delivered the opinion of the court.

The special cause of demurrer urged by the counsel of the defendant is, that the declaration does not aver any consideration for the several assignments. It is true that a mere equitable assignment of a chose in action, as an executory contract, must have a consideration to support it. Such an assignment is said to be a declaration of trust, with an agreement to permit the assignee to sue in the name of the assignor, (Co. Lit. 232 b, note 1,) and which, available only in equity, would only be enforced so far as there was a good consideration. But it has long been held that the assignment of a bond, as a chose in action, carried with it, by implication, a right to use the name of the assignor, even against his consent, and courts of law will notice and protect the rights of the assignee. The assignment of such chose in action, susceptible of delivery, when completed by delivery, under this doctrine, is scarcely to be called an executory contract. Even, independent of our statute, if the transfer was consummated by delivery, it might take effect as a gift. Licey v. Licey, 7 Barr. 251; 2 Kent 439. But the statute (Rev. Stat. 801, § 2,) provides that assignments of bonds and other writings obligatory shall be good and effectual at law : it gives a legal title to the instrument transferred, and, under its operation, the assignment, when completed by delivery, is clearly a contract executed. Here the declaration not only sets out the mode of the assignment, that it was by writing endorsed upon the bill, but avers that the said bill was then and there delivered to the assignee. Such formal . assignment, so carried into effect, is sufficient at law under our statute, without the aid of any consideration.

That there is no profert of the last assignment, applies only to the first count of the declaration. It is said that a profert must be made whenever the party pleading a deed makes title under it, but this is not universally true. The rule is confined to cases where the party relies on the direct and intrinsic ope*408ration of the deed. Thus, in pleading a feoffment, no proferí is necessary, for the estate passes, not by the deed, but by the livery. Neither is it necessary in pleading an award under seal, though the latter, it seems, is not technically a deed. Steph. PL 437-8 ; lb. 374, &c. The case of an assignment, which though under seal, yet derives none of its effect from that formality, seems to fall, within the rule laid down in Bellamy’s ease, 6 Go. 38. It was there held, “ that when a deed is requisite ex institutions legis, then it ought to be, shown in court, although it concerns a lateral thing, and transfers or conveys nothing.” But when a deed is requisite, ex provisione hominis, then the provision of man shall not change the judgment of law in such case; as if a man makes a lease for years of land to A., on condition that he shall not assign it over but by deed only, and not by parol. In this case, ex provisione hominis, the assignment ought to be by deed, but because ex institutions legis, a deed is not necessary to the assignee; he may plead the assignment without showing the deed. The declaration is sufficient in this respect.

But the breach is not sufficiently averred. The breach of the contract, which is governed by the nature of the stipulation, is essential to the cause of action, and must be properly stated. If money is to be paid to a man, or his assigns, and the action is brought by the assignee, obviously it must be averred in proper terms, that the defendant did not pay to obligee before the assignment, or to the assignees, or either of them, since the assignment. The declaration very unnecessarily notices the other joint and several obligor or maker, which seems to render it necessary to aver that the bill had not been paid, either by him or by the defendant.

Upon this last objection, unless the plaintiff shall ask leave to amend, judgment will go for the defendant.

Cited in Winfield v. City of Hudson, 4 Dutch. 264.