Bennett v. M'Gaughy

Mr. Justice Trotter delivered the opinion of the court. It is well settled, that, where a note or bill is payable to two, it must be endorsed by both, in order to transfer the entire interest in it to the endorsee. Chit, on Bills, 67, 226. But, it is urged, that the authority of Allensworth to assign, by his sole endorsement, the whole interest in the note in this case, is stated and shown by the release of Ewing’s interest. The averment is not, however, sufficient for this purpose. It is a well established rule in pleading, that all persons who are ostensibly interested, must join in the action, and any private arrangement amongst themselves, will not be noticed. Could Allensworth have maintained an action on this note in his own name, on the averment in the declaration of the release by Ewing? It is believed he could not. If so, his assignee cannot. The case of Burdick v. Green, 15 Johns. Rep. 249, is a direct authority in support of these views. That was an action on a promissory note, which was made payable to the plaintiff, who endorsed it to one Ketchum, and the declaration averred, that Ketchum afterwards, by his instrument in writing, under his hand, assigned the said note to the plaintiff, by which, the endorsement to Ketchum became cancelled, and the plaintiff restored to all his rights, as though the endorsement had not been [194] made. Upon demurrer, the court held, that this averment was not sufficient to divest Ketchum of the legal title. That the endorsement should have been cancelled. Let the judgment of the court below be reversed, and the cause remanded, with leave to the plaintiff to amend his pleadings.