Kittlewell v. Scull

Dickinson, J., delivered the opinion of the court: It cannot be contended that the rales governing actions brought by executors, administrators, or guardians, are applicable to the case before us. They sue in their representative character and capacity, and not in their own right, or for their own individual benefit. At common law, an assignee could not maintain an action in his own name; and it was to remedy this inconvenience, that our statute was enacted, authorizing the assignment of bills, bonds, and notes, and the bringing of the suit in the name of the assignee on the original obligation. And the assignee stands precisely in the same relation to the obligor after assignment,- as the assignor did before the transfer was made. The legal as well as equitable interest passes by assignment and delivery, and the assignee acquires the right of action thereby, and is fully authorized to commence and prosecute the suit in his own name. If the note or obligation, and the assignment or endorsement are set out with sufficient certainty, it is all that the statute requires. It is clear to us that the declaration does state all the facts necessary to show that the plaintiffs sue as assignees of Byrd, and that the assignment was regularly made and executed. The averment, “as assignees,” either preceding the statement of the cause of action, or in the conclusion of the declaration is unnecessary. There can be no good objection to the breach, for it is sufficiently formal, and contains all that is essential to a recovery. Nor can the mode or manner in which the assignment was made, be the subject of inquiry; for although oyer was craved, it does not appear to have been granted, and we are bound to presume that the assignment was correctly set out in the declaration. The statement of the Clerk, that the original note was filed, and not now among the papers, and that consequently no copy can be given in the transcript, is but a private memorandum of that officer, and, forming no part of the record, cannot be considered by this Court. The declaration, and the allegations and averments therein, exhibit a legal cause of action, sufficient to entitle the plaintiffs to a recovery. A motion was made, in the Court below, to dismiss the suit, for want of a sufficient bond for costs. The fact that the plaintiffs were non-residents when the suit was commenced, is not presented by the record, and therefore, in accordance with the principle laid down in the case of Clark vs. Gibson, 2 Ark. Rep., 113, we are bound to presume that the decision of the Circuit Court was correct. And it has repeatedly been ruled in this Court, that as the defence, being to the personal disability of the plaintiffs to sue, is the same whether interposed by motion or by a formal plea in abatement, it must be presented in proper order and in due time, according to the established rules of pleading, and will not be entertained after a plea in bar has.been filed. The whole facts' of the case, as presented by the record, are, in our opinion, sufficient to entitle the plaintiffs to a recovery, and are pleaded in-the declaration with sufficient certainty; and the Court below erred in sustaining the demurrer to tf\e plaintiff’s declaration. The judgment of the Circuit Court must therefore be. reversed, with costs.