
    Johnson, use of Stone v. English.
    1. Endorser of a note cannot maintain an action against the maker, for the use of the endorsee, his endorsement appearing on the note.
    2, In such case, the presumption that the endorsee has no interest in the note is rebutted and destroyed.
    William Johnson, for the use of Thomas Stone, sued Joshua English in the Circuit Court of Dallas county, in assumpsit, on a promissory note made by English to Johnson.- The note was produced with the following endorsement: “ I assign the within note to Thomas Stone, value received, December 1st, 1823. William Johnson.” The plaintiff took a bill of exceptions at the trial, which was sealed by Judge Saffold, then presiding, shewing that the said note, so endorsed, was offered to be read to the jury : to which the defendant’s counsel objected, on the ground that the endorsement shewed the interest to be in Thomas Stone, and the plaintiff refused to strike it out. No other evidence was offered by either party. The Court refused to permit the note to be read to the jury. The plaintiff took a nonsuit, and brought the case to this Court to revise said decision and assigned the same as error.
    Hitchcock, for the plaintiff.
    The Supreme Court of the United States have decided, 
       that when a note comes back into the possession of an endorser, he may maintain an action on it without striking out the endorsement. A writ of error will lie on a judgement of nonsuit when costs are allowed.
    Pickens, for defendant.
    
      
      03 wheat.r.i$2.
    
   JUDGE TAYLOR

delivered the opinion of the Court. By a former decision of this Court it was determined that tbe bolder of an instrument of this bind would be presumed to be tbe owner until the contrary appeared* jjere the contrary does appear by the acknowledgement °f the plaintiff in instituting the suit for the use of the endorsee. The judgement must' be affirmed.

•By JUDGE CRENSHAW.

By the common law, a chose in action could not be assigned so as to. authorize the assignee to maintain an action at law in his own name ; but the assignment operated as an authority for the assignee to sue for and recover the money in the name of the payee or obligor. The act of 1812, which authorizes the assignee to, sue in his own name, does not in this respect materially alter the common law. It still leaves the assignee at liberty to proceed as at common law in the name of the payee or obligee. But without recurring to the common law, I hold that the plaintiff was not bound to strike out the endorsement, and thereby lose the security of the endorser, in order to get the note as evidence before the jury. I am unable to learn how the striking out of an endorsement, or the alteration of an instrument of writing, could make it better and more competent evidence than it was before. If it could be stricken out, and thereby rendered admissible, the Court should have considered that as done which ought to have been done. We also have a statute which authorizes an action to be brought in the name of one person for the use of another, and another statute which makes the person for whose use it is brought liable for costs. If the endorsee, suing in the name of the payee for his own use, does not come within the provision of these statutes, I do not. well know for what kind of case they were intended to provide. W’hen the record shews that- the action was brought for the use of the en-dorsee, as far as relates to the admissibility of this testimony, it is the same as if the action had been brought in his own name. In either case, a recovery would bar a second action against the defendant who was the’maker of the note.

I am also of opinion that a writ of error lies from a judgement of nonsuit; for as to that action, the judgement is final and carries costs.

In the case of Dugan against the United States, the Court expressly lays down the law to be, “that if any person endorses a bill of exchange to another, whether for value or for the purpose of collection, and shall come to the possession thereof again, he shall be regarded, unless the contrary appear in evidence, as proprietor; and shall recover, notwithstanding ’here may be one or more endorsements in full, and whose names he may strike from the bill or not, as he may think proper. This authority applies directly to the present case, and shews that though the action is brought in the name of Johnson, (not material for whose use,) Johnson shall be considered the legal proprietor, and may maintain the action, without striking out his endorsement to Stone.

To consider the questions on any ground, I think the evidence was admissible, without striking out the endorsement; and that, therefore, the judgement should be reversed and the cause remanded. Judgement affirmed.

Judge Saffold not sitting. 
      
       Pitts vs. Keyser & Keyser, Ante 154.
     
      
      «Raws Ala. 69.
     
      
      6 Laws Ala. 70.
     
      
      
         Acts of 1824, p, 12.
     
      
      
        as Wheat,R. 182.
     