
    Billy Jones versus Joseph Witter, Jun.
    A negotiable promissory note is assigned by delivery only, without writing, for an adequate consideration; and the assignee may recover judgment in the name of the promissee, notwithstanding payments made by the maker to the promissee after notice of the assignment, f
    t Dunn vs. Snell et al., 15 Mass. Rep. 481.
    Assumpsit upon a promissory note, dated February 14th, 1814, for $ 51.80, payable by the defendant to the plaintiff or his order, on demand, with interest.
    The cause was tried upon the general issue, at the last May term in this county, before Putnam, J.
    The defence was, payment; and the defendant produced a writing, which he proved to be signed by the plaintiff, dated March 3d, 1814, describing the note and acknowledging that it was discharged.,
    It was then stated, on the part of the plaintiff, that the * action was brought for the benefit of Messrs. Solomon & Oliver P. Colt, to whom the note had been assigned and delivered before the time when the said writing of discharge was made ; and that the defendant knew of such assignment when he procured the said discharge. And it was proved, that, in April, 1814, the defendant said, that he had followed Jones, who had absconded from his house, and that Jones told him, that he had sold this note to the Messrs. Colts, and that he afterwards obtained the said writing of discharge from the plaintiff. It was also in evidence that the Colts did purchase the note of Jones; and that the defendant was informen of the intended sale of it to them, and made no objection.
    The note, however, was not indorsed, nor was there any assignment in writing produced at the trial; nor did it appear how the note was assigned, if it ever was assigned, to the Messrs. Colts.
    
    The judge permitted the defendant to give in evidence any payment made by him before the assignment and delivery of the note by the plaintiff to Messrs. Colts.
    
    The defendant contended, that there was no evidence of any sale, transfer, or assignment of the note to Messrs. Colts; and that the said writing of discharge was a legal defence. He also proved, that the said Colts' recovered judgment against the said Jones, for money paid on account of this note, in January, 1815, for $ 54.55, and levied $22.59 upon the property of Jones; and he contended, that the Colls were in no event entitled to recover more than the balance which remained due on the note, after deducting the sum which they had levied from Jones. The defendant further proved, that, in March, 1815, the said Colts wrote to the officer who had their execution, not co levy any more than had been levied as aforesaid ; and that the officer believed that he could have procured satisfaction for the whole amount due on the execution ; and thereupon he contended, that the Colts ought not to recover any thing in this action, because * they might and ought to have collected the whole from Jones; and in that case the discharge would have been good as between Jones and the defendant.
    The verdict was taken for the plaintiff, for the use of the Messrs. Colts, for the amount of the note, deducting what they had collected from Jones as aforesaid ; on the ground, that the payment by the defendant to Jones, and the procuring the discharge from him, after he had informed the defendant that he had sold the note to the Colts, did not prejudice their right to recover the money due on this note; and if, in the opinion of the whole Court, that ground was incorrect, the verdict was to be set aside, and the plaintiff to become nonsuit; otherwise, judgment was to be rendered on the verdict.
    
      Gold, for the defendant,
    contended, that the assignment should be proved to have been made by writing, at least, if not by deed ; and to have been made for an adequate consideration.  Otherwise, it amounted to a mere naked bailment, and conveyed no interest. Notwithstanding the supposed transfer of the note, the Colts still pursued their claim against Jones to judgment and execution, and, but for their own interposition, would have obtained full satisfaction from him. This was a virtual waiver of their right against the defendant, if they ever possessed any.
    
      Hulbert and Howe, for the plaintiff,
    insisted, that a delivery of the note for a sufficient consideration, without writing, was a valid transfer or assignment. A power of attorney to collect the debt might be by parole, and is to be presumed. At any rate, it is now too late to call for the evidence of it. 
    
    
      
      
        Perkins vs Parker, 1 Mass. Rep. 117.
    
    
      
      
        Co. Lit. 32 b. — 2 Swift’s System, 160. —10 Mass. Rep 319. — 12 Mod. Rep. 564. — 3 D & E. 180 —7 D. & E. 209. —11 Mass. Rep. 153.
    
   Parker, C. J.,

delivered the opinion of the Court. The only question of any importance presented in this action is, whether there was such an assignment of the note, upon which the action is brought, as passed the interest and property in it to the Messrs. Colts, who claim to be the assignees. For, if there was such an assignment, as the defendant had notice of it before he obtained the * discharge which he set up in his defence, he cannot avail himself of that discharge in prejudice of the assignees.

It appears, that a bargain was made for this note by the Colts with the payee, that a valuable consideration was paid for it, and that it was delivered over to them.

This would be sufficient evidence of the assignment or sale of a chattel, and would transfer the property. But this is a chose in action, not assignable at law but by an indorsement, it being a negotiable note ; and it is not indorsed, nor is there any evidence in writing purporting a transfer. The question, then, is, whether the facts proved show such an assignment in equity as will be supported by courts of law, in all respects, except permitting an action to be maintained in the name of the assignee.

Hitherto no decision has been had directly to this point; although many cases have occurred which necessarily lend to such a decision. It has been decided, that a promise in writing, delivered over by the payee to another for an adequate consideration, the promissor having notice and promising to pay the assignee, will justify an action by the assignee, upon such promise, in his own name ; although the name of the promissee was not signed upon any part of the note. This implies that there may be an assignment without writing, to some purposes. And there seems to be no reason for limiting the principle at this precise point.

The contract between assignor and assignee is operative between them only, until some act takes place which brings the maker of the note into the contract. This act is notice to him ; and, after such notice, it becomes entirely immaterial to him which shall be his creditor ; as all payments, or lawful offsets, existing before such notice, will be allowed him ; and all subsequent payments may as well, for his interest, be made to the assignee as to the original creditor.

The fact of the assignment may as well be proved by witnesses as by the name of the payee on the back of the * paper, when the person claiming to be the assignee holds the paper, and proves that it was delivered to him in consideration of money, or other valuable things paid for it. And it is wholly immaterial in what form the assignment has been made ; the interests of the person to be charged being entirely protected by the necessary fact of notice to him.

There are cases in the old books which show that debts and even deeds may be assigned by parole ; and we are satisfied, that there is no sensible ground upon which a writing shall be held necessary to prove an assignment of a contract, which assignment has been executed by delivery, any more than in the assignment of a personal chattel.

Judgment on the verdict. 
      
      
        Mowry vs. Todd, 12 Mass. Rep. 281.
     