
    Feimster vs. Smith.
    Where plaintiff sues as assignee ; alleges the execution of the bond sued on to the payee, and the assignment of it by the payee to him, the term assignment, when used in that connexion, ex vi termini imports delivery, and delivery to plaintiff need not be otherwise averred.
    The judgment in this case being for a large sum, and the want of probable error being manifest, this Court imposes upon appellant 5 per cent, damages, under Sec. 40, chap. 137, Digest.
    
    
      Appeal from the Independence Circuit Court.
    
    Debt, determined in the Independence Circuit Court, at March term, 1849, before Hon. William C. Scott, Judge.
    
      Declaration: “Robert Smith, plaintiff, &c., complains of William Feimster, Rufus L. Young, Samuel C. Wycough, and David C. Montgomery, defendants, of a plea, &c., &c.
    “ For that, whereas the said defendants, by their respective styles, &c., &c., on the 27th December, 1847, at, &c., by their certain writing obligatory, sealed, <fec., &c., dated, &c., bound themselves jointly and severally to pay Robert W. Watson, Richard J. Watson, and Thomas H. Dawson, merchants and partners, &c., under the style, fee., of Watson, Dawspn & Co., by their said partnership name, &c., or order, on or before the. 20th May, 1848, the sum of $2,218 84, with 8 per cent, interest, &c., from date, &c.
    “And whereas, afterwards, to wit: on the 1st April, 1848, at, &c., the said writing obligatory remaining unpaid, &c., said Watson, Dawson & Co., by their said partnership style, &c., assigned, transferred, and set over, the said writing obligatory to the said plaintiff, and, by their written assignment thereon, ordered that the said defendants should pay the said sum of money in said writing obligatory mentioned, with the interest, &c., according to the tenor and effect of said writing obligatory to the said plaintiff or his order, which said written assignment is now to the Court shown, whereby, and by force of the statute, &c., the said defendants became liable to pay the said plaintiff the said sum of money in said writing obligatory mentioned, together with interest thereon, &c. Yet the defendants, though often requested, &c., have not paid,” <fcc.
    Defendant Feimster appeared, craved oyer, and demurred to the declaration on the ground that no delivery of the bond sued on, by Watson, Dawson & Co., to plaintiff, was averred. The other defendants made default. The Court overruled the demurrer, and, Feimster saying nothing further, rendered final judgment against all the defendants, and Feimster appealed.
    Fairchild, for the appellant.
    The declaration should have charged all the facts necessary to show the plaintiff’s legal title to the bond; and was bad in not averring a delivery. (2 ling. 376. Ih. 491. 3 Eng. 459. 1 Ch. PI. (7 Amer. Ed.) 279, 286.) Bonds are assignable only by statute; and the holder, to maintain an action in his own name, must acquire title by assignment and delivery. 1 Eng. 200. 2 Eng.' 491. 3 Eng. 459.
    
      Byers & Patterson, contra,
    contended that the words of the assignment laid in the declaration necessarily imported a de- . livery of the bond.
   Mr. Justice Scott

delivered the opinion of the Court.

It is true, as held in Buckner vs. Greenwood, (1 Eng. 200,) that a bond derives its negotiability solely from our statute of “ Assignments,” (Dig. 161,) and this is unlike a bill of exchange or promissory note payable to bearer which were negotiable by the law merchant, and remains so, not only under that law, but under the statute which, as to these, is cumulative. And it is also true, as contended by appellant’s counsel, that a delivery is necessary to perfect an assignment, and this whether the assignment be made under the law merchant or the statute, as has been several times held by this Court; and the cases cited by the counsel are to this point, but not to the point he raises as to the sufficiency of the allegation of the assignment. The allegation is one thing, and the proof of assignment another. The demurrer properly raised a question as to the former; but, until a sworn plea was filed, under the 4th section of the statute, the written assignment declared on proves itself under the provisions of that section, just as a note or bond declared on is evidence to sustain the declaration until its execution is denied by sworn plea.

And, that the allegation of the assignment in this case is sufficient, there can be no doubt at all: indeed, it is alleged with unnecessary minuteness; the word “ assignment,” in the con-nexion in which it was used, ex vi termini imported delivery, that being an element of the assignment alleged. This being the only question raised, and finding no error, the judgment must be affirmed with costs.

Being of opinion, from the amount of this judgment and the manifest want of grounds of probable error, that this is a proper case for imposing damages under the 40th sec., ch. 127, Dig. 828, let 5 per cent. damages be awarded on the amount of the judgment at law.  