delivered the opinion of the court:
This is an action of debt brought by Walker for the use of Perkins, on a writing obligatory. The defendants put in two pleas: that the writing declared on had been assigned to Perkins, before the institution of the suit, to which there was a demurrer sustained, and judgment, given for the appellee, from which the defendants below appealed.
The error assigned, questions the correctness of the opinion of the court in sustaining the demurrer.
As the demurrer brings before the court the whole state of the pleadings, at least as far as is necessary, it is proper to enquire into the sufficiency of the pleas, as a bar to the action. And as the writing declared on, was not payable to order, the enquiry involves the consideration of the statutory provision, which authorizes the asssignment, and which declares “ that all bonds, bills and promissory notes, for money orproperty, shall be assignable, andthe assignee may sue for themin the same manner as the original holder may do, and it shall and may be lawful for the person to whom the said bonds, bills, or notes are assigned, made over,and endorsed, in his own name, to commence and prosecute his action at law, for the recovery of the money mentioned in such bond, bill or note;” and the act further declares that, “ it shall not be in the power of the assignee after assignment made as aforesaid, to release any part of the debt or sum really due by the same bonds, bills or notes.” See McCampbelPs Digest. This act does not profess to be declaratory of what was the law, but plainly importing to be introductory of a new rule. We must so consider it, and ascertain whether this is a case in which it can, and ought to have effect. In determining this question it is only necessary to enquire in whom the legal interest is vested, for if Walker is permitted to sue in his own name, he can control the obligation, release the claim, and place himself in such a position that notwithstanding he has passed away his interest, he could in the face of the statute, release “ any part of the debt or sum really due.” And the plaintiff, by demurring to the defendant’s pleas, admits the fact of the assignment. The statute creates a privity of contract between the parties, and Walker, by his demurrer, admits the legal right to be in another, and sueing as trustee, places him in no better situation. We cannot perceive that any injury can arise from requiring the real owner to bring his suit, and stand bound for the consequences. And great inconvenience might result from permitting an action to be brought in the name of a nominal plaintiff, who may or may not be responsible for costs. It is clear, that the assignor of a bond, negotiable by the statute, is not competent to sue in his own name to the use of the assignee. See 1 Marshall, 555; 1 Chitty, 2, 3; Hardin’s Rep., 564.
If the defendants below were prepared to support their pleas, and show that the plaintiff had parted with his interest, they had a right to do so.
We are of opinion, that the court erred, in sustaining the demurrer. The judgment of the Circuit Court of Hempstead County, must therefore be reversed with costs, and this case be remanded for farther proceedings to be had, not inconsistent with this opinion.
The same opinion was given in the cases of William M. Burton and Abraham Block against Walker, for the use of Perkins; McAtee and Others against the Same; and Lozoe and Others against the Same; these cases being precisely similar to that reported above.