of his ability to pay. The notes, which were payable" to order," were afterwards indorsed to the plaintiff. The defendant in

sisted that a consideration must be shown for the new promise, and that it did not revive the negotiability of the notes so that a subsequent indorsee could sue. The court ruled otherwise. Verdict for the plaintiff, and exceptions by the defendant.

T. Wentworth, for the defendant.

J. G. Abbott, for the plaintiff.

By Court, METCALF, J. The case of Bulger v. Roche, 11 Pick. 36 [22 Am. Dec. 359], is a decisive answer to the defense set up by the defendant, under the statute of limitations, against the first note specified in the plaintiff's bill of particulars; and the only other point to be decided is, whether the defendant's discharge in bankruptcy is a defense to that and the two other notes in suit.

The plaintiff relies on a promise made to the payee of the notes, by the defendant, since his discharge. And it is well settled that a distinct and unequivocal promise to pay a debt so discharged, or a promise to pay it on a condition which is afterwards fulfilled, is binding on the promisor, and may be enforced by action. Upon these exceptions it must be taken that a binding promise by the defendant was proved at the trial. No new consideration was necessary to the validity of the promise: Chit. Con., 5th Am. ed., 190; Penn v. Bennet, 4 Camp. 205; and no statute requires it to be in writing.

But the defendant contends that if he is bound at all by his promise, he is bound only to the payee of the notes, to whom he made it, and that it did not revive or restore the negotiability of the notes. And his counsel cited Depuy v. Swart, 3 Wend. 135 [20 Am. Dec. 673]; Moore v. Viele, 4 Id. 420; and Walbridge v. Harroon, 18 Vt. 448, where it was so decided. Since the argument, a similar decision of the court of Maine has been published: White v. Cushing, 30 Me. 267. The grounds of these decisions, as stated in the report of the first of them, were, that "the new promise is the contract upon which the action must rest;" that "the new promise does not renew the old contract, and renovate the note given on that contract;" that "the existence of the note is destroyed by the discharge, and can not be revived and restored to all its former properties by the maker's entering into a new contract, by which he becomes liable to pay what was due on the old contract;" and that "the defendant's liability, therefore, is on the new contract, and that

the suit should be in the name of him with whom such contract is made."

We are not satisfied with these grounds of decision. For we take it to be well established that, in actions brought on promises made by infants, and ratified after they come of age; on promises which have been renewed after the statute of limitations has furnished a bar; and on unconditional promises by discharged insolvent debtors and bankrupts, to pay debts from which they have been discharged; the plaintiff may declare on the original promise; and that when infancy, the statute of limitations, or a discharge in insolvency or bankruptcy is pleaded or given in evidence as a defense, the new promise may be replied or given in evidence in support of the promise declared on; that a replication, alleging such new promise, is not a departure, and that evidence thereof is not irrelevant. And we do not hold that a note, promise, or debt is "destroyed" by a discharge in bankruptcy. If it were, it not only could not be renewed or revived, but it could not be a consideration for a new promise. Yet nothing is clearer, on authority, than that the old debt is a sufficient consideration for such promise. In all the cases above mentioned, the new promise operates as a waiver, by the promisor, of a defense with which the law has furnished him against an action on the old promise or demand: Maxim v. Morse, 8 Mass. 127; Valentine v. Foster, 1 Met. 522, 523 [35 Am. Dec. 377].

We can not perceive any legal difference, as to the point now in question, between the case of a debt that has been discharged by a process in bankruptcy, and a claim voidable on the ground of infancy, or barred by the statute of limitations. In the latter case, it has been decided that a new promise removes the statute bar, but does not create a new and substantive cause of action which is the basis of a judgment; and that the judgment must be considered as rendered on the old contract: Ilsley v. Jewett, 3 Met. 439. And where an infant gave a negotiable note, which he ratified by a new promise after he was of age, it was decided that he was liable on it to an indorsee to whom the payee negotiated it after the ratification. The court said. the ratification gave the contract "the same effect as if the promisor had been of legal capacity to make the note when he made it. This made it a good negotiable note from that time, according to its tenor; of course, when transferred to the plaintiff, he took it as a negotiable note, and may maintain an action on it:" Reed v. Batchelder, 1 Met. 559. And the indorse

ment of a note, after a new promise to the payee has taken it out of the statute of limitations, enables the indorsee to sue the maker: Little v. Blunt, 9 Pick. 488; S. C., 16 Id. 359. The same rule is applicable to the case at bar. A new promise made to the payee of a negotiable note is a promise to pay him or order, or bearer, according to its tenor.

Exceptions overruled.

STATUTE OF LIMITATIONS BEGINS TO RUN IN FAVOR OF NON-RESIDENT DEBTOR, upon a debt contracted without the state, from the time of such debtor's coming within the state: Bulger v. Roche, 22 Am. Dec. 359, and note; Moore v. Armstrong, 36 Id. 73, note; King v. Lane, 37 Id. 187; Brown v. Bicknell, 39 Id. 299. And in Bulger v. Roche, supra, it is held that where the cause of action arose between non-residents while without the state, an action might be brought thereon within six years after the parties removed to the state, though the statute of the state of their domicile had run upon it before the removal. But see, contra, Hale v. Lawrence, 47 Am. Dec. 190. See the note to Bulger v. Roche, supra, discussing this point.

NEW PROMISE TO REVIVE DEBT BARRED BY DISCHARGE in bankruptcy: See Merriam v. Bayley, 48 Am. Dec. 591, and cases cited in the note thereto.. See also Yoxtheimer v. Keyser, 51 Id. 555. An absolute unconditional promise is sufficient: Earnest v. Parke, 27 Id. 280. The new promise may be by parol though the original promise was in writing, and new consideration is necessary: Farmers etc. v. Flint, 44 Id. 351. See, to the same effect, Marshall v. Tracy, 74 Ill. 380, citing the principal case.

WHETHER OLD DEBT OR NEW PROMISE IS CAUSE OF ACTION in case of the revival by a new promise of a debt barred by a discharge in bankruptcy or by the statute of limitations, is a disputed question. In Farmers etc. v. Flint, 44 Am. Dec. 351, it is held, as in the principal case, that where a debt barred by a discharge in bankruptcy is revived by a new promise, the action must be founded on the original debt, and not on the new promise: Contra: Depuy v. Swart, 20 Id. 673; Field's Estate, 21 Id. 454; Stafford v. Bacon, 37 Id. 366. So in case of a new promise reviving a debt barred by the statute of limitations, in some cases it is held that the action must be upon the original debt: Lord v. Shaler, 8 Id. 160; Newlin v. Duncan, 25 Id. 66; contra: Elliott v. Leake, 32 Id. 314; Coles v. Kelsey, 47 Id. 661; Ellicott v. Nichols, 48 Id. 546; Martin v. Broach, 50 Id. 306, and cases cited in the notes thereto. The doctrine of the principal case on this point is approved as respects a new promise to pay a debt barred either by a discharge in bankruptcy or by the statute of limitations, in Smith v. Richmond, 19 Cal. 483, 484; Foster v. Shaw, 2 Gray, 153; Cook v. Shearman, 103 Mass. 23.

PALMER V. MERRILL.

DANA V. MERRILL.

[6 CUSHING, 282.]

POLICY OF INSURANCE IS CHOSE IN ACTION, AND IS ASSIGNABLE like other choses in action.

ASSIGNMENT OF CHOSE IN ACTION MUST BE OF Entire Debt or obligation, and must be accompanied by delivery of the note, bond, or other evidence of debt, if there be one.

ASSIGNMENT OF INSURANCE POLICY PRO TANTO BY ORDER INDORSED THEREON directing the insurers to pay part of the insurance money to the assignee, the policy being retained in the possession of the assured, is not valid and effectual, though notice thereof is given to the insurers.

ASSUMPSIT. Both actions were brought to recover certain sums collected by the defendant, as administrator, on a policy of insurance on the life of his intestate. The facts appear from the opinion. Verdicts for the plaintiffs, respectively, subject to the opinion of this court upon the right to recover.

C. G. Loring, for the plaintiffs.

G. W. Warren, for the defendant.

By Court, SHAW, C. J. This is a suit against the defendant as administrator of the estate of Asa Spaulding, in which the plaintiff seeks to recover the whole amount due to him on certain notes, due from said Asa Spaulding. It is conceded that the estate of Spaulding has been represented insolvent; and it is therefore quite clear that the plaintiff can not recover his full debt, to the injury of other creditors, unless there are circumstances which distinguish this case from the ordinary case of a claim on an insolvent estate. The plaintiff undertakes thus to distinguish it, by showing that he had a lien on a specific portion of the assets, which came into the hands of the defendant charged with such lien; and that the defendant, having received the amount of it, is liable to the plaintiff as for money received to his use.

The ground is, that Asa Spaulding obtained a policy of insurance on his own life for one thousand dollars; that, during his life, and whilst the policy was in force, he indorsed an order thereon, addressed to the insurers, requesting them, in case of loss, to pay four hundred dollars of the amount thereby insured to Palmer, the plaintiff; which order was duly signed by Spaulding and notified to the insurers, but the policy, with this indorsement thereon, remained in the custody of Spaulding until his decease, and came into the hands of the administrator, with the other effects of the deceased. A like order, in all respects, and for the like sum, was also indorsed on the policy, in favor of James Dana. The claim of the plaintiff is, that this was an assignment pro tanto of the policy, as collateral security for several notes, described in the report. After the decease of Spaulding, and notice to the insurers, the plaintiff demanded of them the four hundred dollars, part of the loss, which the insurers declined paying, on the ground that the assignment was not

in the form usually required by them, and besides, that they did not think themselves obligated to pay the amount of the policy in installments. Subsequently, on the demand of the defendant as administrator, the insurers paid the full amount to him.

The question is, whether the case shows an assignment, which vested any interest in this policy, legal or equitable, in the plaintiff. The policy was an executory contract, a chose in action, available as a legal contract only to Asa Spaulding and his personal representatives.

According to the modern decisions, courts of law recognize the assignment of a chose in action, so far as to vest an equitable interest in the assignee, and authorize him to bring an action in the name of the assignor, and recover a judgment for his own benefit. But, in order to constitute such an assignment, two things must concur: 1. The party holding the chose in action must, by some significant act, express his intention that the assignee shall have the debt or right in question, and, according to the nature and circumstances of the case, deliver to the assignee, or to some person for his use, the security, if there be one, bond, deed, note, or written agreement, upon which the debt or chose in action arises; and, 2. The transfer shall be of the whole and entire debt or obligation, in which the chose in action consists, and as far as practicable place the assignee in the condition of the assignor, so as to enable the assignee to recover the full debt due, and to give a good and valid discharge to the party liable.

The transfer of a chose in action bears an analogy, in some respect, to the transfer of personal property; there can be no actual manual tradition of a chose in action, as there must be of personal property, to constitute a lien; but there must be that which is similar, a delivery of the note, certificate, or other document, if there is any, which constitutes the chose in action, to the assignee, with full power to exercise every species of dominion over it, and a renunciation of any power over it, on the part of the assignor. The intention is, as far as the nature of the case will admit, to substitute the assignee in place of the assignor as owner.

It appears to us, that the order indorsed on this policy, and retained by the assured, fails of amounting to an assignment, in both of these particulars. We do not question that an assignment may be made of an entire fund, in the form of an order drawn by the owner on the holder of the fund, or party indebted, with au