Abraham Block against Ja's H. Walker.

to the obligor after assignment, as the assignor did before the transfer was made, the legal as well as equitable interest passed by assignment and delivery, and the assignee acquires the right of action thereby, and is fully authorized to commence and prosecute the suit in his own name. After the assignment is once made, or becomes completed, the assignor has no power to release the debt, or any part thereof. The latter clause of the section declares that "nothing shall be so construed in the statute, as to change the nature of the defence in law, that any defendant may have against the assignee or the original obligor.” The statute is express and peremptory on these points, and it leaves no room for doubt or construction in regard to them. The assignment in the case now under consideration, is alleged in the plea to have been filled up before the commencement of the suit with the name of the assignee as well as the assignor's, and that by delivery, the writing obligatory was then passed into the hands of the assignee. This being the case, he necessarily, by the statute, possessed the right of action, and was entitled to the custody and safe-keeping of the writing obligatory, at the time the assignment was executed. The question then recurs, has he, since that time, rightly divested himself of these interests, and transferred them in a lawful manner to the assignor.

Admitting the assignment to be a contract, and that it is there can be no doubt, for all the authorities are full and conclusive on the point, the question is then, in what manner can the assignment be lawfully changed, cancelled, or revoked? See Chilly on Bills, 236, Lamber vs. Oakes, Holt 117; Ballingalls vs. Gloster, 3 East 483, Starey vs. Barnes, 7 East, 435. A contract is a mutual agreement of two or more, founded on a good or valuable consideration to do, or not to do, any particular thing. The agreement of two or more, competent to contract, being indispensably necessary to the formation of a valid contract, so it requires, likewise, their consent, when a contract is once properly executed, to revoke or dissolve it. In other words, the rights and obligations of each party to a contract being mutual and reciprocal, according to the terms and legal effect of their agreement, these respective rights and obligations can neither be seriously altered or destroyed, unless the party to whom they legally belong

Abraham Block against Ja's H. Walker.

shall agree to their alteration or destruction, and even in such a case, his agreement must properly be given, according to the grade and dignity of the contract.

These principles, it is believed, are fully warranted and sustained by all the authorities on the subject, and are every way consonant to reason and justice. The application of these plain and familiar principles to the question now before the court, will determine the rights and obligations of the respective parties, as fixed by the contract of assignment. It certainly cannot be contended that the assignor has a right to strike out and erase the assignment, after he has once executed it, and the delivery thereof becomes complete. After the assignment, he has no longer any control or power over the contract, because, by the assignment and delivery of the writing obligatory, all his interest is vested in the assignce, and he alone has the right of action in his own name; and the assignor cannot release any part of the debt due upon the bond, nor can he do any act that will change the nature of the defence that the obligor may have at law against himself, or against the assignee. Upon these points the Act is express and peremptory, and to allow him to do any thing injuriously affecting either the rights of the assignee or of the obligor, would be to permit him expressly to violate the provisions and intention of the statute. Independently of this, he would have no right or authority to alter or change the contract or assignment to the prejudice of the assignee or obligor, without their consent or agreement. These rights, whatever they may be, are vested by the assignment, and pass by the delivery of the writing obligatory, upon which the assignment is made, and being vested in them by the statute, they cannot be divested of them without an express and implied assignment on their part. It is then clearly manifest, that the assignor has no right to make any change or alteration in the contract whatever, so as to weaken or destroy the rights of the assignec or of the obligor. Neither has the obligor any right or authority to erase or strike out the assignment.-All the interest, both legal and equitable, is vested by the assignment in the assignee, and surely that interest or evidence, upon which it is founded, cannot be cancelled or obliterated without his consent. The only interest that the obligor has in the contract, is the guarantee that

Abraham Block against Ja's H. Walker.

the nature of his defence at law, both against the assignee and assignor, shall not be changed. This the statute in express terms secures to him, and the law will not even allow any agreement between the assignee and assignor, materially to weaken or impair this guarantee. That these positions are true in relation to the assignor and the obligor, cannot be doubted, for the statute imposes the obligations above referred to upon them, and they are bound by its provisions.

We will now see what right the assignce has to strike out and erase the endorsement, without the consent or permission of the other parties to the contract.

There is a mutuality of obligation subsisting between the assignee, and assignor, and the obligor of the bond. Neither party can do any thing forbidden by the statute, or in violation of these contracts. If the assignment and delivery of the writing obligatory pass the legal as well as the equitable interest to the assignee, and that it does no one can deny, then how can that interest be again reinstated in him, without a subsequent assignment and delivery of the bond?

In this case, the plea shows that the endorsement was filled up before the commencement of the suit, and that the delivery of the bond was complete, all of which the replication admits to be true; and the doctrine is, after an endorsement is full, the endorser can only transfer his interest in the bill or note by his own endorsement in writing." See Chitty on Bills, 253. An endorsement in full, says Chitty, contains in itself a complete regular and legal transfer of the interest in the bill to the person named in the endorsement; and even if the instrument should afterwards be left in the possession of the endorser, that would not invalidate the transfer. And, therefore, the allegation in the pleading, that a person endorsed a bill to another, sufficiently imports a transfer of the entire legal and beneficial interest, without any allegation of delivery. Churchill vs. Gardner 7 T. R. 596; Smith vs. McClure, 5 East 477. An endorsement of a bill once complete, by delivery over to the endorsee for value, is not revocable without his consent. "An endorsement, like an acceptance, may, before it has been delivered over to a bona fide holder, be revoked, afterwards it cannot, without his consent, and a re-assignment. Cor

Abraham Block against Ja's H. Walker.

vs. Troy 5 B & A 474. It will be perceived that these principles are strictly applicable to bills of exchange, and if they are true in regard to them, they certainly will hold good as to assignable insruments under our statute, which do not vest by an endorsement in blank and delivery, but by being transferred, endorsed, and assigned over to the assignee. But it is contended that the endorser has come to the possession of the writing obligatory, and therefore he has a right to erase the endorsement, and re-invest the legal interest in himself. This, the court are not prepared to admit, for the record does not show he is in the lawful possession of the writing obligatory. The legal presumption is otherwise, for as the suit is brought for the use of the assignec, he is supposed to be in possession of the instrument. Besides, the replication admits such a state of fact as clearly prove that the legal interest at the time of the institution of the suit, was not vested in the assignor, and of course he was not the lawful holder or proprietor of the bond.

How, then, can it be said, that the assignee can restore the legal interest in the assignor, by the erasure or cancellation of the assignment? He may destroy the evidence of his own claim, but will that reinstate the legal and equitable interest in the assignor, without any agreement, re-assignment, or re-delivery? If that be the case, the the party of his own accord can not only destroy the mutual obligation of a subsisting contract, but he can at the same time create another, and that, too, without the agreement or consent of the other parties, and in prejudice of their rights. Such a proposition is surely as illegal as it is unjust, and can never receive countenance or support in any legal tribunal.

Again, what right or authority has the assignee, without the permission or consent of the obligor, to change the nature of his defence at law? None at all. This, the statute expressly forbids. The moment the assignment is made, the obligor's rights attach, and they certainly cannot be prejudiced or injured against his will.Neither can his defence at law be so embarassed or encumbered, as to make it less valuable or availing to him on the trial.

If this view of the question be correct, and that it is we have no doubt, then the legal interest at the time of the institution of the

Abraham Block against Ja's H. Walker.

suit, was not vested in the assignor, and of course he has no right of action.

The decision of the court below, in overruling the demurrer, and giving judgment for the plaintiff, was therefore undoubtedly erroneous, and must be reversed with costs, and the cause remanded, to be proceeded in agreeably to the opinion here delivered.