delivered the opinion of the Court.
Debt, by petition and summons. Demurrer sustained to the original petition, and an amended petition filed as follows:
“ In the Prairie Circuit Court,” etc. Your petitioner, John W. Mills, the plaintiff in this suit, states that he is the holder and owner of a bond against the defendant, M. N. Plardie, to the following effect:
Brownsville, Ark., April 10th, 1855.
One day after date, I promise to pajr Jackson & Mills, or order, the sum of one hundred and seventy-five dollars and twenty-six cents, for value received, with interest from date'at the rate of ten per cent, per annum.
M. N. HARDIE. [seal.]
Which bond, for a valuable consideration, was transferred, by delivery, to said plaintiff: yet the debt remains unpaid,.therefore he demands judgment for his debt, and damages for the detention thereof, together with his costs.”
The defendant demurred to the petition on the grounds that it failed to show a cause of action in the plaintiff: that the bond sued on was made payable to Jackson fy Mills, and the petition averred no assignment thereof to the plaintiff, etc. The Court overruled the demurrer, the defendant rested thereon, permitted final judgment to be rendered against him, and appealed.
By the common law, bonds were not negotiable. By our statute they may be transferred by assignment so as to vest the legal title and the right of action in the assignee. Gould’s Dig., chap. 15, and notes. The transfer of a bond by delivery merely is no assignment thereof within the meaning of the statute,
The bond sued on was made payable to Jackson Mills. If for a valuable consideration, they tranferred it by delivery to the appellee, as alleged in his petition, he thereby acquired the equitable, but not the legal title to the instrument. That he could not have brought an action upon it, in the ordinary common law form, in his own name, is very clear. But his counsel insists, and the Court below seems to have held, that being the holder of the bond, he could bring debt by petition and summons upon it, in his own name, under the statute (Gould's Dig., chap. 130,) without having the legal title to the bond, etc. But there is nothing in the statute to warraut this conclusion, and such has not been the practice.
The first section provides that any person being the legal owner or holder oi any bond, bill, note, etc., etc., may sue thereon, etc., by petition in debt, etc.
The third section provides that if the plaintiff be the owner of the bond or instrument sued on, as assignee, the fact of the assignment shall be stated in the petition, etc. It is also provided that executors or administrators may sue in this form of action upon instruments made payable or assigned to their testators and intestates, by setting out in the petition the representative capacity in which they sue, etc.
In this case the appellee should have.brought the suit in the name of Jackson <§• Mills, for his use, or, suing in his own name, he should have showed that the legal title to the bond had been transferred to him.
The judgment is reversed and the .cause remanded.