
    Day versus Whitney.
    A promissory note, while it was in the hands of a person with whom it had been deposited, was assigned by a deed with a power to sue, &c., and the assignor afterwards demanded the note, but the depositary refused to deliver it to him. Held, that the assignee might maintain trover in the name of the assignor.
    This was an action of trover for a promissory note wade by one Kilburn, payable to the plaintiff or his order, as part of the consideration of a deed of land given by the plaintiff to Kilburn. The note had been deposited with the defendant, to be delivered to the plaintiff in case no deed of mortgage incumbering the land should be found on the records of this county, and none was found. While the note was in the defendant’s hands, it was assigned to one Reed, for whose benefit this action was brought, by a deed with a power to sue, &c. The plaintiff proved a demand of the note and a refusal to deliver it.
    
      Putnam J., who tried the cause, ruled that the assignee might maintain the action in the name of the assignor, and the jury found a verdict for the plaintiff. If that direction was wrong, the verdict was to be set aside and the plaintiff was to become nonsdit.
    
      C. Willard, for the defendant.
    The assignee has an equitable right in the promise and a legal right in the note. In an action on the promise he should use the name of the assignor, but in trover for the note he should sue in his own name. Debt on a bond will not be sustained if brought in the name of the assignee ; Skinner v. Somes, 14 Mass. Rep. 107 ; but he may maintain trover in his own name for the bond. Clowes v. Hawley, 12 Johns. Rep. 484. At the time of the demand, the plaintiff had no property, general or special, in the note, and therefore cannot maintain trover. 1 Chit. PI. 151 ; Hotchkiss v. M’Vichar, 12 Johns. Rep. 403; 2 Saund. 47 a. There could be no conversion until Reed should make a demand.
    
      Lincoln, in support of the verdict.
    Nothing passed by the assignment but an equitable right to sue on the promise. A right to sue for tort could not be assigned. The assignee should reduce the property to possession before he can maintain trover. When an action is brought by the assignee in the name of the assignor, the defendant cannot object to the want of interest in the assignor. Raymond v. Johnson, 11 Johns. Rep. 488 ; Martin v. Hawks, 15 Johns. Rep. 405 ; Webb v. Fox, 7 D. & E. 391.
    In reply, it was said, that a person having a right to the immediate possession may maintain trover although he never had actual possession. 1 Chit. PI. 151, 152. The defendant did not deny the right of Reed to the possession of the note, but he refused to deliver it to the plaintiff because he had no such tight.
   Per Curiam.

The assignment gave Reed only an equitable interest in the note, the legal property still remaining in the plaintiff. The assignor, with the consent of the assignee, may maintain this action.

Judgment according to the verdict. 
      See Gibbs v. Merrill, 3 Taunt. 307; Tuttle v Cooper, 10 Pick. 282 287 Burgess v. Merrill, 4 Tax Tt. 468.
     