delivered the opinion of the court.
This action is not maintainable in the name of “D. E. Posser for the use of John Posser,” because the legal title of the chose in action sued on was in the latter. Lake v. Hastings, 24 Miss. 490.
The judgment by default did not cure the fatal defect mentioned. Haynes v. Ezell, 25 Miss. 242, decided under a statute somewhat broader than that now in force.
It is regrettable that a circumstance so trivial in the view of common sense should operate to reverse the judgment, but so the law is written, and so long as the distinction between courts of law and courts of chancery and legal and equitable rights is maintained, such incongruities will continue to mar the administration of justice.
Reversed and remanded.