Opinion
Fall Sessions, 1852.
CERTIORARI to Justice Tunnell.
Moore, for defendant.
The record showed a judgment by confession, on a sealed instrument, executed by John and Matthias Kinniken, to Warren P. Massey, with warrant authorizing the entry of judgment. It was assigned by Massey to J. H. A. Dulaney, before two witnesses, but not under seal. The judgment was entered "in favor of J. H. A. Dulaney, plaintiff, against John P. Kinniken and Matthias Kinniken, defendants, for $72, real debt, and $4 40, interest, with costs: judgment $ 76 41, costs $1 31, in the margin.
Mr. Moore argued the exceptions, which were — 1. That there was no legal assignment of the note. 2. That the judgment was in favor of Dulaney as the original payee of the note, and not as an assignee. 3. That the judgment was rendered for costs, without stating any amount. 4. That the judgment was for an uncertain amount. 5. That the execution did not follow the judgment.
The Court reversed the judgment, saying: —
The suit in this case ought to have been brought by and the judgment entered in favor of Warren P. Massey, against John P. Kinniken and Matthias Kinniken, for the use of J. H. A. Dulaney.
The note is assignable; but the act of assembly requires that the assignment should be under seal, as well as before two witnesses, to authorize the assignee to bring suit in his own name. ( Code, 184.) Without such an assignment, the assignee has merely an equitable interest in the note, and cannot be regarded as a legal party. He must use the name of the person who has the legal interest in the note.
Even if the suit was properly brought, the judgment does not follow the nature of the cause of action. It is for J. H. A. Dulaney, as an original payee, and not as an assignee.
The other exceptions are not sustained by the record.
Judgment reversed.