
    A. W. Harlan & al. vs. John Sigler.
    The statute making all notes negotiable cannot be applied to notes executed and assigned before the statute, and which were not, at the time of such assignment, negotiable.
    The statute may however have effect so far as to allow the assignee to bring suit in his own name. That applies solely to the remedy. It is mere matter of form and leaves the substantial rights of the parties untouched.
    This was an action of debt by petition under the stat of Jan. 25,1839. The petition states that the plaintiff held a bond on the defendants A. W. Harlan and Wm. Duncan, alias Aaron W. Harlan and William Duncan, in substance as follows:
    “ On or before the first day of April next we or either of us promise to David Hanes the full sum of one hundred and four dollars twenty five cents, as witness our hands and seals this 20th Nov. 1838.
    A. Wr. Harlan. (Seal.)
    Attest, J. W. McCarty. Wm. Duncan, Security. (Seal.)
    
      On which is the following assignment. “ Nov. 24,1838. I assign the within note to John Sigler, for value received. David Hames.”
    Whereby the plaintiff hath become the proprietor thereof, of which the defendant hath had due notice. Yet the same debt remains unpaid, wherefore he prays judgment for his debt and damages for the detention thereof of the same, with his costs. S. W. Summers, Atty. for plff.
    Plea non est factum.
    The jury gave a verdict for the plaintiff. Whereupon the defendants moved an arrest of judgment for the reasons following:
    1st. The suit, is brought in the name of the assignee on a note or sealed instrument not negotiable.
    2d. The petition does not show a cause of action in favor of the plaintiff on which this court can render judgment. Motion overruled and bill of exceptions filed, containing the same exceptions as moved above for arrest of judgment. The same reasons were also assigned for error, their order being reversed.
    Finch and Learned, for plffs. in error.
    Rich and Weed, for dft.
    The counsel for the plaintiffs cited 1 Ch. PI. 15 — 1 Sound. PI. <$• Ev. 141, 142, 144 — 1 Johns. Big. 52, 53.
    The counsel for defendant relied upon the statute of Iowa relative to promissory notes, p. 381. — Maine vs. Hale, 12 Wheat. 358.
   By the Court.

Mason, Ch. Jus.

From the transcript of the record in this case it appears that the defendants below executed their sealed note or single bill to one David Hanes, who endorsed the same over to the defendant in error. At the time of the execution and assignment of the note it was not negotiable, but afterwards, and prior to the commencement of this suit, a statute was passed rendering such notes assignable, and authorizing the assignee to sue in his own name. Suit was instituted in that manner accordingly, and a judgment recovered in the District Court, to reverse whicn the case has been brought here by writ of error.

Two causes of error are assigned; the first that the petition (by which the suit was commenced) does not show such a cause of action in favor of the plaintiff as to entitle him to recover. In examining the petition we find it to correspond with the form prescribed in the statute, the only observable defect being in the statement of the names of the defendants. They are described as A. W. Harlan and Wm. Duncan, alias Aaron W. Harlan and William Duncan. This is not the proper manner of identifying the entire with the abbreviated name. Still as the intention is evident, no objection can be sustained in the present stage of the proceedings.

It is probable however, that the error intended in the first assignment is substantially the same as that embraced in the second, which is that the note was not assignable in such a manner as to vest in the assignee the power to sue in his own name. The law passed subsequently to the assignment could not invade the rights of either party as they then existed, although it .might modify the remedy by which those rights were to be enforced or protected. Had the present law been in force prior to the assignment of the note there could have been no question as to the regularity of the present proceedings. It only remains to enquire whether the statute would so far operate upon this case as to justify the institution of the suit in this form.

Under the law as it existed at the time this note was assigned, the assignee might have brought suit in the name of Hanes for his own use. In such a case the defendants below might have availed themselves to a certain extent of the equities existing between themselves and Hanes. Under the new law their rights in this respect would have been very different. That feature of the law therefore cannot be allowed to operate in this case, since it would impair the obligations of a pre-existing contract.

But so far as the new law authorized the assignee to bring suit in his own name, we see no objection to giving it effect. It applies solely to the remedy. It merely declares that Sigler’s name may stand alone as plaintiff instead of the suit commencing in the name of “Ilanes jor the use of Sigler,” the equities remaining as before. It is a mere natter of form, and leaves the substantial rights of the parties wholly untouched.

We think there was no error in the District Court, and the judgment will accordingly be affirmed.  