delivered the opinion of the Court. This case was remanded from this Court at its last term. (8 Mar.— N. S. 297). The judgment having been reversed withou there being an answer to the amended petition, or any judgment by default.
On the return of the case to the District Court, the defendants still continuing to neglect to answer, a judgment was taken by default, which was afterwards made final.
Th<?ftcord shews it was admitted the defendants were husband and wife.
Ailes, one of the original payees of the note, deposed that j no written assignment of the note sued on was made to the Í plaintiff; but the witness and Morris the other payee, gave ( it to the plaintiff in discharge of a debt of Morris, which the plaintiff was authorised to receive; and for which he gave Morris a discharge. Tailing the note without any recourse on the witness or Morris. All this was done with the consent of the witness. The articles in payment of which the note sued on was given, wore delivered by the witness then., in partnership with Morris ; and though charged to the husband and wife, were for the use of the wife, her children and slaves, and furnished on her responsibility; the husband being then insolvent and without credit.
It has been contended in this Court that:
1. The note was transferrable by endorsement only.
2. That the witness [Ailes] was incompetent to testify as to the consideration of the note.
A promissory note made payable to order is transferable by endorsement only, to enable the endorser or assignee, to endorse it over, or to resist the drawer’s claim for compensation of sums due to him from the transferor, or account of payment made before transfer, or before the note became due But the holder or payee of a note even payable to order, may transfer all his interest in it without endorsing it, in like manner as in a cession of goods or assignment to trustees. Parol testimony is admissable to prove the sale and transfer of a note payable to order, without endorsement, or written transfer. One of the payees of a promissory nete,who togather with the other, have sold or exchanged it without resourse on them, is a competent witness to prove the consideration for which the note was given,It is true it is said in the books, promissory notes payable to order, are transferrable by endorsement only: we understand by this that without an endorsement, the assignee is not invested with the right of endorsing over the note, or resisting the drawers claim for compensation of sums due him by the transfer, or on account of payment made before the transfer, and before the note was due. But he certainly can transfer his interest therein without endorsing the note, as is done in £he case of a cession of goods or an assignment to trustees for the benefit of creditors. Endorsable paper, passes also by the assignment of law to executors, curators, heirs &c.
An assignment of personal property may be proved, by witnesses.
Ailes, the witness appears from his testimony to be totally desinterested. The note having been taken by the plaintiff without any recourse. He therefore was cüñpetent to prove the consideration of the note.
It is therefore ordered, adjudged and decreed, that the judgment of the District Court be affirmed with costs.