
    White vs Buck.
    Appeal prom the Christian Circuit.
    Covenant.
    Case 133.
    Case staled.
    
      Assignments.
    
    
      September 23.
   Judge Simpson

delivered the opinion of the Coúrfc.

The plaintiff in error, as assignee of the following instrument of writing, brought an action of covenant thereon in his own name:

“I hold a certain note signed by Joseph M. Cheany and Joshua Corbin, for one thousand dollars, dated the 31st of December, 1841, and made payable the 25th November, 1843, drawn in favor of E. T. Mershon, and by him assigned to me the 7th February, 1842. Now I hereby promise, when the whole of said note of one thousand dollars is collected, to pay E. T. Mershon two hundred and seventy nine dollars and sixty six cents, and as it is a gratuitous offer to Mershon on my part, I am, according'to the agreement, to have my own time and way to collect said note, and should the same never be collected, let the failure be under whatever circumstances, I am to be held in no way bound unto the said Mershon. ■ The above amount to bear interest from the maturity of the note, and according to our settlement this day, I hereby release said Mershonfrom all responsibility growing out of his assignment of said note, should the money not be made. Given under my hand this 10th day of November, 1843. Tho. M. Buck.”

Writings are assignable only when, the entire interest of the assignor eanpass to the assignee, as bonds, bills and promissory notes, whether for money or property: Fores’s adm’r. vs Thomosson, (2 Littetl, 167; Boyd Jtumsey, (5 J J. Marshall, 42.)

The defendant demurred to the declaration, and the Court having sustained the demurrer, the only question is, whether the foregoing writing is assignable so as to enable the plaintiff to maintain this action in his own name.

In the case of Foree's administrator vs Thomasson, (2 Litt. 167,) it was decided, that an instrument of a mixed character, stipulating to pay money, together with the performance of other things, was not assignable under the statute. The same doctrine was recognized in the case of Boyd vs Rumsey, &c., (5 J. J. Marshall, 42,) where it is decided that a covenant to clothe a slave or pay his tax, and return him at the end of the term for which he was hired, is net a contract to pay money or property, and although containing also a stipulation to pay money, is not assignable.

The doctrine deducible from these and other cases of a similar character decided by this Court is, that a writing is assignable only when every portion of it is of an assignable nature. The contract is regarded as indivisible; it must, therefore, pass entire by the assignment or not at all. The writings embraced by the statute are only those which are wholly defined by the expressions, bonds, bills and promissory notes, whether for money or property. Unless the whole writing, in all.its parts, is of a character consistent with this description, it is not assignable.

Testing the writing upon which this suit was brought by this principle, it is perfectly evident that it is not assignable. It contains a release of the assignor from all liability on the assignment. The benefit of that release would not pass to the assignee. It imposes on the obligor the duty of collecting the debt assigned to him by Mershon. It is true that he is to exorcise his discretion as to the mode and time of its collection, but still, from the terms of the instrument, this duty devolves upon him. The obligation for the performance of this personal-service is not assignable. But were it conceded that the writing contains no stipulation for the collection of the debt, and therefore, imposes no personal duty on the obligor, still as it contains a release to the obligee, which could only operate in his favor, and is, from its very nature, not assignable, the character of the instrument would be the same and the same consequences would ensue, its-assignment not authorizing the assignee to sue in his own name.

Bristow for appellant.

Wherefore, the judgment of the Court below is affirmed.  