In Merritt v. Bartholick (36 NY 44, 34 How. Pr. 129, 1 Transc. App. 63 [1867]), the Court of Appeals, in reviewing a referee's decision, was faced with the issue of whether the delivery of a mortgage was intended to operate as a valid assignment of the mortgage.

By written assignment (without actual delivery of the bond or mortgage) a bond and mortgage were assigned by plaintiff, John A. Merritt, to an individual, John Campbell.

However, prior to that assignment, Merritt, who was indebted to another individual, Henry T. Wentworth, delivered only the mortgage as collateral security for that separate debt, to Wentworth, but no mention was made of the bond.

The Court held that the assignment to Campbell was valid and the attempted assignment by delivery of the mortgage alone to Wentworth was a "nullity."

Critically, as shown below, the Court stated that the question whether the bond "was, in effect, assigned with the mortgage" to Wentworth, was a matter of intent (36 NY at 45).