Sammis v. L'Engle et als.-Opinion of Court. The facts in reference to the assignment are that on the first of October, A. D. 1870, Smallwood, Hodgkiss & Co., as admitted by them, were indebted to John P. Sanderson in the sum of $8.773.05. This was subsequently reduced to $5,773.05. In January, A. D. 1871, Smallwood, representing the firm of Smallwood, Hodgkiss & Co., (according to his own testimony in this record,) said to Sanderson, "that a claim of my firm on Thomas, Livingston & Co., of Madison, Florida, was the most available of our assets that I could offer, and much more than enough to pay (him) some thirty thousand dollars, even at a compromise settlement, and that he could so apply enough of the proceeds of that claim when collected. I stated to J. P. Sanderson that I specially set apart the claim of my firm on Thomas, Livingston & Co., of Madison, Florida, to collect as my attorney and pay the balance due himself from my firm as appears by the statement of this account." The account here referred to is the account of J. P. Sanderson with Smallwood, Hodgkiss & Co., showing balance due him of $8.773.05 already referred to. Smallwood says again: I directed John P. Sanderson to pay the balance due to himself out of the proceeds of the collection of our claim against Thomas, Livingston & Co. This is the testimony of Sammis' own witness. It clearly establishes a parol assignment in 1871 by a debtor to his creditor of a claim with power to collect the same and the right to apply the proceeds so far as necessary to the payment of his debt. The fact that Sanderson & L'Engle were Smallwood, Hodgkiss & Co.'s attorneys makes no difference, because they also represented Sanderson. Alexander vs. Adams, I Strob. (Law), 47. A positive direction to an attorney to apply the proceeds of a particular claim to a debt due himself accompanied by a delivery is an assignment of the debt Sammis v. L'Engle et als.-Opinion of Court. to him for that purpose. We take it from the testimony that the claim here assigned was an account against Thomas, Livingston & Co., arising from commercial relations with Smallwood, Hodgkiss & Co., as his factors. Can such an assignment be sustained, and what is its effect? The assignment here is "special or particular." The delivery of the subject assigned is shown, and in such a case the assignment need not be in writing. Brown vs. Chamberlain, Miller & Co., 9 Fla., .464. In such case also the assent of the creditor, even if assent was necessary, is presumed. If the assignment here was of "a book debt" against Thomas, Livingston & Co. it is good in equity. The debt is a chose in action, and like other choses in action, except negotiable securities, is not assignable at law, but all choses in action may be assigned in equity, and the assignee has an equitable right which he may enforce at law in the name of the assignor. By this assignment the equitable interest in the debt as between the parties to it immediately passed to the assignee. Such an assignment as exists in this case places the chose in action beyond the future control of the assignor, and is good against a subsequent attaching creditor who cannot stand on any better footing than his debtor, and if his debtor has no equitable interest in the chose in action as a matter of course his creditor can get none by his garnishment. Dix vs. Cobb, 4 Mass., 508: Alexander vs. Adams, 1 Strob. (Law), 47. The garnishment proceedings in this case, as well as the suits upon which they are based, all being long after this assignment as to them, it is only necessary to say that they cannot be effective to bind these moneys in the hands of E. M. L'Engle, the surviving partner of Sanderson & L'Engle, which had been the subject of a previous special assignment. What has been said disposes of this appeal, unless there Sammis v. L'Engle et als.-Opinion of Court. is something in the alleged relations of Sammis to Sanderson and Smallwood, Hodgkiss & Co., which would give Sammis a claim against this fund, or there is something in the objection of the appellant taken to the proceedings herein in his petition of appeal. The only testimony in this record from which any claim can be made by Sammis against Sanderson arising out of the debt of Smallwood, Hodgkiss & Co. to Sammis, and that of Smallwood, is that of Sammis himself. He, Sammis, states its history to be: That before the war Reed & Hooper, of Boston, held the obligation of Sanderson & Sammis for part of a debt which they (S. & S.) had incurred as endorsers of a note of the Florida Central Railroad Company. In October, 1870, Sanderson and Sammis compromised the debt, each of them giving Reed & Hooper their several note for $5,000. Sammis at the time had the money to pay the $5.000. This sum he loaned to Smallwood, Hodgkiss & Co., they giving him their note for $5,000. Of this transaction Sammis testifies that they, Smallwood, Hodgkiss & Co., had failed. "Smallwood, Hodgkiss & Co. then returned to me $2,000. I surrendered their note for $5,000 and took their note for balance due, principal and interest, $3,153.27." I then took up myself the draft in favor of Reed & Hooper. Sammis testifies: "I would not have loaned the money to Smallwood, Hodgkiss & Co., except upon the representation of Sanderson, who told me that he had done their business for years, and that they were worth two hundred thousand dollars to three hundred thousand dollars, and he induced me to let them have the money. Sanderson told me that he had or should let them have his $5,000." To this testimony, so far as it spoke of acts or transactions of Sanderson, obection was made by counsel for Sanderson's administrators. The objection was sustained, and it was excluded in the consideration of the case. Sammis v. L'Engle et als.-Opinion of Court We think this action was conformable to law. The contest here is between Sanderson's administrators and Sammis. The statute regulating the subject provides that no party to such an action as this shall be examined as a witness in regard to any transaction or communication between such witness and the person at the time of the examination deceased, against the administrator of such deceased person. Sammis testimony here is both within the letter and spirit of this act and is inadmissible. We also think that what is here testified to, even if admissible, does not constitute an actionable false and fraudulent or deceitful representation of the financial condition of Smallwood, Hodgkiss & Co. by Sanderson, nor is it a guarantee of Sammis' debt. If it was such guaranty, not being in writing, it would be ineffective to bind Sanderson. We also think that even if it was in terms a guaranty and in writing it would create no lien upon these funds as against Sanderson's administrators, as nothing here stated has reference to the chose in action assigned. But these matters it is unnecessary to determine, as the testimony was clearly inadmissible under the statute. The testimony of Smallwood, Sammis' own witness, as to any direction by him to Sanderson & L'Engle, or either of them to pay Sammis from the proceeds of the claim against Thomas, Livingston & Co., is: "I do not recollect that either my firm or myself directed Sanderson & L'Engle or L'Engle to apply the proceeds of their collection from Thomas, Livingston & Co. to the payment of the note in favor of J. S. Sammis. I believe that I did not give any direction about the matter except what I have previously stated as given to Sanderson," (which was the direction to collect it and pay his own debt,) before the middle of January, 1871, in the office of Sanderson, (which was in Jacksonville,) not doubting at that time that I would Sammis v. L'Engle et als.-Opinion of Court. soon be able to collect and pay all debts and demands against my firm and have a large surplus remaining still. I may have said to E. M. L'Engle that I wished to pay the notes to Sammis as some subbsequent time after the first pledge given to Sanderson, at which time the note given to Sammis was not in existence but was made and created afterwards on the order of Sanderson. As to the conversation in the office of Sanderson & L'Engle occurring in 1871. he says: "I did expect and intend to pay it (the Sammis note) out of the collection from Thomas, Livingston & Co. by Sanderson & L'Engle, my attorneys, not for a moment doubting that the product of that claim would be more than sufficient to pay both claims of Sanderson and Sammis. I think I may have so stated to E. M. L'Engle but no mode of payment was ordered that I remember." He states further that he made the acquaintance of Mr. Sammis in New York, in 1871, by his (Sammis') presenting an order or draft drawn on his (Smallwood's) firm by John P. Sanderson for the sum of money represented by the note of his firm to Sammis of January 5, 1871, for $3.044.92; that he does not remember having had any other business with Sammis directly, nor indirectly with anyone else for him, nor did said J. P. Sanderson explain, that I remember, the nature of the transaction between himself and Sammis which made my firm become debtor to Sammis. Smallwood says that according to his recollection when the note was given, Sammis preferred the note to a simple transfer of the amount to his credit on the books in account. This witness also states that if there was any joint connection with Sanderson and Sammis as to the Sammis note he was not aware of it. As to the Sanderson and Sammis draft in favor of Reed & Hooper, of Boston, upon Smallwood, Hodgkiss & Co., as to which Sammis testified, this witness says that Smallwood, Hodgkiss & Co. accepted such a |