ABRAHAM BLOCK against Ja's H. WALKER.

ERROR to Hempstead Circuit Court.

Under the territorial statute of assignments, an assignment was an agreement or con. tract in writing entered into between the assignee and assignor for a valuable consi. deration; and was equivalent to drawing a new bill in favor of the assignee on the original obligor.

After assignment and delivery, the assignee stood in precisely the same relation to the obligor, as the payee of a bill to the drawee, and thereby acquired the right of action, and was fully authorized to commence and prosecute suit on the bond in his own

name.

After assignment once made, or become complete, the assignor had no power to release the debt, or any part of it.

The assignment being a contract, entered into by mutual consent of two persons, cannot, when properly executed, be revoked or dissolved, except by the like mutual consent of both. The contract cannot be cancelled, nor their respective rights seriously altered or destroyed, unless both parties agree to their alteration or destruction; and even then, that agreement must be made and evidenced according to the grade and dignity of the contract.

The assignor had no right to strike out and erase the assignment, after he had once executed it, and by delivery it became complete. He would have no right to alter or change the contract or assignment to the prejudice of the assignee or obligor, without their consent or agreement.

Nor can the assignee, after assignment in full and delivery to him, restore the legal interest in the bond to the assignor by the erasure or cancellation of the assignment. He may destroy the evidence of his own claim, but that will not re-instate the legal and equitable interest in the assignor, without any agreement, re-assignment, or redelivery.

Where, therefore, to debt on bond, brought by A. for the use of B., the defendant pleaded, that before the commencement of the suit, A. made over, transferred, en. dorsed, and assigned the bond to B., and delivered the bond, so endorsed, to him, and thereby parted with and transferred all his right, title, and interest, of, in, and to the bond to B.; and defendant thereby came liable to pay to B., and that A. has no interest whatever in the suit, is a good plea in bar.

And a replication, that after the endorsement, B. caused the transfer and endorsement to be stricken out and erased, whereby the legal interest in the bond again vested in A., and A. became entitled to sue, is not good.

This was an action of debt, commenced by James H. Walker, for the use of Nicholas T. Perkins, against Abraham Block and William Simms, on a common money bond. The defendant, Block, pleaded that after the making of the bond, and before the commencement of the suit, to wit, &c., Walker made over, transferred, endorsed, and assigned all his right, title, claim, and interest, of, in, and to the bond, to Perkins, and delivered him the bond so endorsed, and by the endorsement and delivery directed the amount to be paid to Perkins; whereby he, Walker, parted with and transferred all his right, title, and interest, in and to the bond, to Perkins, and the defendant became.

Abraham Block against Ja's H. Walker.

liable to pay to Perkins, and that Walker has no interest whatever in the suit.

To this plea the plaintiff replied, that after the transfer and assignment, Perkins caused said transfer and assignment to be stricken out and crased from the bond, by means whereof the legal interest in the bond was again vested in Walker, and Walker became entitled to

sue.

To this replication the defendant, Block, demurred, and his demurrer being overruled, the plaintiff had judgment final against Block upon the demurrer, and Block sued his writ of error.

TRAPNALL & COCKE, for the plaintiff in error:

By the assignment, the legal interest in the note emanated from the assignor, and vested in the assignee, and afterwards the assignment becomes inoperative, and is important only as evidence of the transfer, and if lost may be supplied by parol. The only means by which the legal interest in an obligation can be transferred by the payce or obligee to any other person, is by an assignment under the statute; and after the assignment, all the right, title, and interest, of the payee is vested in the assignee. That interest can be re-conveyed by no other means; and, therefore, if the assignment is lost or obliterated, the written evidence of transfer may be destroyed, but the legal interest remains in the assignee, until assigned away by him; and, therefore, the replication was no sufficient answer to the plea, and the demurrer should have been sustained.

SCOTT, contra:

There is but one question for the court in this case, whether the striking out the transfer by Perkins re-vested the legal interest in said writing in Walker? Of this there can be no doubt. If a person who, has endorsed a bill comes into possession of it again, he will be regarded as the bona fide holder and proprietor of the bill, and is entitled to recover, notwithstanding there may be on it one or more endorsements in full, subsequent to the one to him, without producing any receipt or endorsement back from either such endorsors, whose names he may strike from the bill at pleasure. Bank of Utica vs. Smith, 18 J. R. 230. If, then, the assignor could strike out his own

Abraham Block against Ja's H. Walker.

assignment, so as to re-vest the legal title in himself, how much stronger is this case, when the striking out was by the assignee. In him was the legal right, and it was optional with him to have transferred that right, by endorsement, to a third person, or, by cancelling the assignment to himself, restore the note or writing to Walker; 15 J. R. 247, Burdick vs. Green, where it is decided that the legal title of an endorsee to a note may be divested, either by cancelling the endorsement, or by endorsing it again. If, then, the legal interest in the writing in controversy, was by the act of Perkins restored to Walker, it will not pretend to be argued that he could not bring this suit for the benefit of Perkins. Upon this head I need cite no authority-the books, both in England and this country, abound with similar cases. It has even been decided in New-York, that plaintiff may answer the plea of transfer, by stating that the suit was instituted for the benefit of assignee; 11 Wendell 27. The facts necessary to support this argument will be found in the replication, and are admitted by the demurrer. If I have not grossly mistaken the law and decisions on this subject, the court must affirm the judgment of the court below, giving to Walker the usual damages allowed by law, for the delay and trouble occasioned by this appeal.

In addition to the above, I would refer the court to 1st Sumner 478, Riquet vs. Curtis; Dugan vs. the U. S., 3d Wheaton 172.

LACY, Judge, delivered the opinion of the Court:

The demurrer to the replication raises the only question presented by the assignment of errors, which is, was the legal interest in the writing obligatory, at the time of the institution of the suit, vested in the plaintiff in the action? The decision of this question involves the construction of our statute of assignments, and such general legal principles as are applicable to the case.

Anciently, at common law, choses in action were not assignable. They were first made so as respects foreign bills of exchange by the law merchant, and the payee not only had the right of transferring the legal as well as the equitable interest in such instruments by endorsement, but the endorsee was fully authorized to commence and prosecute the suit in his own name. Subsequently, by the statutes of

Abraham Block against Ja's H. Walker.

9th and 10th William III., and 3d and 4th Anne, inland bills of exchange and promissory notes were put on the same footing as foreign bills of exchange, and the law merchant declared to be applicable to them. The principles first introduced and established by the law merchant in regard to foreign bills of exchange, and afterwards extended and recognized by the acts above referred to, in relation to inland bills and promissory notes, doubtless give rise to most, if not to all the statutes of assignments of our own country. Our statute on the subject is very similar to that of Virginia and Kentucky, and is unlike the statute of Anne in every respect, except so far as it makes the legal as well as the equitable interest assignable, and authorizes the assignee to bring suit in his own name. In order that we may see its bearing on the question now before us, it is necessary to insert the act itself, and also such parts of the plea and replication, as necessarily fall within its provisions.

The statute declares, that all bonds, bills, and promissory notes, for money or property, shall be assignable, and the assignee may sue for them, in the same manner as the original holder thereof could do; and it shall and may be lawful for the person to whom said bonds, bills, or notes, are assignable, made over and endorsed, in his own name to commence and prosecute his action at law, for the recovery of the money mentioned in such bonds, bills, or notes, or so much thereof as shall appear to be due at the time of such assignment, in like manner as the person to whom the same was made payable might or could have done; and it shall not be in the power of the assignor, after assignment made as aforesaid, to release any part of the debt or sum really due by said bonds, bills, or notes, provided nothing in this section shall be so construed, as to change the nature of the defence in law that any defendant may have against the assignee, or the original assignor."

The plea alleges, that after the making of the said writing obligatory in the said declaration mentioned, and before the commencement of this suit, to wit: On the 26th day of December, A. D. 1839, in the county of Hempstead, as aforesaid, the said James H. Walker made over, transferred, endorsed, and assigned, all his right, title, claim, and interest to a certain Nicholas T. Perkins, by description of

Abraham Block against Ja's H. Walker.

N. T. Perkins, agent of D. Jeffries, guardian, &c., and then and there delivered the said writing obligatory, so endorsed and assigned, as aforesaid, to the said Nicholas T. Perkins. The defendant relies on these facts, in bar to the plaintiff's right of action, and the plea, after setting up our statute of assignments, as constituting a valid defence, concludes with a verification. The replication admits the facts as pleaded, but alleges new matter by way of avoidance; averring that the said Nicholas T. Perkins caused the said transfer and assignment to be stricken out and erased from said writing obligatory, by means of which said striking out and erasure of said transfer and endorsement by the said Nicholas T. Perkins, the legal interest in said writing obligatory was again reinstated in him, the said plaintiff, all of which he is ready to verify; and then it prays judgment for his debt, damages, and costs.

The demurrer to the replication in this case, raises the question, in whom was the legal interest vested at the time of the institution of this suit? The inquiry, then, is, did the erasure or cancellation by the assignee of the assignment from the writing obligatory, without delivery or a re-assignment to the assignor, vest in him the legal interest, and thereby authorize him to institute the suit in his own name? In examining this question, it should be borne in mind that the replication does not aver, that the assignor or obligor agreed to the erasure of the endorsement, or, that after the assignment was stricken out, that the writing obligatory was delivered or assigned to the original assignor. It merely alleges that the assignee caused the transfer and endorsement to be stricken out and erased from the writing obligatory, and by means of the striking out and erasure therefrom, the legal interest was again reinstated in the assignor. The truth or falsehood of this proposition we will now proceed to test; and in order to arrive at a correct conclusion on the subject, we shall have to analyze and determine the nature and character of assignable instruments, as fixed and ascertained by our statute. An assignment, then, according to our statute, is an agreement or contract in writing, entered into between the assignor and assignee, for a valuable consideration, is equivalent to drawing a new bill, in favor of the assignee, on the original obligor; and the assignce stands precisely in the same relation