
    Charles J. Steedman, Sheriff, v. Matthew I. Keith.
    Charleston,
    March, 1830.
    After taking an assignment of a bond for the prison bounds, which had been entered into by a debtor in execution the creditor cannot maintain an action upon it in the name of the sheriff', nor will his erasing the assignment, without the consent of the sheriff, restore the title of the latter, or support the action in his name. ,
    Tried before Mr. Justice Richardson, at Charleston, January Term, 1829.
    This was an action of debt, on a bond for the prison bounds, to which the defendant was surety, brought in the name of the plaintiff, as sheriff, by, and for the bent fit of Bills, survivor of Hdls & Hayden, at whose suit defendant’s principal had been taken in execution. The defendant pleaded, that after the breaches set forth in th< declaration, and before action brought, plaintiff had assigned and delivered the bond to Hills, who accepted thereof, but afterwards erased and cancelled the assign-meut; but that the bond was never re-delivered to, or accepted by the plaintiff, and that the plaintiff had no interest therein at the commencement of the suit. The plaintiff demurred; and the presiding Judge sustained the demurrer, and ordered the defendant to answer over.
    The defendant then pleaded the general issue, and at the trial called for the warrant of attorney from the plaintiff; notice of his intention to do so having been given at the previous term. In support of the call, defendant produced a certificate under the hand and seal of the plaintiff, stating that he had not authorized the commencement of this action, and did not authorize the further prosecution thereof in his name. The presiding Judge sustained the call for the warrant of attorney, and none being produced, ordered a nonsuit.
    The plaintiff now moved to set aside the nonsuit; and the defendant gave notice, that if that motion prevailed, he would move to reverse the judgment on the demurrer.
    J. B. Thompson, for the plaintiff.
    The assignment of a chose in action constitutes the assignee an attorney irrevocable of the assignor, for the recovery of the debt; and the assignor can neither prohibit the use of his name by the assignee in bringing an action, nor can he release, or in any way affect the suit. This is a point well settled both in England and in this country. See Welch v. Mandeville, 1 Wheat. 233. Raymond v. Squire, 11 Johns. 47. and the cases there cited. The reasons of this rule apply with peculiar force to the case of public agents, who certainly ought not to be permitted to release, or affect, the rights of the parties in interest in an official bond. A warrant of attorney from the nominal plaintiff in this action was therefore .wholly unnecessary; and the nonsuit was improperly ordered, for the same reasons on which the demurrer was sustained.
    Pepoon, contra.
    
    The arguments of the plaintiff’s counsel would avail, if there had been any necessity for his suing in the name of the sheriff. But he might have maintained the action in his own name; Tollison ads. Miller, Harper, 389, and the whole foundation of his right to use the name of the sheriff is removed. Whether after taking ah assignment from the sheriff, the right of the latter could be restored by a re-assignment, is exceedingly questionable; but that it could not be done without the consent of the sheriff, cannot admit of doubt. The action therefore cannot be sustained, and the nonsuit was improperly ordered, only because the defendant was iutitled to judgment on his plea.
    
      SegnrandIn-gram, 2 Bai-ley>419,S.P.
   Johnson, J.

delivered the opinion of the Court.

Both parties have appealed; the defendant to reverse the order sustaining the demurrer, and the plaintiff to set aside the nonsuit. Both motions may well be embraced in one general view.

The prison bounds act expressly authorizes the assignment of a bond, taken according to its provisions, from a defendant in custody under a ca. so. P. L. 457: and the defendant’s plea in bar states, in substance, that the plaintiff, Sreedman, the sheriff, did so assign this bond to Hills, the plaintiff in the execution, and delivered it to him, and that it was never re-assigned, or re-delivered to him ; and these facts are admitted by the demurrer put in on the part of the plaintiff. Laying aside for the present all other considerations, the question arises, whether the bar pleaded was good. 'Like all other contracts, an assignment requires the assent of both the parties; and for the same reason the assent of both are necessary to rescind it. No one can force that upon another, which he will not accept, even by way of gift. Now Steedman never had any beneficial interest, in this bond ; and, by the assignment, he parted with all control over it, and vested it in Hills, the party beneficially interested: and without Steedman’s consent it never could be reinvested in him. He could not maintain an action upon it, for a recovery by him would have been no bar to an action at the suit of the assignee, who had both the legal and equitable interest.

The case of Wood v. McClarin, decided at Columbia, in May Term, 1810, and which is preserved in the MS. of the late Mr. Justice Grimké, went on this principle. That was an action on a negotiable promissory note, by the payee against the maker; but it appeared, that the note had been before indorsed by the plaintiff to one Benson, and although the indorsement had been erased, it was still intelligible, and the Cpurt held that the plaintiff was not intitled to recover. It may, I think, well be questioned, whether the principle was properly applied in that case; for in the absence of other proof, I should think that the possession of the note with the indorsement erased, would of itself authorize the presumption, that it had been returned upon the payee for nonpayment by the maker. The case furnishes, notwithstanding, a recognition of the principle i have before laid down; and there can be no doubt about its application to the present circumstances, as Steedman could not in any event be liable on his indorsement. He was liable only in the event of the insolvency of the sureties, and the erasure of the assignment would not have warranted the assumption of that fact.

Here, as in the case cited, the assignment had been erased, and it is averred in the plea in bar, to have been done by Hills, without the knowledge or consent of Steedman. That being the act of Hills alone, cannot, for the reasons before assigned, operate to re-invest Steedman, against his will, with the right to sue in his own name. Viewing the case in all its possible bearings, I have come to the conclusion, that the bar was good, and that the defendant was iutitled to judgment on the demurrer. For the same reason the nonsuit was properly granted: the plaintiff did not shew a right to recover. ' The plaintiff’s motion is therefore refused.  