Per Curiam,

The first point made by the plaintiff in error is, that the note on which this suit was brought was not assignable so as to vest the legal right of action in the present plaintiff. The note, although not negotiable on its face, is rendered so by our statute, see laws of 1839, page 381. It is however contended that this statute would be inapplicable to a note executed like the one in the present instance before the enactment of the statute.

The argument is certainly a sound one, so far as all the substantial interests of the maker of the note are concerned, but it does not apply to the present case. The statute of 1839, does not affect any substantial right of the plaintiff in error. Before the enactment of that statute a note of the kind of that on which this suit was brought, would have been assignable, and vest in the assignee all the right, he now possesses except that of bringing suit in his own name. Instead of reading, George B. Phillips for the use of John Runnels vs. William Phillips, the the title of the suit is now permitted to read : John Runnels vs. William Phillips. This is all the effect the act of 1839 has had upon this case. Surely this is not such an infringment of the rights of the maker of the *395note as to exceed the power of legislation. It is merely a modification of the remedy.

The decision in the case of Griffey vs. Payne, decided at the July term 1840, does not contradict the positions above taken, for in that case the court only held that a defence, valid at the time of the making of the note, could not be cut off by a subsequent statute. This is a very different thing from authorizing a mere change in the title of the suit, leaving all the parties rights unchanged.

The position that a note is not assignable after it falls due, is wholly untenable. The purchaser buys at his peril it is true. The note in his hands will be subject to the equities of the maker, but in other respects an assignment after due is of the same force and effect as though made before the note fell due.

It is further objected that the action of debt does not lie by the as-signee of a promissory note against the maker. This was formerly the law, but the case is now different, and every assignee may now not only sue in his own right, but may also maintain the same kind of action as the payee himself might have maintained. See R. Laws of 1843, pago 452. This provision merely affecting the remedy is applicable to antecedent contracts.

The variance relied upon in the third assignment of errors, are at most only available upon special demurrer.

The record shows the facts stated in the fourth assignment of errors to be untrue.

The fifth error assigned was cured by the act of the court below in ruling out the deposition of the witness whose testimony was improperly taken.

It was not necessary that the jury should have had the “ papers” with them. They had the promissory note in their possession and this was all that was necessary.

The seventh and last error assigned, relates to the form and substance of the virdict. It is certainly not a formal verdict, but we think it sufficient in substance. That in an action of debt it exceeds the mere damages laid in the declaration is no sound objection. It does not exceed the principal and interest of the note sued on, and there is no mistaking the meaning and intention of the jury.

Judgment affirmed.