
    Aaron P. Smith, vs. John Lyons.
    
      Jl Note- of Hand not negotiable cannot, under the act of the legislature of 1798, be transferred verbally or by delivery merely.
    
    This was an action by the plaintiff, as the assignee of a note not negotiable. ■ On the trial it appeared that the note had not been assigned in writing, it had passed by' a mere verbal assignment or transfer. The defendant’s counsel moved for a non-suit, on the ground that such an assignee could not maintain an action in his own name, which was ordered.
    A motion was now made to set aside the non-suit, as the action was well brought, a verbal assignment being sufficient to maintain the action.
    
      Barnwell, for motion.
    Writing is only evidence of a parol assignment or transfer. At common law, no chose in action could be'assigned. By our statute this sort of chose in action is made assignable; and the question is in rvhat way. Before the statute, choses in action were assignable in equity;, and this might be by parol and was not within the statute of frauds. 1. Ves. 333; id. 411; 4. Taunt. 326. The assignee was forced however to sue at law in the name of the obligee or payee of the contract, which was inconvenient. The statute only removes a disability and authorizes him to sue in his own name. Possession of personal property is evidence of right and the mode of transfer is not to be enquired into. It has been held that the parol assignee of a covenant of warranty might sue (Cro. Eliz. 436,) and this court has decided that a bond may be assigned by parol. (Í JV. M‘C. 249.) The common law acknowledges but two sorts of contracts — by specialty or by parol. There is nothing in this statute to give It the effect of the statute of Anne. That was the statutory recognition of an existing custom and was construed with reference to the custom. Writing is not necessary to the transfer of negotiable paper further than the custom exacts. Anote payable to bearer or one endorsed in blank may be transferred by-delivery merely: a bill of exchange may be verbally accepted. No inconvenience can arise from giving the construction contended for: the note is not rendered negotiable, and the maker will be allowed all equities and selts-off against the holder.
    Clarke, contra.
    The case cited from 1, fy Ml C. 249, was one of assignment of a bond by writing. , The case from Cro. Eliz. was one of a covenant running with the land, and the assignment ivas by operation of law. The assignment must be of as high a nature as the instrument to be transferred. 1, Mass. Rep. 117; 11, Mass. 491; 12, Mass. 212. Equity allows the assignment of choses in action by parol; but equity requires a consideration to be proved. Freem. 595. The maker of such a note can never be safe in making payment to such a holder; for payment to the fraudulent holder of a contract not negotiable will not protect. The non-suit was correctly ordered. The plaintiff, by his declaration alleges himself to be assignee; but he proved neither assignment nor consideration.
   The opinion of the Court was delivered by

M>'. Justice Colcock.

•The argument of the counsel has gone shew that a chattel may pass by a verbal assignment and delivery. Ido not doubt but that an equitable interest may pass by such a transfer, but the question is, whether such an assignee of a note, not negotiable, can maintain action in his own name. No assignee of a bond or non-negotiable paper could at the commou law mantain an action in his own name. But these transfers being frequently made and it being sometimes attended with inconvenience to sue in the name of the obligee or payee, the legislature thought proper to pass the act of 1798, authorising assignees of bonds or other non-negotiable paper to sue in their own names; and the question is who are meant by the wovdjissigriees in the act. The act, it is to be remarked, speaks of bonds first. . Now who ever heard of a bond being assigned by a verbal transfer of the right? The general rule of law is that the assignment must be of equal validity with the things assigned; so that generally the assignment of a bond was not only m writing, but under seal; and of any other contract, less than specialty, by some writing. And this indeed is indispensably necessary from the nature of the thing. For how is the obligor of a bond or the maker of a non-negotiable paper to know that he is safe in paying his bond or note to any one who may present it without a written assignment or order to pay it? When a paper is thus transferred, it is certainly an exception to the usual mode of doing business, and such an exception as the law ought not to provide for; for the law should never encourage men to conduct their business in a loose manner. It is a very easy matter to write an assignment. If any additional reasons were wanting, why such an action should not be maintained, I think it would tend to encourage perjuries. The motion is dismissed.

Barnwell, for motion.

Clarice, contra,

Ray, JYott, Gantt and Richardson, Justices, concurred.  