#### M’Nitt, for the use of Babcock, *v.*Hatch.

The legal interest in a promissory note, though payable to bearer, is not transferable by delivery under the statute, unless the note be payable at some chartered bank within the state.

*A*suit on a promissory note must be brought in the name of the person who-has the legal interest in the note.

Monday, *June*4.

ERROR to the *Elkhart*Circuit Court.

Blackford, J.

Debt on a promissory note commenced before a justice of the peace. The suit was-brought by *Samuel M’Nitt,*for the use of *Thomas J. Babcock,*against *Timothy*A. *Hatch.*The following cause of action was filed: “ Action of debt founded on a note as follows: ‘ Due *M’Nitt*(meaning the said plaintiff) or bearer 35 dollars, nine months from date, for value received. *Mexico,*10th *May,*1828.’ (Signed by the said defendant by the description of *T.*A. *Hatch.)*The said *Babcock*is the bearer of thenote, and has the beneficial interest in the same. .The defendant refuses to pay the note or any part thereof for the use aforesaid. To the damage of the plaintiff, for the use aforesaid, 20 dollars. Hence this suit is *brought.—J.*A. *Liston,*att’y for the'plaintiff.” Plea, the general issue. The justice gave judgment for the defendant, and the plaintiff appealed to the Circuit Court. Judgment in the Circuit Court for the defendant.

The point decided by the Circuit Court was, that the note did not tend to support the cause of action. This decision is erroneous. The defendant’s objection to a recovery is, that as the declaration shows *Babcock*to be the bearer and beneficial owner of the note, the suit should have been in his name. But there is no good ground for this objection. The note being payable to *M’Nitt*or bearer, and the payee not having assigned it by indorsement, we are of opinion that the legal title to it is in *M’Nitt.*

Promissory notes are not negotiable either by indorsement or delivery, according to the common law. By the *English*statute of *Anne,*they are negotiable; and, when payable to bearer, they are, by that statute, transferable by delivery. But that act is not in force here. Our statute on the subject enacts, that promissory notes, payable to any person or persons, shall be assignable by an *indorsement*thereon. But it *532has no expression in it tending to show that any notes are transferable *by delivery,*except such'as are payable to bearer, and at some chartered bank within the state. R. C. 1831, p. 93.

*J. A. Liston*and *J. Morrison,*for the plaintiff.

*H. Cooper,*for the defendant.

The note Under consideration was not payable at a chartered bank within the state, and was not therefore transferable by delivery. It follows, that the mere fact that *Babcock*was the *bearer*of the note, did not show that he was the legal owner of it. The legal ownership of the note was in *M’Nitt,*and the suit was therefore correctly brought on it in his name. 1 Chitt. Pl. 2 (1).

*Per*Curiam.

The judgment is reversed with costs. Cause remanded, &c.

(1)

 In general, the action on a contract express or implied, by parol, under seal, or of record, must be brought in the name of the person having the *legal interest*in the contract, and, generally, with his consent, or at least, after a sufficient indemnity has been tendered to him. 1 Chitt. Pl. 2—3 Chitt. G. Pr. 127. Perhaps, as the person for whose use the suit is brought is in this state liable for costs, there is no occasion here for the consent, &c. above-mentioned. Stat. 1833, p. 113.—R. S. 1838, p. 458.