
    BILLINGS, et al., plaintiff in error vs. ATCHISON, defendant in error.
    3. An assignment in full of a note not negotiable, cannot be cancelled, as may be done with negotiable paper. The parties to such an instrument cannot defeat set-offs, which the maker may have against any assignee, as would be done, If assignments in full were permitted to be cancelled.
    ERROR to St. Louis Court of Common Pleas.
    STATEMENT OP THE CASE.
    This was a suit by petition under the new code of practice, upon a note, in the words and figures following, io-wit:
    «$026 0° St.. Louis, Sept. 28th, 1850.
    lhree months after date I promise fo pay Messrs. McAlister & Co., or order for value re ceived, six hundred and twenty-six dollars, at-the- Bank of the State of Missouri.
    Lpon which note ¡he following endorsement in blank, until, the trial, when they were filled up. “Par to the order of A. E. McNair, agt., McAlister & Co. Pay Messrs Haskell & Co,, or order A.Jft. McNair, agt.” The petition states, that McAlister & Co. endorsed tht note to A. R. McNair, who afterwards endorsed it to the plaintiff.
    The defendant answered that he made the note; that it was endorsed by McAJisfer * and delivered to one T. S Kennedy and not to A. E. McNair; that he does not knoi£ L’ that plaintiffs are the legal holders of the note, and requires proof thereof- that he is in' formed and believes that when the note was endorsed and delivered to McAlister & C ? was the property of the Knox Insurance Company, and denies that said company ever assfon ed or transferred it. 1 J JSn~
    On the trial which was had before the court without a jury, the co-partaewbin of the plaintiffs, under the style of Haskell $ Co., was proved; also, Ihe endorsement of Mb Alister &• Co.'s signature and A. E. McNair, agent’s signiture. Defendants then proved'bv Tho, O'h'laherty, that he was one of the firm of McAlister & Co.,.and Wrote the name of M-Al' bier & Co. on the hack of this note; that when he did it, there was written on the back of the note “pay to the order of the Knox Ins. Co.,” and that he signed the name o/m " AUster & Co. under it; that he never consented or knew that it had' been erased till hi it in court. - ne saw
    A. E. McNair, sworn for plaintiffs, testified that when the note was made T S K was agent of the Knox Insurance Company, and that this note was given by defend?,?r premiums for insurance due from him to said company? that Kennedy, before the no h came due, ceased to be agent, and witness became the agent, and Kennedy handed to him .M note as part of the assets of the company wilu the endorsements thereon, in blank- the ? T W 10 the order of the Kaox Iu3urance Company,” over the signature of McAlister being erased by drawing a pen through them; that as agent of said company, he endorsed note in blank, by the style of A. E. McNair, agent, and delivered it to plaintiff for a val& bla consideration, paid by them to the said Knox Insurance Company- that since «,-? t was commenced, he has paid to plaintiffs, the note, and that now the same belonged to saTd Insurance Company. s u to saia
    This was all'the evidence. Plaintiffs asked the following instructions:
    I. «If the note, when made and endorsed by McAlister & Co., appears from the „ -d to lave been the property of the Knox Insurance Co., and the endorsement filled up toTaid ' 
      company and delivered to Kennedy as the agent of said company, and afterwards said Kennedy, as agent for said company, delivered said note to McNair; with said endorsement erased, and that afterwards said McNair transferred said note to the plaintiffs, and the note at the commencement of'this suit, was plaintiffs’, then the plaintiffs ought to recover.’’
    2. If the court shall find from the evidence, that the note in question was made by the defendant to the older of McAlister & Co., and that sakt MeAlister&.Co. endorsed said note, and at the time of such endorsement (here were printed over their names, the words “pay to the order of the Knox Insurance Company;’’ thatT. S. Kennedy was, at the time, the agent of said ICnox Insurance Company, and acting as such; that subsequently A. R. McNair became the agent of said company, and that said Kennedy delivered said note to said McNair, with the words “pay to the order of Knox Insurance Company” erased, and that said McNair made his blank endorsement on said note, as follows : “A. R. McNair, agent,’’and delivered said note, so endorsed, for a valuable consideration, to the plaintiffs, and that the plaintiffs were, at the time this suit was instituted, the holders of said note, in viitue of said endorsement, then they aie entitled to iecover in this action.
    The court refused to give the above instructions’; to which refusal the plaintiffs duly excepted.
    The defendants asked the court to instruct as follows :
    3. That under the law and the evidence, offered on the trial of this cause, the plaintiffs are not entitled t-o recover,
    4. That if the court shall believe from the evidence, that said note was endorsed in full !o Ihe Knox Insurance Company, thatt the plaintiffs are not entitled to recover — that the petition does not allege or show that said company ever assigned or transferred said note.
    5. The defendant prays (he court to declare the law to be, that if from the evidence, Ihe court shall be of opinion, that the endorsement on the back of said note, which is siricken out, and that the same was so stricken out after it was made and delivered, and the unwritten assignment was substituted, then the plaintiffs are not entitled to recover
    The court gave these instructions; to the giving of which the plaintiff’s duly accepted. The plaintiffs then took a non suit, with leave to move to set aside the same; and in due time filed a motion therefor, with these reasons, to-wit:
    1. Because the court erred in refusing to declare the law of the case, as asked for by the plaintiffs.
    2. Because the court erred in declaring the law as asked for by the defendant.
    3. Because the court admitted incompetent testimony.
    This motion the court overruled; to which decision of the court the plaintiffs duly excepted, and filed their bill of exception? in this behalf, and now biing the case to (his court, by 6 writ of error, for a reversal of the judgment below.
    Todd & Krum, for plaintiffs in error.
    I. The court erred in refusing to give the instructions prayed for by the plaintiffs below, because:
    1. The lawful holders of a note may strike out a special endorsement to himself, and render it transferable by delivery. The Knox Insurance Company could, therefore, strike out the endorsement to itself. Therefore its agent could, for what one may do by himself, he may do through another. There was evidence, tending at least, to show that Kennedy was a dttiy autl’.omed agent in this behalf, and also McNair.
    2. If plaintiffs were the owners of the nole, when the suit was begun, they, of course, ought to recover. The suit was begun under the new code, which requires that t he beneficial owner shall sue — see. 1, art. 3, p. 75. To become the beneficial owner oí any chose in action, whether assignable or not, requires no written or formal mode of transfer; for such owner ship on a delivery of the evidence of the debt, whether a judgment, bond, note or bill, will be sufficient — 19 J. R. 342; ib. 95; 17 ib. 284,12 ib. 346. And possession is prima facie evidence of ownership. The plaintiffs had this; in addition to this he had the usual evidences of transfer of notes, with evidence tending to show that they were rightfully made. Legal ownership implies the beneficial ownership, and nothing to the contrary was shown. But it was shown, that the plaintiffs became owners for a valuable consideration; hence the evidence tended to show that the plaintiffs were both the legal and beneficial owners, Now, as they only defence of the answer is, whether the plaintiffs were the owners of the note, the instructions should have been given.
    II. The court erred in giving the instructions asked by the defendant.
    1. The first was wrong, for the reasons given under point I.
    2. The second is wrong, because it assumes the law to be, that a title, by a special indorsement cannot be destroyed by its erasure. Whereas, the law is, that the lawful holder, to whom the instrument is made, may do it, and thus render it as if payable to bearer, and transfer it by delivery, or fill it up to any other person especially.
    3." Because it assumes, that under the new code a party can sue only upon a legal title.
    4. The third instruction was wrong for the reasons under sub-division 2, aforesaid.
    III. The defence of the answer is merely conservative; that is, the plaintiffs so malee out their case that the defendant may safely pay them. The defendant does not deny his liability; the consideration of the note is not attached; nor are the bona tides of the plaintiffs questioned. Under the pleadings and evidence, it is therefore insisted, that the court erred, in that it did not grant the motion to set aside the nonsuit.
    Hudson, for defendant in error.
    
      1. There was no evidence to show any transfer of the note in question to file plaintiffs.
    2. The signature of A. R. McNair, agent, does not show that he was the agent of the Knox Insurance Company, or that he. had any right or authority to transfer the said note. The petitions shows, that the note was indorsed and delivered to A. R. McNair. The proof is conclusive that it was indorsed and delivered to the Knox Ins. Co. There is no evidence, of a legal character, showing the right to said note to he in the plaintiff.
    3. The court below did right in refusing the instructions asked by the plaintiffs, and in giving those asked by the defendant. There were no sufficient reasons for setting aside the judgment rendered in said cause.
    The note was not negotiable, and was specially assigned (as appears in evidence) to the Knox Ins. Co. The plaintiffs did not deduce title from the Knox Ins. Co., and so were not entitled to recover; and they were not at liberty to strike out the assignment to the company which was special: 8 Mo. 569.
   Scott, J.,

delivered the opinion of the court.

The evidence in the cause disproved the plaintiff’s petition. It showed that the note was not assigned to McNair, but to the Knox Insurance Company. If the cancellation of the assignment, in full, to the Knox Insurance Company was made under circumstances which would not destroy its right of action, the suit might have been brought in its name, as the trustee of an express trust. See Duty’s adm’r. vs. Dutcher, decided at this term. If the holders of the note found it necessary to bring suit in their own name, all the circumstances should have been stated, as in a bill in equity, showing their right, and that there was no malajides in their conduct in obtaining the note. For the reasons given in the case of Davis vs. Christy, 8 Mo. Rep. 571, an assignment in full, oí a note not negotiable, cannot be cancelled, as may be done with negotiable paper. The parties to such an instrument cannot defeat or throw obstacles in the way of set offs which the maker may have against any assignee, as would be done if assignments in full were permitted to be cancelled. The other judges concurring, the judgment is affirmed.  