#### ALLEN GRIST et. al. vs. ALLEN BACKHOUSE.

Dec. 1839

A negotiable instrument payable to R. G. “ agent of his assignees or order,” cannot be sued upon at law, in the name of the persons who were assignees of R. G. by a deed executed before the date of the negotiable ^ security, without his endorsement.

If the plaintiff were bound to support the affirmative of an issue made by the pleadings, and the Judge instructed the jury that the evidence offered by him was sufficient for that purpose, when, in law, it was not, and all this appears upon the record, this Court will notice the error, although no specific exception was taken to it by the defendant on the trial.

This was an action of debt, on a negotiable single bill, in which the plaintiffs declared as assignees of Richard Crist. Plea — the general issue.

On the trial at Craven, on the last circuit, before his honor Judge Settle, the plaintiffs proved and read in evidence the bill upon which they declared, in the following words and figures, to wit:

“ $233. Ninety days after date we jointly and severally promise to pay Richard Grist, agent of his assignees, or order two hundred and thirty-three dollars, value received: Negotiable and payable at the Bank of New-Berne. Witness our hands and seals, July 23rd, 1833.

ALLEN BACKHOUSE, seal.

WM. Y. BARROW, seal.”

The plaintiffs then produced and read a deed of assignment to themselves of all the effects of Richard Grist, for the benefit of his creditors, which was executed before the date of the bill. There was no endorsement of the bill by the payee. Upon this evidence the jury, under the instruction of His Honor, returned a verdict for the plaintiffs; whereupon they had judgment, and the defendant appealed.

J. H. Bryan for the plaintiff.

Badger for the defendant.

Daniel, Judge,

after stating the case as above, proceeded as follows: W e are of the opinion that the evidence offered by the plaintiffs did not support their declaration; and that the Judge misdirected the jury as to the law, when he told them *363that the plaintiffs were entitled to recover. Where a bill was made payable to A. or order, to the use of B., it was held that B. had but an equitable right, not a legal interest; and that he could not maintain an action on the bill against the acceptor. Evans v. Cramlington, Carth. 5—1 Leigh’s N. P. 402—Byles on Bills, 84. So in this case, Richard Grist describing himself in the bill as the agent of his assignees, did not give them the legal title to the bill.

The counsel for the plaintiffs insist that the defendant cannot now object to this error, because there was rio specific exception taken at the trial. The' defendant had placed on the record his plea; it was for the plaintiffs to support the affirmative of the issue arising on that plea. The Court misdirected the jury as to the law on the trial of the issue, and told them that the evidence offered was sufficient for the plaintiffs. This error appears on the record, and for that the judgment must be reversed and a new trial awarded.

Pna Curiam. Judgment reversed.