¶1delivered the opinion of the Court:
¶2This was an action on a negotiable promissory note, assigned to third persons.
¶3The only question is, whether, on the trial of the cause, it appearing in evidence, that the note had been duly assigned to other persons, by the payees of the note, and that such persons were the legal holders of the note, the payees could recover in an action instituted in their names.
¶4It is too manifest to doubt for one moment, that the legal interest in the note had passed to the assignees, and that no action, on such evidence as appears in the case, could be maintained. The variance between the allegations of the declaration, and the proof offered, was fatal.
¶5The plaintiff might have stricken out the assignment on the note at the trial, but he did not do that, but permitted proof to be given of the validity of the assignment, and that the assignees were the legal holders of the note.
¶6The instructions given by the judge were erroneous.
¶7The judgment is reversed with costs.
¶8Judgment reversed,.
¶9Note. See Brinkley v. Going, Breese 288, 289 ; McHenry v. Ridgely, Ante 310 ; Campbell v. Humphries, and note, Post.
¶10 Wilson, Chief Justice, was not present at the argument of this cause.