Bradley v. Herndon. the provisions of the statute cannot be exceeded by the discretion of the Court. The judgment must be according to the statute. The motion is dismissed. RICHARDSON, J. O'NEALL, J. EVANS, J. FROST, J. and WITHERS, J. Concurred. Motion dismissed. N. H. Bradley v. Z. P. Herndon. Where a client had placed in the hands of his attorney a note for collection, and the attorney being a creditor of the client, claimed a parol assignment of the note, and proved, by his copartner, the declaration of the client that he had made such assignment-the Court held that the claim of the attorney was not good against a subsequent written assignment, under seal, of the same demand, which had been collected under a judgment and fi. fa. founded on a prison bounds bond executed by the surety of the maker of the note and arising out of the action thereon. Before WITHERS, J. at Union, Fall Term, 1847. This action was brought to recover one hundred and twenty-five dollars and forty cents, and interest, which the defendant had collected or received, in a case of James M. Askew, assignee, v. L. J. Hancock, judgment having been obtained and execution lodged in Newberry. The money had been received by defendant from Kinard, sheriff, on the 20th November, 1845, as in full of debt and interest upon the case above stated. L. J. Hancock had become surety of one S. B. Hancock on a prison bounds bond, growing out of a ca. sa. issued for J. M. Askew upon a judgment obtained by him against S. B. Hancock, at a previous time, and the prison bounds bond had been assigned to Askew, the same having been forfeited by the said S. B. Hancock, and the recovery was had against his surety, L. J. Hancock. This bond had been assigned by As kew to the plaintiff, Bradley, on the 15th January, 1844, in writing, under seal, and in presence of a witness, the language of the transfer being "the within bond and the execution and judgment on which this bond is founded." The note on which S. B. Hancock had been originally sued by Askew was placed in the hands of Herndon & Pearson, copartners, as attorneys, on the 5th March, 1843. The consideration of the transfer by Askew to Bradley, the Bradley v. Herndon. plaintiff, seemed to arise from the arrest of Askew by B. H. Rice, for a demand of $140 and interest, on which occasion Bradley became Askew's surety on a prison bounds bond, and finally, sometime after November, 1843, paid the debt and interest, to Rice. The defendant, Herndon, resisted the payment of the sum demanded, on the ground that he had obtained from Askew a legal valid tranfer of his demand against S. B. Hancock, and of the liability of L. J. Hancock, before the plaintiff had acquired his interest, in order to pay a fi. fa. of Z. P. Herndon v. J. M. Askew, entered on 25th January, 1842, for $150 25, and interest from January, 1842, on which there had been sundry returns of nulla bona. To sustain this position he introducnd the deposition of John H. Pearson, who said that Askew had a claim against S. B. Hancock, who was sued and judgment obtained. That upon his arrest in that case, L. J. Hancock was his surety.— The bond became forfeited and was in the hands of Herndon & Pearson, attorneys. Askew, he said, at Union Court House, before the transfer to Bradley, told him he had transferred his claim against Hancock to Herndon, for a debt due to Herndon. He supposed it six or eight months before transfer to plaintiff. Pearson said he was the attorney on record, who obtained judgment against L. J. Hancock. Askew said he had transferred the claim against the Hancocks to Herndon, (who was not, however, present,) nor did he say how he had transferred it, nor how he was indebted to Herndon.The original demand (a note) of Askew against S. B. Hancock was transmitted by Herndon to Pearson for suit, and he issued upon it in the partnership name. WITHERS, J. I submitted to the jury the inquiry whether any transfer at all by Askew to Herndon of any thing was proved; and if any, whether it was the judgment of Askew v. S. B. Hancock only, or the prison bounds bond, on which L. J. Hancock was liable, and from which, upon being sued, the money in contest arose. But I expressed the opinion to the jury that however these points might be resolved, I did not think the transfer to Herndon, referred to by Pearson, superseded that made to the plaintiff. I said that, giving the fullest effect to Pearson's statement, I saw nothing that would have legally prevented Askew from receiving the money from S. B. or L. J. Hancock, and giving them a valid acquittance, nor any thing that would have made a discharge to S. B. or L. J. Hancock by Bradley, after the assignment to him, ineffectual as against Herndon; wherefore I thought Bradley v. Herndon. that however valid Herndon's interest might have been, as against Askew himself, I did not think it so, as against Bradley. I think the verdict for plaintiff was based upon this view of the legal question, and if I was wrong on that, the defendant should have a new trial. The defendant, Z. P. Herndon, appealed, upon the following grounds. 1st. Because his Honor erred in holding that the parol assignment or transfer made by James M. Askew to the defendant, of the claim or demand he held against L. J. Hancock, was not good against the subsequent written assignment of the same demand by said Askew to the plaintiff, Bradley, when the defendant was the party in possession. 2d. Because his Honor held that the answer of the witness, Pearson, to the fourth interrogatory in chief, was incompetent evidence. 3d. Because the verdict was contrary to the law and evidence. R. S. WRIGHT, for the motion. 1st. The first question is, is a parol assignment of a chose in action, accompanied with delivery, legal and valid? An assignment may be, 1. By deed attested by witnesses; 2. By writing, under the hand of the assignor, endorsed upon the chose in action itself; 3. By parol or words, accompanied with delivery. These are different modes of doing the same thing. The mode of proof and character of the evidence being also different. The first mode, by writing, under seal, being the highest and least exceptionable. 2. An assignment is a mode of transfer of a right merely-a sale of a thing or chose in action from one to another; and is in law and fact a contract between the assignor and assignee, and the assignee is vested with the rights of the assignor in the thing assigned; and the assignee is entitled to the money. The contract or agreement of assignment may be specialty or parol. 3. As between different assignees of a chose in action by the same person, he who is first in time is first in right. 4. As to notice of assignment to debtor, as between assignor and assignee of a chose in action, the contract is complete with any notice to the debtor.-3 N. Y. Rep. 228. 5. As to the delivery of the chose in action, "A delivery of personal chattel is a transfer of possession, either by tradi Bradley v. Herndon. tion from hand to hand, or by writing, without deliverythe delivery of the writing being a symbolical delivery of the property." Delivery is a question, in this case, for the jury. Actual and constructive delivery.-Constructive where the thing is not in possession of the vendor, and the vendee has the right to take possession, and does take possession. Or the surrender of all ownership by the vendor, is at least, prima facie, sufficient evidence of constructive delivery. See Story on Sales, sec. 392. The acknowledgment of the assignor that he had made the assignment, implies at least that the assignee had accepted it or consented to it, and that a delivery had been made, and that the assignment was perfect. The assignment of a chose in action, even if it only transfer the equitable title thereto, the Court of law will recognize and fully protect and enforce.-Chitty on Bills, p. 7, note 2, and authorities there cited, p. 8. Although the assignment be not made according to the form of law, it will vest the equitable interest. So, if defendant be entitled, ex æquo et bono, to the money, this Court will recognize such equity. An assignment of a particular claim passes to assignee all remedies and liabilities which assignor had to secure and recover it, though they are not specifically mentioned in the assignment. Mehaffy v. Share, 2 Pennsyl. 361; 9 Cowper, 747; 5 Cowen, 220. In Alexander v. Adams, (sh'ff,) 1 Strobhart. 47-If one place a note in hands of attorney for collection, directing him to pay proceeds to another, in satisfaction of a debt due by him to another-that other being also a client of the same attorney-held to be an actual appropriation of the fund; and the party so assigning cannot revoke it by an after assignment. The phrase verbal assignment is used by the Court in this case. Authorities as to assignment of a chose in action need not be by deed: Howell v. McIver, 4 T. R. 690; Howell, Jr. ads. Bulkley, 1 Nott & McC. 249; Dawson v. Coles, 16 Johns. R. 50. 2. As between different assignees of a chose in action, by express assignment from the same person, the one prior in time will be protected, though he have given no notice to either the subsequent assignee or debtor.-Minor v. Schenck, 3 Hill N. Y. Rep. 228, and cases there cited, as to question of notice to debtor. 3. The bare delivery of a note or obligation amounts to an equitable assignment.-3 Johns. Rep. 71, and 12 Johns. 346. Bradley v. Herndon. A covenant or mortgage may be assigned by parol, and the mere delivery of a note or execution is sufficient assignment. Jones v. Withers, 13 Mass. Rep. 304; 15 Mass. 485; 19 Johns. 95; 17 Johns. 284. DAWKINS, contra. The assignments in all the cases cited were in writing, though not under seal. If anything was assigned in the case at bar, that was the original cause of action. If the transfer was by word of mouth, could not Askew have been admitted, to prove it, by either party? If he could have been, his declarations were not admissible or competent. WITHERS, J. delivered the opinion of the Court. The question arises upon a claim by the parties to this action upon the same fund, each professing to derive his title to it from one Askew. The money came to the defendant's hands on the 20th November, 1845, from the sheriff of New-· berry; the defendant and one Pearson having been Askew's attorneys in an action against S. B. Hancock, upon a note: but the sheriff aforesaid collected the money upon a judgment and fi. fa. founded on a prison bounds bond, executed by S. B. Hancock, and L. J. Hancock, his surety, arising out of the action upon the note. The action upon the prison bounds bond, it would seem, was brought by Pearson alone, as attorney for the plaintiff in that case. The said bond from which the money actually arose, was assigned in writing, under seal, to the plaintiff here, on the 15th January, 1844. The note upon which judgment had been recovered against S. B. Hancock had been placed by Askew in the hands of Herndon, for collection, and was by him remitted to Pearson, his partner, on the 5th March, 1843, who issued upon it in the partnership name of Herndon & Pearson. Herndon's claim to retain the money in question is based upon a statement of Pearson's, that six or eight months before the transfer of the bond aforesaid to the plaintiff, (that is before the 15th January, 1844,) Askew told him he had transferred his claim against Hancock, or against the Hancocks, to Herndon; but he did not say how he had transferred it. These are the material facts in the case. If the transfer to Herndon, whatever it really was, took place when the note against S. B. Hancock was delivered to him for collection, it must be concluded it would have been in writing, if the form of the note required that, and if so, such fact would have been capable of clear proof; or if the note was transferable by delivery, in law, then the same would have been put in suit in the name of Herndon. In |