituted in the name of Trezevant on a covenant executed by McNeal to Trezevant, McNeal pleaded that Trezevant had assigned and transfer-fed the covenant to one G. H. Wyatt, and that Wyatt was the true owner thereof; Trezevant demurred: Held by the court, that the demurrer admitted the fact, that plaintiff had no interest in the note, and the suit was, therefore, wrongfully prosecuted : Held, that a replication by the plaintiff, averting that the suit was prosecuted for the benefit of Wyatt, would have been a good answer to defendant’s plea.
    L. C. Trezevant instituted an action of covenant in the circuit court of Fayette county, on the 27th January, 1840, against A. McNeal, on an obligation in the following words: “$5,5Q0.
    “For value received, we promised to pay Lewis C. Trezevant five thousand five hundred dollars, on or before the 1st day of January, 1836, in current bank notes. Witness our hands and seals, this 1st day of January, 1836.
    Alexander McNeal, [Seal.]
    H. Thornton, [Seal.]”
    McNeal craved oyer of this obligation, and set it out as above set forth and pleaded, that “after the making of said covenant, to wit, on the 1st day of September, 1836, at the county aforesaid, the said plaintiff endorsed, assigned and delivered the said covenant to a certain George H. Wyatt, who from thence and ever since said assignment, was and now is the holder of said covenant, and the legal owner of the same, and that the same never has been transferred or re-delivered to the said Lewis C. Trezevant since the said assignment, but is and was at the commencement of this suit the property of said George H. Wyatt.”
    To this plea the plaintiff demurred, and at the January term, 1841, Dunlap, judge, presiding, overruled the demurrer and gave judgment for the defendant.
    From this judgment the plaintiff, Lewis C. Trezevant, appealed in error to this court.
    
      Potts, for plaintiff in error,
    contended that the demurrer to defendant’s plea, ought to have been sustained. It has been repeated-lJHicided in this court, that a suit may be maintained, both upon fjHRiable and unnegotiable instruments, in the name of one person for the use of another. See 3 Hay. 105: Vincent vs. Groom} 
      1 Yerg. 430: Burton vs. Dejs, 4 Yerg. 4: Cage vs. Foster, 5 Yerg. 261. None of these cases have fully decided the question contended for in this case, to wit, that the transferee of a covenant made assignable by the act of our legislature may maintain an action in the name of the assignor, yet the general reasoning of the court seems applicable. In support of this position, see Raymond vs. Johnson, 11 Johnson, 488: Alsop vs. Cains, 10 Johnson, 400. In the first case it is decided, that when'an action is brought in the name of the assignor by the assignee, the assignee cannot avail himself of the want of interest in the plaintiff; the very case now under consideration. It is decided in Gage vs. Randall, 15 Wend. 640, that the holder of negotiable paper may bring an action upon it, in the name of a person having no interest in it, and that it was no defence, that the suit was brought without the knowledge or authority of the nominal plaintiff.
    
      A. Miller, for defendant,
    cited and commented upon 15 John. Rep. 249: 15 Wend. 640: 11 Wend. 27.
   Green, J.

delivered the opinion of the court.

This is an action of covenant upon a writing obligatory, executed by the defendant to the plaintiff, for five thousand five hundred dollars, in current bank notes.

The first plea of the defendant alleges, that before the commencement of the suit, the plaintiff assigned the said covenant to one George H. Wyatt, and delivered the covenant to him, and that he is the true and legal owner and possessor thereof. To this plea, the plaintiff demurred.

There were several other pleas to which there were demurrers; some of which were overruled, and some of them sustained; but it is unnecessary to notice any of them, as the decision in the cause must turn upon the question which is raised upon the first plea above set out. The court gave judgment for the defendant, from which the plaintiff appealed in error to this court.

The plea in this case states, that the covenant was assigned to Wyatt, and delivered to him, and thus sets out an endorsement in full. In such case the legal interest of the payee is transferred to the person named in the assignment. Chitty on Bills, 116, 117, 118: 15 John. Rep. 249.

It is true, this does not preclude the legal owner from sueing in the name of the payee for his benefit. 11 John. Rep. 52: 15 Wendell Rep. 640. But it must appear that the suit is for the benefit of the legal owner. And that fact should have been replied to in the defendant’s plea, and would have constituted a good answer to it, 11 Wend. Rep. 27: 15 Wind. Rep. 641. But instead of replying, the plaintiff has chosen to demur. The fact is thus admitted, that the plaintiff has no interest in the covenant sued on; and we are left to the inference, that he is prosecuting the suit for his own benefit. This cannot be done. 11 Wend. Rep. 27: 15 Wend. Rep. 641.

The judgment must be affirmed.  