Kinniken v. Dulaney

5 Del. 384

• Court: Superior Court of Delaware
• Decided: July 5, 1852
• Status: Published

Opinion

The Court

reversed the judgment, saying:—

The suit in this case ought to have been brought by and the judgment entered in favor of Warren P. Massey, against John P. Kinniken and Matthias Kinniken, for the use of J. H. A. Dulaney.

The note is assignable; but the act of assembly requires that the assignment should be under seal, as well as before two witnesses, to authorize the assignee to bring suit in his own name. (Code, 184.) Without such an assignment, the assignee has merely an equitable interest in the note, and cannot be regarded as a legal party. He must use the name of the person who has the legal interest in the note.

Even if the suit was properly brought, the judgment does not follow the nature of the cause of action. It is for J. H. A. Dulaney, as an original payee, and not as an assignee.

The other exceptions are not sustained by the record.

Judgment reversed.