
    Walter &c. vs. Clark.
    October 28.
    Error to the Jefferson Circuit; Henry Pirtle, Judge.
    
      Assignment, proof of.
    
    Chancery.
    Case 176.
    on bill by as-ignee of a mutilation)to set it up and °bt?m decre® t^eVs^n-1™1’ raent, if dem-ed> D1”st be p ov
   .Chief Justice Robertson

delivered the opinion of the court.

Isaac Clark, as assignee of John Shaver, filed a bill in chancery against Jacob Walter and John Curry, alleging that Shaver had assigned to him a note executed by them in March 1819, for $136 50 cents, payable in sixty days, which by accident had been so torn and defaced as to be illegible; (but scraps of which he exhibited) and praying for a decree for the amount of the note. Walter, Curry, and Shaver, were prayed to be made defendants. The two former answered, and impeached the consideration. A supplemental bill was filed, stating simply that, since the filing of the original, Shaver had died, and Clark had become his administrator.

The circuit court decreed to Clark, $291 19 cents.

The decree is erroneous:

1st, According to the allegations of the bill, as much as $291 could not have been due.

2nd. The assignment was denied, and there was no proof of it.

Denny for plaintiffs.

3rd. As the suit was brought in his own right as assignee, Clark could not be entitled to a decree, as administrator of the assignor; and his supplement does not appear to have been designed to change the attitude of the parties, but merely to shew why the assignor could not be served with process.

4th. It was neither admitted nor proved that Clark was administrator, or that Shaver was dead.

Wherefore the decree is reversed, and the cause remanded, with instructions to dismiss the bill without prejudice.  