President of the Union Bank v. Tillard

Bartol, J., delivered the opinion of this Court. This action was instituted by the appellant against the appellees, as partners trading under the name and firm of Tillard and Ireland. The declaration contains five counts, viz: 1st. Por goods sold and delivered to the defendants by Lucius L. Lanier, Robert T. Lanier, Robert M. Spiller and John W. Selby, partners, trading under the name and firm of Lanier Brothers & Co. 2nd.

For money lent to the defendants by said Lanier Brothers & Co. 3rd. For money paid by the said Lanier Brothers & Co., for the defendants, at their request. 4th. For money received by the defendants for the use of said Lanier Brothers & Co. 5th. For money found to be due from the defendants, to ⁴⁵¹ said Lanier Brothers & Go,, on accounts stated between them.

The plaintiff sues as assignee, and in each count of the declaration an assignment by Lanier Brothers and Company to the plaintiff is alleged. The defendants appeared ( by the names of Edward E, Tillard and William Ireland,) by their attorneys, and filed a general demurrer to the declaration, and the plaintiff having joined in the demurrer, the Circuit Court ruled the demurrer good and gave judgment for the defendants, from which this appeal was taken. The only questions presented by the record are, first, whether the declaration is defective; and secondly, whether the defects may be taken advantage of upon demurrer. By the 0ode, Art. 9, sec, 1, “the assignee of a chose in action entitled thereto by assignment in writing, signed by the person authorised to make the same, is authorized to maintain an action in his own name.

The declaration in this case does not aver that the assignment is in writing ; and the want of such averment is alleged to be a fatal defect. According to the general principles of pleading at the common law, we think this objection would be fatal on demurrer. At the common law, assignees could not maintain an action in their own names, this right is conferred only by the statute which declares that the assignment must be in writing ; in such case the rule is well settled, that if an assignee proceeds under the statute, he must cover in his pleading everything which the statute requires. See Chitty’s Pl., 222, ■and authorities there cited.

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