Ware v. Key

13 S.C.L. 373

Opinion

Mr. Justice Johnson

delivered the opinion of the court :

The general rule is that an action can only be maintained in the name of him in whom, by the terms of the contract, the legal interest is vested, (1 East. 497. % Term 711.) Upon this principle, choses in action not being assignable at common law, actions on them could only be maintained in the name of the original parties, (1 Cbitty on Pleading, 10-11,) notwithstanding the actual interest had been passed by assignment, delivery, &e. And it is only under the several legislative provisions on this subject, that the assignees and holders of choses in action, are permitted to bring actions in their own names, and none of these contain any provisions'which take away the right to proceed according to the rule of the common law.

Our courts have always regarded the assignment of. a chose in action, not negotiable as. aletter ofattorney to the assignee. The assignee or holder of one that is negotiable, may therefore elect to regard himself in that character or sue in his own name under the authority of the statutes and acts authorizing it.

Noble ¿y Wardlaiu, for the motion. Downs, contra.

Superadded to this motion, was one for a new trial, on the ground that the defendant proved the pay n-ent. Tic's ground is clearly without support, as the preponderance of the testimony was against it.

The motion is refused.

Justices Colcock, Noll, Gantt, Richardson and Huger, ■concurred.