Matilda Brown vs. Chamberlain, Miler & Co.-Opinion of Court. not left with them or either of them, for safe keeping, but were verbally assigned, transferred and delivered by Brown to Isaacs, one of said firm, to be by said firm collected, and the proceeds applied to the payment of the debts due from said Brown to defendants-all his other Charleston creditors in proportion to their respective amounts, so far as the amount realized therefrom would pay them, and for that express purpose and no other; that Brown stated at the time of this verbal assignment that he had talked with the other creditors and they assented to it; that the defendants then and there accepted the trust and received said notes for the purposes thereof, and have ever since, and do still hold them therefor. In corroboration of these responsive statements of the answer, we have the testimony of Mr. O. J. Chaffee, Mr. A. F. Williams, Mr. Alfred Price and Mr. J. R. Robertson. The testimony of Mr. Chaffee was admitted by consent, though he is one of the Charleston creditors interested in this suit. He testifies that on the morning of Monday, 21st September, 1857, he saw Mr. Brown in a chase in front of the store of C., M. & Co., when he handed a package of papers to Mr. Isaacs, one of the firm of C., M. & Co. Witness knew what purported to be in the package at the time of the delivery by Brown to Isaacs, and subsequently Brown informed witness that the package contained notes amounting to $26,000, which he had placed as collateral security with C., M. & Co., to his Charleston liabilities. Witness did not see the package opened at the time of its delivery. He relies on what Mr. Brown and Mr. Isaacs told him to identify the notes. The testimony of Williams and Price is objected to before this court on the ground that they are interested. They state that they were Charleston creditors of Brown, but have sold out their claims to the other creditors, and therefore are not interested. Be this as it may, Matilda Brown vs. Chamberlain, Miler & Co.-Opinion of Court. their testimony seems to have been admitted before the Circuit Judge without objection, and it is too late to object to its competency here, and there are no circumstances to make the court receive it with more caution than that which necessarily attaches to the testimony of all interested witnesses. Wilmans testifies that Brown, on the 21st Sept., 1857, told him that he had lodged notes and assets for about $30,000 with C., M. & Co., as collateral security for witnesses' firm and Brown's other creditors in Charleston; that witness in consequence of the information received from Brown, enquired of C. M. & Co., whether the notes had been left, and was informed that they had; that Brown said at the same time that he intended to give additional security to his Charleston creditors. Price testifies the same as Wilmans, except that he says that Brown told him that the assets he had left with Chamberlain, Miler & Co., "were sufficient to pay all he owed" in Charleston, and does not say that Brown said any thing about giving additional security. This witness further says that soon after Brown left the store of Wilmans & Price, Mr. Miler, of the firm of C., M. & Co., informed witness "that the notes had been left as stated by Brown." Mr. Joseph R. Robertson states that he is book-keeper for Horsey, Anton & Co., Charleston creditors of Brown; that on 21st September, 1857, he saw Brown at the store of said firm; that Brown called to arrange his liabilities; that he paid a small open account, and said that he had left securities with Chamberlain, Miler & Co., for the purpose of paying his Charleston debts; and among them his debt to F. M. Horsey & Co., and Horsey, Anton & Co., that Brown asked for and received a statement of his indebtedness to those firms. We have had very great difficulty in sifting and weighing this apparently conflicting testimony. As we have before Matilda Brown vs. Chamberlain, Miler & Co.-Opinion of Court. stated, the testimony of Scott and Williams as to the statements of Mr. Miler, taken in connection with the letter and subsequent action of Chaffee, would lead us strongly to believe that the deposit was a naked bailment. But, when we consider the oaths of all three of the defendants directly responsive to the bill that such was not the case, and that their testimony is corroborated by the subsequent declarations of Brown to Williams, Price, Chaffee and Robertson, we are now made to pause, and ask if there is no way in which these conflicting statements may be reconciled. It is certainly a powerful circumstance that in the life time of Brown, Mr. Miler said to Mr. Scott, that he did not know for what purpose the notes were left, and to Mr. Williams, that they were left for safe-keeping. But it is hardly possible that Brown's arrangement having been made with Mr. Isaacs, Mr. Miler was not informed of its real nature, or for some reason may have desired not to communicate it. It is also a powerful circumstance, that immediately after the death of Brown, seventeen days after the deposit was made, Miler told Williams the notes would be delivered to Brown's administrator, and that on the 30th October, twenty-two days after Brown's death, Mr. Chaffee, the agent of the creditors, should have written the same thing to Mrs. Brown, and afterwards have followed it up by actually turning over to the Administratrix a portion of said notes. But, Mr. Miler, in the answer of defendants directly responsive to the fourth interrogatory of the bill, denies positively that he ever did promise to deliver those notes to Brown's legal representative; and Chaffee testifies that he "gave up the unnegotiable notes to Mrs. Brown to conciliate her, and because he was doubtful whether they could be collected without being duly endorsed, and further, because he considered them of little value." Mr. Chaffee further testifies, that after Brown told him he had placed the notes as collateral, &c., he Matilda Brown vs. Chamberlain, Miler & Co.-Opinion of Court. Brown agreed with witness, that he would give, in addition to the collaterals, a mortgage on his real and personal property in Florida to cover his entire indebtedness to his Charleston creditors; that witness employed a solicitor to consummate this agreement with Brown; that this arrangement was not effected owing to the illness of Mr. Brown; that he was taken ill the night previous to the day fixed for the consummation of this arrangement. Here, possibly, may be an explanation of that part of Mr. Chaffee's letter in which he says Brown's sickness and death prevented his carrying out his design in providing a full security for all his Charleston creditors. Take the latter alone, and it would appear that the notes were “deposited" with the view to some subsequent arrangement to provide for the full security of all his Charleston creditors; but take the letter in connection with the writer's testimony, and it may mean that the notes were deposited in trust for his creditors; so that part of the business was completed, and it was only the intention to give additional security that was defeated. In concluding our remarks on the letter of Mr. Chaffee, it is but fair to state also that he says he "caused" that letter to be written, and the writer may not have expressed the views of Mr. Chaffee as lucidly as he might have done himself, and although the letter promises to deliver the papers without qualification, yet Mr. Chaffee may have intended to impose upon the delivery the conditions which he actually afterwards imposed, to-wit: the payment of sixty per cent. of the amount due the Charleston creditors. After the most thorough and patient investigation, therefore, we have concluded that the preponderance of the testimony is in favor of the fact, that Mr. Brown did, on the 21st September, 1857, make to C., M. & Co., a verbal assignment of the note in controversy in trust, to collect and distribute Matilda Brown vs. Chamberlain, Miler & Co.-Opinion of Court. the net proceeds among all his Charleston creditors, in proportion to their claims, as far as said proceeds would go. But it is contended, even supposing this verbal transfer to have been made, that the mind of Mr. Brown was not in a condition to transact business, and that the verbal assignment, if any such was made, is therefore void. On this point we have no difficulty. The testimony of Dr. Fitch and four other witnesses satisfies us that on the 21st Sept., 1857, when the assignment is alleged to have been made, Mr. Brown was in his right mind and capable of making a valid assignment. The next question naturally arising in this case is, can a party make an assignment without writing which will be enforced? The answer to this question seems to be that in general assignments, or those usually executed by insolvent debtors, a writing of some kind is always required, but in special or particular assignments a mere delivery of the subject assigned is sufficient to pass the property, and in equity many assignments are held good which are not evidenced by any writing. Burrel on Assignment, pages 92-'3. See also Hutchins vs. Low, 1 Green., (N. J., 246,) and Edison vs. Frazuer, 4 English, (Ark.,) 220, 221; Boyden vs. Moore, 11 Pickering, 362; Loftus vs. Lyon, 22 Alabama, 540; Higgenbottom, vs. Peyton, 3 Richardson's Equity, 398; Gordon vs. Green, 10 Georgia, 534; Dix vs. Cobb, 4 Mass., 50-511; White vs. Hunt, 1 Hill, (So. Ca.,) 187; 16 Johnson's Rep., 54; Jones vs. Winter, 13 Mass., 304; Ford vs. Stewart, 19 Johnson's Rep., 344; Prescott vs. Hull, 17 J. R. 17, 284; Canfield vs. Mungen, 12 John., 346; 1 Cain's R., 363; 3 J. R., 71; Alexander vs. Adams, 1 Scrob. Law, R., 47; Maybin vs. Kerby, 4 Richardson's Equity Repts., (So. Ca.,) 105; 1 Browne C. C., 269; Reed vs. Simmons, 2 Dess, 552; Welsh vs. Usher, 2 Hill Ch., 17 and 421. "A special or particular assignment is one which is made |