Cardwell v. Tennison ( 1850 )

Green, J.

delivered the opinion of the court.

This case was commenced before a justice of the peace; and the following case appears in this record: The plaintiff in error, Cardwell, executed to Tennison his note for twenty dollars, payable when Tennison “returns or calls for it,” dated 8th March, 1848. Tennison assigned the note to W. F. Johnson, who assigned the same to H. A. Moore,

The warrant in the case is in the name of Tennison, the payee of the note, for the use of W. H. Kitchner, against Cardwell, the maker, and Moore, the last assignee. The justice gave judgment for the defendant, and the plaintiff appealed as to Cardwell, dropping the defendant, Moore.

On the trial in the circuit court, the endorsements were admitted, and the plaintiff was permitted to read the note and endorsements to the jury; the defendant Cardwell, objecting thereto. The coui't charged the jury “ that the note and endorsements, prima facie, entitled the plaintiff to recover.” The jury found for the plaintiff, and the defendant appealed to this court,

There is error in the judgment in this case. The note and endorsements are part of the bill of exceptions, and show that the legal title to sue and recover the money-on this note is in Moore, the last endorsee.

If the note has been transferred to Kitchner by delivery, as probably is the case, he might have struck out the assignments at the trial, and recovered in the name of Tennison. But this he did not do, and we cannot permit the recovery in the name of Tennison to stand in him; he has no legal title to demand the money due by the note.

The judgment must be reversed and the cause remanded for a new trial, when Kitchner, if he be owner of the note, may strike out the endorsements, and recover in the name of Tennison for his use.