
    James Thompson vs. William Malone.
    
      Practice — Amendment— Unnegotiable Note.
    
    In an action by the assignee on an unnegotiable note, plaintiff must style himself, in the -writ, assignee of the payee, and, if he does not, he cannot amend, for there is nothing to amend by.
    An order granting leave to amend generally, without stating in what particular, is, it seems, irregular.
    BEFORE MUNRO, J., AT UNION, FALL TERM,’1860.
    The report of his Honor, the presiding Judge, is as follows : ...
    “ The plaintiff sued as assignee of an unnegotiable note. After the plaintiff had closed his case the defendant’s counsel moved for a nonsuit, on the ground that,’although the plaintiff had styled'himself assignee in the writ,-he had not styled himself assignee of the payee of the note, in conformity with the requirements of the Act of the Legislature on •that subject. After I had announced my intention to overrule the motion, and to instruct the jury that the plaintiff was entitled to recover, leaving the defendant at liberty to renew his motion for a nonsuit in the Appeal Court, it was suggested by the defendant’s counsel that the better course for the plaintiff’s counsel to pursue would be to continue the .case, and amend his pleadings. This suggestion was adopted ■by the plaintiff’s counsel, and the case was continued. On. the last day of the term, the plaintiff’s counsel moved for •leave to amend his pleadings, and submitted an order to that effect; it was resisted by the defendant’s counsel, upon grounds similar to those set forth in the grounds of appeal.
    
      “ I signed the order.”
    The defendant appealed from the order granted by his Honor, giving the plaintiff leave to amend the pleadings, on the grounds:
    1. Because the order is too vague, containing no specification as to tbe amendment proposed to be made.
    2. Because the order, being general, would entitle the plaintiff to amend his writ; which leave the Court had no power to grant, there being nothing to amend by.
    3. Because the defendant would be entitled to plead to the declaration, if amended, and provision should be made in the order to that effect.
    
      Dawhins, Gfadberry, for appellant.
    
      Thomson, contra.
   The opinion of the Court was delivered by

Johnstone, J.

The statute of 1798, 5 Stat. 330, giving the assignees of bonds and unnegotiable instruments the right to sue in their own names, rejecting redundancies, is in the following terms:

“ The assignee of a bond, note, or bill, may bring an action for the recovery of the same, in his own name, (styling himself, in the writ, the assignee of the obligee in the said bond, or the payee of said note or bill.)” , .

The writ in this case not conforming to the requirements . of the statute, there was nothing by which the proceedings could be amended; and the order of amendment was erroneous.

Even if there had been any thing to amend by,' a general order for amendment, not specifying or describing the amendment to be made, would have been improvident.

It is therefore ordered that the order for amending the proceedings in this case be set aside.

Motion granted.

O’Neall, C. J., concurred.

Motion granted.  