
    Lydia Dowell v. Shepherd Brown et al.
    The plaintiff in an action at law upon a promissory note, must have the legal title at the period of the commencement of the suit, to enable him to recover; it will not do, if he have it merely at the trial.
    Therefore the holder of a note not indorsed, payable to order, who was not the payee, and who brought a suit thereon against the maker, alleging an indorsement by the payee to himself; and after the institution of the suit, and before the trial, procured the indorsement of the payee to himself, 'cannot maintain the action, for the want of the legal title when the action was brought.
    Nor could such a note be given in evidence in such suit under the common counts. While the holder of negotiable paper is allowed in some instances to recover thereon under the common counts, yet it is only in cases where he could recover, had the action been brought specially upon the paper itself.
    A mere equitable right cannot be recovered under the common counts; the plaintiff, as in other actions at law, must have a legal right.
    In error from the circuit court of Warren county; Hon. George Coalter, judge.
    Shepherd Brown and Joseph H. Johnston, on the 17th of April, 1846, sued Lydia Dowell upon the following note, viz.:
    “ Vicksburg, Oct. 4th, 1843.
    “ Twelve months after date, I promise to pay to S. S. Prentiss or order the sum of five hundred dollars, for value received.
    “ Lydia Dowell.”
    The declaration alleged that “ the said S. S. Prentiss after-wards, &c., caused the said promissory note to be indorsed and transferred to the plaintiffs.”
    There was also a count for money had and received.
    The case was called for trial on the 16th of April, A. D. 1847; when it was proved that the note, before the suit was brought, had been delivered by the agent of the defendant, with the assent of the payee, to the plaintiffs, in settlement of a debt of like amount held by the plaintiffs against the payee, but had not been indorsed to the plaintiffs at the time of delivery, and was not indorsed at the time the suit was brought; but that the payee, on the suggestion made to him by the counsel for the plaintiffs, that the note when delivered had not been indorsed, had since the last term of the court indorsed the note to the plaintiffs without recourse. It was also in proof, that the note was transferred by delivery to the plaintiffs, for the note of the payee for a like sum, with the assent of the payee, shortly after the maturity of the note. On this state of fact, the defendant objected to the introduction of the note in evidence, the objection was overruled, the note admitted, and exceptions taken. After a verdict for plaintiffs, the defendant sued out this writ of error.
    
      
      Smedes and Marshall, for plaintiff in error, contended,
    1. That no title without the indorsement of Prentiss was in the plaintiffs, so as to enable them to sue at law, in their own names. The suit should have been in the name of Prentiss, use of Brown and Johnston. Pease v. Hirst, 10 Barn. & Cress. 122, (21 Eng. Com. Law Rep. 39;) Bradley v. Hunt, 5 Gill & John. R. 54; Stearns v. Burnham, 5 Greenl. 261; Matlack v. Hendrickson, 1 Green’s Rep. 263; Nelson v. Marly, 2 Yerger, 576; Cocke v. Dickens, 4 lb. 29; Burton v. Dees, 4 lb. 4; Lee v. Jilson, 9 Conn. R. 94; Chitty on Bills, 252; lb. 265, n. o; Story on Prom. Notes, 125, § 120. In no other way, (except by indorsement of a note, payable to a person or his order,) will the transfer convey the legal title to the holder, so that he can at law hold the other parties liable to him, ex directo, whatever may be his remedy in equity. Bayley on Bills, ch. 5, § 1; Story on Bills, § 199.
    2. That the acquisition of title at the trial did not relate back to the commencement of the suit, and cure the want of right of action at that time. The legal title must be in the plaintiffs when action was brought; it is not sufficient if it be so at the trial. Bailey v. Fairplay, 6 Binn. 454; Carroll v. Norioood, 5 Har. & Johns. 164; McCulloch v. Cowher, 5 Watts & Serg. 427; Neioman v. Foster, 3 How. (Miss.) Rep. 383 ; Wiggle v. Thomason, 11 S. &M. 452; Love v. Nelson, Mart. & Yerg. 237; Barker, Ex parte, 9 Yes. R. 110; IChit. Plead. 194-195. However perfect his equity, if he have not the legal title, he cannot maintain an action at law. Thompson v. Wheatley, 5 S. & M. 499; 1 Black. Com. 116.
    
      Sanders and Haggin, on the same side.
    
      J. M. Chilton, for defendant in error, insisted,
    1. That the written indorsement was intended to consummate the antecedent transfer, and related back to the same, so as to connect itself with, and become part of, the original transaction; and therefore the plaintiffs are to be considered as having had the legal title at the commencement of the suit.
    
      2. The plaintiff’s declaration contains a money count, under which this note should go in evidence. Assumpsit is an equitable action, and lies, in all cases where the defendant is bound, by natural justice and equity, to pay money which he owes to the plaintiff. 2 Burr. 1012; 4 Maulé & Sel. 478, cited in Tucker’s Com., book 3, 12S; 20 John. R. 367; Minor, 263; 4 Haywood, 420 ; 8 Cowen, 77; 12 John. 90.
    
      Smedes and Marshall, in reply.
    The same objection exists to the admissibility of this note, under the money, as under the special count. Before the statute of Anne, none but the payee could give the note in evidence, under the money count. Story v. Atkins, 2 Stra. 719; Smith v. Smith, 2 Johns. R. 235. Since that statute, the substance of which we have, extending the rights of payees to indorsees, they may give the note in evidence, under the money counts too; so may assignees of notes payable to bearer. Grant v. Vaughan, 3 Burr. 1516; Cruger v. Armstrong, 3 John. Gas. 5. But in no case, do we believe it has ever been held, that an assignee, by delivery of a note payable to order, and not indorsed, has been permitted to recover in the money counts, or otherwise, at law, against the maker.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The defendants in error sued on two promissory notes made by the plaintiff in error; one for $500, which was payable to S. S. Prentiss or order, and the other for $63, payable to George Montgomery. The first note was transferred by delivery only, but some time after the suit was brought it was indorsed. It is, however, declared on as having been “ indorsed and transferred to the plaintiffs.” If a note be payable to order, the legal title passes only by indorsement. Cohea’s Ex’rs v. Bacon, Jan. Term, 1849, [12 S. & M. 516.] If it be payable t® bearer, the legal title passes by delivery. And the holder cannot sue in his own name, on a note payable to order, without an indorsement. The subsequent indorsement does not cure the defect in the manner of declaring. The plaintiff must have a legal right of action at the time he brings the suit; and the proof must show such a right as he has declared on, in him, at the time he commences his suit. These plaintiffs were not indorsees at the time they sued as such, and consequently fail in proving a cause of action as laid.

But the declaration contains also a count for money had and received, and it is insisted that the note was admissible under this count. About this point we have had more difficulty. The admissibility of promissory notes and bills of exchange under the money counts, has given rise to much judicial discussion. Some of the English cases have held that the right to give them in evidence under the money counts was confined to the payee, and did not extend to indorsees. Waynam v. Bend, 1 Campbell, 175; Bentley v. Northhouse, 2 Ry. & Moo. 66. But by many other, decisions, both in England and this country, this right has been extended to the indorsee of a note or bill payable to order, and to the bearer of a bill or note payable to bearer. A very full examination of the authorities has resulted in the conclusion that the rule may now be regarded as settled, that any one who has the legal title to negotiable paper may give it in evidence under the money counts; but that he cannot do so, unless he has the legal title and may sue in a court of law in his own name. He must hold by indorsement if the note be payable to order, or he must hold as bearer if it be payable to bearer. It would be a clear departure from principle to hold that one who has the mere equity in negotiable paper, and cannot sue at law, may, nevertheless, sue at law in his own name in indebitatus assumpsit, and sustain his action by giving the instrument in evidence. This would be to convert equitable into legal rights, and to subvert settled principles. True, Lord Mansfield said the action of assumpsit was an equitable action to recover money which ought not in justice to be kept. But he did not say, nor could he have meant, that it was an action which might be sustained on a mere equitable right. It is necessary, as in other actions at law, that the plaintiff should have a legal right. Whether the decisions have not already departed from principle in permitting a special contract to be abandoned in pleading, and to be given in evidence under the common counts, we need not now iuquire. So the rale seems to be settled, notwithstanding the general rule, that when there is a special contract, open and operativej and shown to be so, the plaintiff must sue on it, and recover on it, or not a-t all. But far as they have gone, no case has been found which decides that the holder of a promissory note, payable to order, which has not been indorsed, may sue in his own name and give the note in evidence under the money counts. He cannot in such case recover on a special count for want of legal title. Does the form of the count change the character of the evidence, and make it establish a legal right, when under a special count it would establish but an equity, and be insufficient 1 If so, the common counts may in all cases supply the place of a bill in chancery. This view seems to be very clearly sustained by the following authorities: Grant v. Vaughan, 3 Burr. 1516; Olcott v. Rathbone, 5 Wend. 490; Pierce v. Crafts, 12 John. 90; Wild v. Fisher, 4 Pick. 421; Cruger v. Armstrong, 3 John. Cases, 5 ; State Bank v. Hurd, 12 Mass. Rep. 172; Arnold v. Cram, 8 John. 79; 4 Phil. Evid. 15-19, and notes.

Let the judgment be reversed and cause remanded.  