sidered only as general creditors.



" The great wisdom and policy of the sages and founders of our law," says
Lord Coke, " have provided, that no possibility, right, title, nor thing in action,
shall he granted or assigned to strangers, for that would be the occasion of
multiplying of contentions and *snits, of great oppression of the peo-
L -" pie, and chiefly of terre-tenants, and the subversion of the due and
equal execution of justice :" 10 Co. 48. See Lampct's case, 10 Co. 47. But
it is to be observed, that the king was always an exception to this rule, for he
might always either grant or receive a possibility or chose in action by assign-
ment : Co. Litt. 232, b, n. 1; Com. Dig. "Assignment/' (D.) 555; Miles v.
Williams, 1 P. Wins. 252; Stafford \^ Buckley, 2 Yes. 177, 181.

Formerly, it was doubted whether an annuity was assignable, though " as-
signs" were mentioned in the grant; the argument being, that it was a mere
personal contract, and therefore a chose in action. See the cases in 2 Vin.
Abr. 515, and 3 Vin. Abr. 151. But, in a case in C. B., 3 Cha. 1, this ob-
jection, which, in strictness of law, carried force with it, was overruled : Ger-
rard v. Boden, Hetl. 80. It seems, too, that naming "assigns" is not essen-



ROW V. DAWSON. — RYALL V. ROWLES. 307

tial to the making an annuity assignable, the principled the objection to its
being so being the same, -whether "assigns" are mentioned or omitted. How-
ever, Perkins, in the special case of an annuity pro consilio impendendo, re-
quires naming of "assigns:" Perk. s. 101. Even there, too, he questions
the annuity being assignable. But this was settled in Mannd's case, 7 Co.
28, b, one point resolved being, that express words would make such an annuity
assignable : Co. Litt. 144, b, n. It may here be remarked, that a possibility,
coupled with an interest, was devisable, and might be released : Watk. Con-
vey. 219.

The reasons given by Lord Coke for this rule of law, which prevents the
assignment of a possibility or chose in action, has been almost wholly disre-
garded by courts of equity ; and, accordingly, from a very early period, as-
signments of a mere naked possibility, or of a chose in action for valuable
consideration, have been held valid in courts of equity, which will carry them
into effect upon the same principle as they enforce the performance of an agree-
ment when not contrary to its own rules or public policy. See Anon., Freem.
Ch. Rep. 145; Squib v. Wyn, 1 P. Wms. 381. "Such an assignment,"
observes Lord Hardwieke, "always operates by way of agreement or contract,
amounting, in the consideration of the Court, to this, that one agrees with
another to transfer and make good that right or interest : Wright v. Wright,
1 Ves. 412 ; and, like any other agreement, the court will cause it to be spe-
cifically performed, (not leaving the assignee to his action for damages,) when
the assignor is in a condition to transfer the property, or to cause it to be trans-
ferred, to his assignee."

Although it is usual, in transferring a chose in action, as a *debt
or bond, to assign it by a deed in legal form, with a power of attor- •- -■
ney to sue in the name of the assignor, it is clear, as is laid down by Lord
Hardwieke, in the principal case of Row v. Dawson, that " no particular words
are necessary." Any words, in fact, are sufficient which show an intention
of transferring or appropriating the chose in action to or for the use of the
assignee. See Thompson v. Speirs, 13 Sim. 469 ; Burn v. Carvalho, 4 My.
& Cr. 690 ; Cook v. Black, 1 Hare, 390 ; M'Fadden v. Jenkyns, 1 Hare, 458;
1 Ph. 153; Malcolm v. Scott, 3 Hare, 39, 52; 6 Hare, 570; 3 Mac. & G.
29 ; Myer v. The United Guarantee, dx., Company, 7 De Gr. Mae. & Gf. 112.

A mere expectancy, as that of an heir-at-law to the estate of his ancestor,
(Holson v. Trevor, 2 P. Wms. 191 ; Wethered v. Withered, 2 Sim. 183, 192;
Smith v. Baker, 1 Y. & C. C. C. 229 ; sed vide Carleton v. Leighton, 3 Mer.
671,) or the interest which a person may take under the will of another then
living, {Beckley v. Newland, 2 P. Wms. 182 ; Bennett v. Cooper, 9 Beav.
252; and see ante, vol. 1, 483,) or the share to which such person may be-
come entitled to under an appointment, (3Iusprat v. Gordon, 1 Anst. 34,) or
in personal estate, as presumptive next of kin of a person then living, (Hinde
v. Blake, 3 Beav. 235; Meek v. Kettlewell, 1 Ph. 347,) is assignable in equity
for valuable consideration ; and where the expectancy has fallen into posses-
sion, the assignment will be enforced.



3Qg EQUITABLE ASSIGNMENTS.






It is needless to cite any authorities to prove that in equity a person may
assign a legacy or share of a residue. So, non-existing property, to be acquired
at affixture time, though not assignable at law, {Robinson v. Macdonald, 5
Mau. & Sel. 228,) is clearly so in equity ; the assignment, for instance, of the
future cargo of a ship, is valid in equity. See In re Ship Warre, 8 Price,
269 n. ; Curtis v. Auber, 1 J. & W. 526 ; Douglas v. Russel, 4 Sim. 524 ;
S. C. 1 My. & K. 488 ; Langton v. Horton, 3 Beav. 464 ; 1 Hare, 549 ;
Lindsay v. Gibbs, 22 Beav. 522; and there can be no doubt that a covenant
to charge, or dispose of, or affect lands hereafter to be acquired, operates in
equity upon lands so afterwards acquired : Metcalfv. The Archbishop of York,
1 My. & Cr. 547; Lyde v. Mynn, 4 Sim. 505 ; S. C, 1 My. & K. 683 ;Wel-
lesley v. Wellesley, 4 My. & Cr. 579.

It may here be mentioned, that, by 8 & 9 Vict. c. 106, s. 4, it has been enacted,
" that, after the 1st day of October, 1845, a contingent, an executory, and a
future interest, and a possibility coupled with an interest, in any tenements or
hereditaments of any tenure, whether the object of the gift, or limitation of
such interest, or possibility, be or be not *ascertained ; also a right of
[*654] entryj w hether immediate or future, and whether vested or contingent,
into or upon any tenements or hereditaments in England, of any tenure, may
be disposed of by deed; but that no such disposition shall, by force only of
this Act, defeat or enlarge an estate tail." It also enacts, that, dispositions
by married women must be in conformity with 3 & 4 Will. 4, c. 74, and 4 &

5 Will. 4, c. 92.

This Act, it will be observed, does not render assignments of contingent
interests, or possibilities in chattels, or mere naked possibilities, not coupled
with an interest, valid at law ; the exclusive jurisdiction, therefore, of courts of
equity as to such assignments is untouched by the Act.

In equity, an order given by a debtor to his creditor upon a third person,
having funds of the debtor, to pay the creditor out of such funds, is a bind-
ing equitable assignment of so much money. Nor is it necessary, as it would
appear by some of the decisions at law, that the party receiving the order
should, in some way, enter into a contract; Burn v. Carvalho, 4 My. & Cr.
702, 703.

In Yeatcs v. Groves, 1 Ves. jun. 281, Dawson being indebted to Yeates and
Browne upon a note of hand, in September, 1789, they gave up to him the
note, upon his giving to them an order, directed to Groves and Dickinson, who
had agreed to purchase some leasehold property of him, to pay the amount of
the note and interest to Browne out of the purchase-money. The order was
not accepted in writing, although it seems Groves and Dickinson verbally
agreed, that, when the assignments were prepared and the purchase-money
was to be paid, Browne should receive notice to attend. In December, 1786,
the assignments being prepared, Browne attended, in consequence of notice ;
but before the transaction could be gone through, Dawson went out of the
room, and was arrested, and in January, 1790, a commission of bankrupt is-
sued against him. Upon a bill being filed by Yeates and Browne, Lord Thur-



ROW V. DAWSON. — RYALL V. ROWLES. 309

low held, that the order was an equitable assignment of- the purchase-money.
"This," said his Lordship, " is nothing but a direction by a man to pay part
of his money to another for a foregone valuable consideration. If he could
transfer, he has done it; and it being his own money, he could transfer. The
transfer was actually made. They were in the right not to accept, as it was
not a bill of exchange. It is not an inchoate business. The order fixed the
money the moment it was shown to Groves and Dickinson."

In Ex parte Alderson, 1 Madd. 53, K. being pressed to discharge a debt,
on the fifth of August, 1813, gave to two creditors, a draft on the executor of
a debtor of hers, which draft the executor ^promised to discharge on
receiving assets. A commission of bankrupt issued against R. on 17th L J
of November, 1814. Upon a petition being presented by the two creditors,
it was held, by Sir Thomas Plumer, M. R., that they were entitled to the sum
for which the draft was given, as against the assignees. " Is this draft," said
his Honor, "to be considered in equity as an assignment of the debt, which
is a chose in action ? And did not the executor bind himself to pay it? I
think this was a good equitable assignment of the debt, and that the executor

bound himself to pay it when in possession of sufficient assets If

R. had remained solvent, the petitioner might, by a bill in equity, have ob-
tained the benefit of the assignment : S. C, 3 Swanst. 392 ; affirmed on ap-
peal, nom. Ex parte South; and Lord Eldon said, that the debtor would be
bound by the order being shown to him, and that a contract on his part to pay,
was, in equity, not necessary.

In Lett v. Morris, 4 Sim. 607, A. having contracted to pay to B. £2360 by
instalments, B. signed and gave to C, for valuable consideration, an order
authorizing A. to pay parts of each instalment to C, and £460 was to be re-
served in A.'s hands out of the balance of the contract, and C/s receipt was
to be a discharge to A. A. was served with notice of the order on the day on
which it was signed. It was held, by Sir L. Shadwell, V. C, that the order
operated as an equitable assignment of the sums therein mentioned.

In Burn v. Carvalho, 4 My. & Cr. 690, A., having goods in the hands of
B. as his agent at a foreign port, and being under liabilities to C, by letter to C.,
promised that he would direct, and by a subsequent letter to B. did direct B. to
deliver over the goods to D., as the agent of C at that port. Before the de-
livery of the goods, a commission of bankrupt issued against A., under an act
of bankruptcy committed while his letter was on its way to B., and the goods
were delivered by B. to D. in ignorance of the bankruptcy. Lord Cottenham,
affirming the decision of Sir L. Shadwell, V. C. (7 Sim. 109,) held, that C.
had a good title in equity to the goods. And see Crowfoot v. Gurney, 2
Moo. & Scott, 473 j Diploch v. Hammond, 2 Sm. & Giff. 141 ; 5 De G.
Mac. & G. 320 ; L' Estrange v. L' Estrange, 13 Beav. 281 ; Riccard v.
Prichard, 1 K. & J. 277 ; Jones v. Farrell, 3 Jur. N. S. 751 ; Ex parte
Imbert, 1 De G. & J. 152.

A mere mandate from a principal to his agent, not communicated to a third
person, will give him no right or interest in the subject of the mandate. It



>^Q EQUITABLE ASSIGNMENTS.



may be revoked at any time before it is executed, or at least before any
en°-a°-ement is entered into with *a third person to execute it for his
[*656] k e ° e fit. And it will be revoked by any disposition of the property
inconsistent with the execution of it : Scott v. Porcher, 3 Mer. 652, 664.
"Where for instance, an order is given by a man to his bankers to pay over a
sum to a third person, to whom the order is not communicated, and the
banker does not make the payment, and the order is afterwards counter-
manded, the third party cannot insist on the banker paying to him the money.
MorreU v. Wooten, 16 Beav. 197.

A mere power of attorney or authority to a person to receive money, and
directing him to pay it to a creditor of the party granting the power or autho-
rity will not amount to an equitable assignment. Thus in Rodick v. GandcU,
1 De G. Mac & G. 763, a railway company was indebted to the defendant,
their engineer, who was greatly indebted to his bankers. The bankers having
pressed for payment or security, the defendant, by letter to the solicitors of
the company, authorized them to receive the money due to him from the
company, and requested them to pay it to the bankers. The solicitors, by
letter, promised the bankers to pay them such money on raising it. It was
held by Lord Truro, C, affirming the decision of Lord Langdale, M. R., (re-
ported 12 Beav. 325,) that this did not amount to an equitable assignment of
the debt. " The extent of the principle," said his Lordship, " to be deduced
from the cases is, that an agreement between a debtor and a creditor that the
debt owing shall be paid out of a specific fund coming to the debtor, or an
order given by a debtor to his creditor upon a person owing money or holding
funds belonging to the giver of the order directing such person to pay such
funds to the creditor, will create a valid equitable charge upon such fund ; in
other words, will operate as an equitable assignment of the debts or fund to

which the order refers I think that a decision, that the authority to

the solicitors contained in the letter to receive the debt due from the railway
company, and to pay what should be received to the bank, operated as an
assignment in equity of the railway debts, would be to extend the principle
much beyond the warrant of the authorities ; and I also think that the effect
of such a decision upon the interest of persons giving orders of the like de-
scription, might be very injurious, and would be contrary to the intention of
the parties to the transaction. If an assignment of the debts had been in-
tended, it would have been quite as easy to have directed the order to the
railway company as to the solicitors. It rather seems to have been intended
r* C r - i that the bank should have no title or interest in the *debts until the
*â–  amount of the debts should have been adjusted, and some definite

portion been adjusted and realized."

In Bell v. The London and North Western Railway Company, 15 Beav.
548, a railway contractor gave his bankers a letter directing the railway com-
pany to pass the cheques which might become due to him " to his account
with the bank." It was held by Sir John Romilly, M. R., that this was not
an equitable assignment, but that it would have been so if the letter had






ROW V. DAWSON. — RYALL V. ROWLES. 311

directed the cheques to be passed to the bank. " In Ex parte South, 3 Swaust.
392, and in Lett v. Morris, 4 Sim. 607/' said his Honor, " the order was to
pay the debt to the third party unconditionally, not to the third party on
behalf of the creditor, or to be held by him for the benefit of the creditor as
his mere agent to receive the money. An order of that description would
always be revocable by the person giving it, but not so an order to pay to the
third person absolutely. Bum v. Carvalho, 4 My. & Cr. 690, was the case
of an order to pay to a third person absolutely. This was also the case of
Tihbltts v. George, 5 Ad. & Ell. 107. If a creditor employ a person to collect
the debts due to him, and inform the debtor that such person has authority to re-
ceive the debt due, this would not be an assignment of the debt to the agent,
even though the agent should be a creditor of his principal ; but the debtor
might, with propriety, and without risk, afterwards pay the debt to the cre-
ditor, or to any fresh agent whom he might appoint to receive it. If this
were not so, the result would be that when once any person had authorized an
agent to receive a debt, the debtor could never safely pay another agent, or
even the creditor himself, without receiving proof that the creditor did not
owe any money to the person whom he first had constituted his agent to re-
ceive it." See also Flint v. Walker, 5 Moore's P. C. C. 179.

Where an instrument is construed, not as a mere equitable assignment, but
as an order for payment of a sum of money out of a particular fund, unless
it be stamped as required by 55 Geo. 3, c. 184, (Sched. part 1, tit. Inland
Bill,) it cannot be enforced in equity. Lord Braybrooke v. Meredith, 13
Sim. 271; Parsons v. Middleton, 6 Hare, 261, but where an instrument
though in form an order for the payment of money, operates as an equitable
assignment, if properly stamped as an assignment, it will be received by the
Court. Diplock v. Hammond, 2 Sm. & Gk 141 ; 5 He G-., Mac. & G. 320 ;
M'Gowan v. Smith, 26 L. J. N. S. (Ch.) 9.

The courts both of law and equity have repeatedly decided, that where a
creditor, on whose behalf a stake has been deposited by the debtor with a
third person, *receives notice of that fact from the stakeholder, the r#pco-i
notice will convert the stakeholder into an agent for, and a debtor to,
that creditor ; and those cases have been decided on the ground, that the cre-
ditor may, on the faith of the notice, have forborne to sue. Per Sir James
Wigram, V. C, in Kirioan v. Daniel, 5 Hare, 500.

Courts of common law have, of late years, borrowed, and will, to a consider-
able extent, act upon the doctrines of equity with regard to the assignment of
choses in action. See Master v. Buller, 4 T. R. 340. But still, in many
cases, proceedings cannot be adopted, either so conveniently or effectually, at
law as in equity. Where, for instance, the debtor assents to the transfer of a
debt, an action may be brought at law against him, on the implied promise to
pay, {Israel v. Douglas, H. Black. 239 ; Baron v. Husband, 4 B. & Ad.
611 ; 2 Addison on Contracts, 1106, et seq. ;) but if he does not, it can only
be brought in the name of the assignor, though in equity, as has been before
shown, the assent of the debtor is not required, and proceedings may be there



312 EQUITABLE ASSIGNMENTS.

taken by the assignee in his own name. But it has been decided, that, if a
bill is filed in a simple case, where the plaintiff has obtained from a person
from whom a debt was due, a right to sue in his name for the debt, a demurrer
will be allowed, unless it is alleged that the assignor refuses his name to be
used, or obstructs proceedings against the debtor. And in Hammond v.
Messenger, 9 Sim. 327, where there was no such allegation, Sir L. Shad-
well, V. C, observed, that it was quite new to him that, in such a simple case
as that, the Court allowed, in the first instance, a bill to be filed against the
debtor, by the person who had become the assignee of the debt. But his
Honor added, u I admit, that, if special circumstances are stated, and it is re-
presented, that, notwithstanding the right which the assignee has obtained to
sue in the name of the creditor, the creditor will interfere and prevent the
exercise of that right, a court of equity will interfere, for the purpose of pre-
venting that species of wrong being done ; and if the creditor will not allow
the matter to be tried at law in his name, the Court has jurisdiction, in the
first instance, to compel the debtor to pay the debt to the plaintiff; especially
in a case where the act done by the creditor is done in collusion with the
debtor." See also Keys v. Williams, 3 Y. & C. Exch. Ca. 466 ; Rose v.
Clarke, 1 Y. & C. C. C. 534.

Choses in Action of a, Married Woman — how far assignable.] — Nothing is
clearer than that a husband only becomes entitled upon marriage to a qualified
PfiWI ^ nteres * * n *^ e choses in action and reversionary personal property *of
his wife ; and if he does not, during his lifetime, reduce them into
possession, they will belong to his wife surviving him ; and upon the principle,
that a husband can give no better right to another than he has himself, it is
now well established, that all assignments made by the husband of the wife's
choses in action or reversionary personal property, whether vested or contin-
gent, which are not, or cannot be, then reduced into possession, whether the
assignment be in bankruptcy, or under the Insolvent Act, or to trustees for
payment of debts, or to a purchaser for valuable consideration, even although
the wife joins therein, pass only the interest which the husband himself has,
subject to the wife's legal right by survivorship.

The first case in which this subject was thoroughly discussed was Hurnshij v.
Lee, 2 Madd. 16; there a husband and wife assigned a reversionary interest
of the wife in certain trust stock, as a security for payment of an annuity
granted by the husband. The husband afterwards took the benefit of the
Insolvent Debtors' Act, and a general assignment was made of his property.
The person on whose death the wife was to take, died, and then the husband
died without having done any other act to reduce the stock into possession ; it
was held by Sir Thomas Plumer, V. C, that the wife was entitled by survi-
vorship to the stock, as against both the particular and general assignee.
" The husband," observed his Honor, " has a risht to his wife's choses in ac-

A*

tion, provided he reduces them into possession. Is a deed assigning a rever-
sionary interest a reduction into possession ? It is impossible actually to reduce
a reversionary interest into possession. Is it, then, a constructive reduction



ROW V. DAWSON. — RYALL V. ROWLES. 313

into possession ? The assignment puts the assignee of the husband in the
same situation as the husband ; and if the husband survives the wife, the
assignee is entitled to the property; but here the husband died before the wife,
and the assignee, therefore, is not entitled to the property. According to
Mitford v. Mitford, (9 Ves. 87,) it is clear that the general assignment in
bankruptcy does not pass a reversionary interest in the wife, she surviving her
husband. It must be the same as to the assignment under the Insolvent
Debtors' Act; nor do I see what answer can be given to the observation of
Mr. Cooke, that a particular assignee cannot be in a better situation than an
assignee under the general assignment in bankruptcy." And see the import-
ant cases of Purdeio v. Jackson, 1 Russ. 1 ; Honner v. Morton, 3 Russ. 65,
where the reversionary interest of the wife was vested ; and Watson v. Dennis,
3 Russ. 90 ; Stamper v. Barker, 5 Madd. 157 ; Box v. Box, 2 C. & L. 605;
Box v. Jachson, 1 Dru. 55. *In Le Vasseurv. Scratton, 14 Sim. 116, a r^ppn-i
female infant, being entitled to the reversion of a chose in action, ex-
pectant on the decease of the survivor of A. and B., she and her husband cove-
nanted, in contemplation of their marriage, to assign it to trustees, in trust,
as to one moiety, for the husband absolutely, and as to the other moiety, for
the wife and the issue of the marriage. The husband died first, and afterwards
A. and B. died. It was held, by Sir L. Shadwell, V. C, that the chose in
action survived to the wife, and that she was entitled to have it transferred
to her.

In Honner v. Morton, 3 Russ. 69, there is a dictum of Lord Lyndhurst's,
" that, where the husband has the power of reducing the property into posses-
sion, his assignment of the chose in action of the wife will be regarded as a
reduction of it into possession."

However, it seems now to be clearly established, that, whether the husband
dies in the lifetime of the person having a prior interest, whereby the chose
in action cannot, as against the wife, be reduced into possession, or whether
he survives and dies before it is reduced into possession, the same result fol-
lows, — the chose in action will survive to the wife. Thus, in Ellison v. Elwin,
13 Sim. 309, by articles entered into on the marriage of a female infant, she
and her intended husband agreed to assign, on her attaining twenty-one, a
share of her deceased grand-father's residuary estate, to which she was entitled
under the trusts of his will, to trustees, in trust for themselves and their chil-
dren. After the lady had attained twenty-one, a settlement was made, for the
purpose of carrying the articles into effect, to which the husband and wife
and the trustees were the only parties ; but before the settled property was
transferred to the trustees, the husband died. It was held, by Sir L. Shad-
well, V. C, that the wife's right to the property by survivorship was not
barred. The principle of this decision was followed by the Vice-Chancellor
Knight Bruce, in Asliby v. Ashby, 1 Coll. 553. In that case, a husband, for
a valuable consideration, assigned a legacy, to the payment of which his wife