Hogland v. Brown , 47 Ky. 477 ( 1848 )

Judge Simpson

delivered the opinion of the Court

Brown sued Hogland on a note executed by him to Craycroft, assigned by Craycroft to Field, and by Field to the plaintiff.

The suit is a petition and summons,in which the plaintiff has described himself as assignee of Field, who was assignee of Craycroft, but has omitted altogether a recital in the petition, of the assignments on the note, as requred by the statute prescribing the form of this action.

A demurrer to the petition was filed and overruled. The only question presented, is as to the sufficiency of the petition.

As the petition is in the place of a declaration, it should show that the plaintiff is the legal holder of the note, and has a right in that character to sue on it. If he be an assignee of the note,, his title must be shown by an averment °f the act which constitutes him the legal owner. The form prescribed by the statute is appropriate, and should) be substantially pursued. Merely describiiTg' himself as assignee in the commencement of the' Peti^ori> cannot be regarded as sufficient, because the derivation of his title can only be made out by written-assignment,, which must-, be set out in- some term..

Thompson for plaintiff.’ In suits by etition and. sum-plaintiff claims of tunóte sued he must'set-out the assignments, nership.

It has been held that words describing the character of an executor are sufficient.to enable him to sue in-this form of action, because all the facts necessary to show his right to sue, are implied in-the descriptive averment,, and the form of the petition as prescribed by the statute, admits of no other averment of these facts. But the same-reason for dispensing with an averment of the-facts constituting an assignee the legal holder of the note, does not exist, and consequently he should be-required to comply with the requisitions of the statute.

Wherefore, the judgment is reversed, and cause remanded, with directions to sustain the defendant’s demurrer.