#### Timothy and Wm. Brinkley, Appellants, v. Reuben Going, Appellee.

APPEAL FROM GALLATIN.

A payee of a note, although he may have written an assignment on the back of it, can maintain an action thereon in his own name, and his describing himself “ assignee ” of the person to whom he made the assignment, may be rejected as surplusage. The indorsement is in the control of the payee, and he may strike it out or not as he thinks proper.

The possession of the note by the payee, is, unless the contrary appears, evidence that he is the bona fide holder of it.

Going, as assignee of Hulett, brought an action of debt before a justice of the peace in Gallatin county, against the appellants, upon a note under seal made payable to him, by the appellants, on the back of which was an assignment of the same to one Thomas Hulett, but crossed thus, M . Judgment was rendered by the justice of the peace in favor of Going, and an appeal taken by the defendants to the circuit court. On the trial of the appeal there, it appears from the bill of exceptions, that the counsel for the appellants moved the court to reverse the justice’s judgment for want of proof that Going had either paid the money to Hulett, or that said Hulett had retransferred the note to him, which motion the court overruled, and affirmed the judgment of the justice of the peace. The bill of exceptions states further, that there was proof that the defendant acknowledged the note to be just after judgment was rendered by the justice of the peace, and that he would pay the money by court, or let judgment go against him. The appellants assigned for error,

1. That the plaintiff below sued as assignee of Hulett, when it appeared that the note had not been assigned to him, and that the court below erred in not reversing the judgment of the justice of the peace for this variance ; and

2. That the court erred in not reversing the judgment of the justice on the ground that the note had not been retransferred to the plaintiff, and on the ground that the right of action was vested in Hulett, and not in Going.

Opinion of the Court by

Chief Justice Wilson.

This is an appeal from the judgment of the circuit court of Gallatin county, affirming a judgment of a justice of the peace, rendered against T. Brinldey in favor of R. Going, upon a joint and several note made by T. and W. Brinkley to Going. On the back of the note is an assignment by Going to Thomas Hulett; *367the signature of Going to the assignment is crossed, and from the bill of exceptions containing the evidence, it appears that the defendant below acknowledged, after the judgment of the justice was rendered, that the note was just, though it does not appear that he knew of the assignment.

Eddy, for appellants.

Gatewood, for appellee.

For the appellants it is contended, that Going can not maintain this action in his own name without accounting for the assignment or a retransfer of the note. This position is untenable. The indorsement on the back of the note is in the control of the payee, which he may strike out or not, as he thinks proper, and in this case he has stricken it out. But even if the assignment had remained perfect, the possession of the note by the payee, is,'unless the contrary appears, evidence that he is the bona fide holder and owner of the note, and will enable him to maintain an action in his own name without a reassignment, or receipt from the assignee, and the allegation that he is assignee, may be regarded and rejected as surplus-age. The presumption of law in favor of the appellee’s claim, is supported by the ackowledgment of the appellants, that the note was just, and his promise to pay the money, or suffer judgment to go by default. See Dugan et al. v. United States, 3 Wheat., 172. Lansdale v. Brown, 3 Wash., 404. The judgment is affirmed with costs. (1)

Judgment affirmed,

(1)

The principles of this decision have been reaffirmed in the following cases. Kyle v. Thompson et al., 2 Scam., 432. Campbell v. Humphries, 2 Scam., 478. Parks v. Brown, 16 Ill., 454.

A payee may, at the trial, erase any assignments which are on the note. Id.