Archer v. Spencer, 3 Blackf. 405

Stevens, J. Spencer declared against Archer in debt. The averments of the declaration nécessary.to be" -noticed are,— That on, &c. at, &c. Archer made his due bill in writing, &c. 'by which he promised to pay one Edsall 198 dollars and 72 cents, &c.; that afterwards, on, &c. at, &c. and before said money was paid, Edsall “assigned said due bill to said Spencer, and then and there by said assignment, transferred and appointed said sum of money in said due bill specified, to be paid to the said Spencer, and then and there- delivered the said due bill, so- assigned as aforesaid,'to said 'Spencer,” &c.

T.he defendant demurred. The demurrer was overruled, and judgment rendered for the plaintiff. ■ .'■ The objection raised is, that Spencer is.not legally entitled to bring a suit on the above instrument in his own name, under the assignment which appears of record, heither at common law nor'under, our statute. At common law,'-the due bill in question is not negotiable, and n'o assignment of it could transfer the legal interest to the assignee. It would only Vest in him an equitable interest, and he would have to bring suit in the name of the original payee, for his use, &c.

Under our statute such instruments of writing áre made negotiable, and. the assignee can maintain a-suit in his own name, if they are transferred in a particular way and'manner. The words-of the statute aré “shall be, and’ the same are hereby made assignable, by endorsement thereon, under the hand or hands of such person dr persons, to whom the' same shall or may be made due or payable, &c.; and such assignee or assignees may bring suit thereon in his, her, or their own name or names,” &c.

The statute expressly requires the assignment to be on the instrument itself,' and under the hand of the payee, and not in any other way or manner. H. Cooper, for the plaintiff. G. H. Dunn and D. H. Colerick, for the defendant. It is a principle which is perhaps well settled, that when a new right is introduced by statute,- the party claiming under it is confined to the provisions of the statute; unless the right existed at common law, and the new right given by the s'tatiite is cumulative only.

The right claimed and .exerted.by the plaintiffin the Court below, in this case, does not exist at common law; it'is purely statutory, and the party claiming under it must bring himself within the statute. This he has not done. His declaration should have shown, that the assignment was upon the instrument itself, and that it was under the hand of the payee who was the assignor: these averments are material, and being omitted, the plaintiff must fail. Per Curiam. The judgment is reversed with costs'.