Simrall, J. :
Suit was brought by W. W, Leland for the use of Miller to recover a sum of money, due by open account, for goods sold and delivered. On the trial the defendant offered testimony tending to prove that neither Leland nor the usee had interest in the subject of the suit. The refusal of the court to admit the testimony was the ground of the motion for new trial, and is the first assignment of error in this court. We have recently examined the general subject, and there cannot be a doubt that the plaintiff, in a court of law, must be clothed with the legal title to the chose-in action, otherwise he cannot recover. That court will not entertain a suit founded on an equitable interest, except if the nominal plaintiff dies, the suit as to him may be abated, and may be continued to judgment by the lessee. The evidence rejected by the court was to the effect that the nominal plaintiff had no interest, nor had the usee, in the debt sued for. We understand the object was to prove a divestiture of interest out of Leland ; that is, that he had parted with all right, legal and equitable; and further, that Miller had no beneficial interest, but that the debt belonged to somebody else. This was competent testimony (Netherville & *296Boyd v. Stephens & Pillett, 2 How. 645; Anderson v. Patrick, 7 ib. 354; Lake v. Hastings, 24 Miss. 495); unless the pleadings were such as made it inadmissible. For the defendant in error, while the general proposition is admitted that the plaintiff must have a “legal right” to the chose in action, it is insisted that testimony showing a want of “right” cannot be admitted to the jury, except upon a plea supported by affidavit, denying the character in which the plaintiff sues. The statute of 1836 embraced in the Code is, “all pleas to the action shall be deemed and adjudged as admitting parties and the character of the parties suing, and in no case shall the plaintiff or the complainant be required to prove * * * identity of person or description of character, or persons composing any partnership “unless denied by plea verified by oath.” In Reid v. Railroad Co., 4 How. 262, it was held, that the plaintiff, by plea of general issue sworn to, was put upon proof of its character as a corporation. It was said “the plaintiff sued in an ‘artificial character,’ and falls directly within the provisions of the act.” Vick’s Water Works & Bank Company v. Washton et al., 1 Smedes & Marsh. 539. The object of the plea was to call in question the “corporate character of the plaintiff, and to require proof of such character.” In Moore v. Anderson, 3 ib. 324, the plea under oath was, “that Willis, for whose use the suit was brought, had no right, title or interest in the note.” The question discussed and adjudicated by the court was upon whom was the “burden of proof.” The circuit court decided that the “ onus,” notwithstanding the affidavit, was upon the defendant. It was ruled, however, on writ of error, “that under the issue the plaintiff must prove that he had an' interest in the note before he could recover.” He was put in the condition he would have occupied if the statute had never been passed. In Beard v. Griffin, 10 Smedes & Marsh. 589, the pleadings were like those in the case last cited. The obligee had deceased, and there was no legal representative; after his death, the writing obligatory was sold to Tyer by Cowan, *297wlio Rad been tbe book-keeper of tbe deceased. After stating tbat tbe legal title never passed out of Andrews, tbe deceased, tbe court adds: “Tbe plaintiff does not derive title by assignment from tbe payee ; tbe plaintiff could not be required to deny on oatb tbat tbe plaintiff was sucb assignee, since there was no agreement to tbat effect.” Anderson v. Patrick, 7 How., was decided in 1843. In tbat case, tbe testimony was admitted under pleas not sworn to. In Lake v. Hastings (1852), evidence was admitted to sbow “title” to tbe note to be out of tbe plaintiff, and sucb testimony was competent, but under wbat state of pleadings the report does not show. 24 Miss. 495. (Upon reference to tbe original record, it appears tbat tbe only issue for tbe jury was non assumpsit, wbicb was not sworn to). In Dowell v. Brown, 13 Smedes & Marsh. 45, tbe proof was tbat tbe note, payable to S. S. Prentiss, was transferred to Brown & Johnson by Prentiss’ agent, by delivery, but after suit brought, tbe payee placed bis name on its back, as indorser. Here evidence was admitted to sbow tbat tbe plaintiff was not “legal” owner. Tbe allegation of tbe declaration was, tbat “ S. S. Prentiss caused said note to be indorsed and delivered to tbe plaintiff.”
Tbe difficulty is, as to tbe scope and extent of tbe statute, £ £ wbat is meant by admitting tbe parties and character of tbe parties suing.” Does tbat member of tbe sentence embrace more than is included in tbe succeeding words: “ identity of persons, or description of character or persons composing a partnership,” are admitted unless denied by plea, etc. In the case reported in 4 How., supra, the plaintiff was said to fall within tbe provisions of tbe act, “ because be sued in an artificial character,” as a corporation. So it would be if be sued as executor, administrator or guardian. In each instance be presents himself in a capacity other than bis personal individuality. Proof cannot be made tbat tbe plaintiff is not tbe “ artificial being” or “ representative character” tbat be claims to be unless denied by plea and affidavit. But while this is so tbe general issue *298traverses every other allegation of the declaration. In the suit at bar the plaintiff does not claim as an “ artificial or representative” personage. He sues in his “individual” right; Leland, as having the legal title, Miller, as owning the beneficial interest. The plea controverts the claim made against the defendant. The “character” of plaintiffs was no more put in dispute by the plea than non deiinet puts the character of the plaintiff in issue in detinue. Under this plea plaintiff must prove property in himself and a detention by defendant. So in non assumpsit, whether the title counted upon be as payee or indorsee, he holds the affirmative of the issue and must prove it. The production of the note in evidence makes out the case most generally. If the suit be by the executor or administrator, non assumpsit admits the plaintiff’s character as such, and dispenses with the production of evidence of appointment to the trust; but it puts the plaintiff in all other respects on the proof of Ms right of action.
It may be impossible to reconcile the case of Moore v. Anderson, 3 Smedes & Marsh., with the antecedent and subsequent cases already referred to. But when carefully analyzed it goes no further than to hold that the plea and affidavit shifts the burden of proof from the defendant to the plaintiff; hence it was said, “he was in the condition he would have been if the statute had not been passed.” The court did not say that, under the general issue simply, the defendant was precluded from showing a want of title in the plaintiff. If that doctrine had been announced it would have been in antagonism with several of the decisions.
Without pursuing the subject further, we are of opinion that the rejected testimony ought to have been admitted.
Judgment reversed, and a venire facias denovo awarded.