if the consideration be proved, and
the meaning of the parties appa-
rent. An obligation of record, or
under seal, may be assigned by a
writing unsealed; Dunn v. Snell, 15
Mass. 481; Dawsony. Coles, 16 John-
son, 51 ; or merely by parol ; Fordx.
Stuart, 19 Johnson, 342; Thompson
v. Emery, 7 Foster, 269. The same
thing has been held of an assignment
of rent before it is due, and while
savoring of the realty, and not merely
of personal obligation; Morton v. Nay-
lor, 1 Hill, 583 ; Esling v. Zantzin-
ger, 1 Harris, 50. The mere deli-
very of the written evidence of a debt,
with an intent to transfer the debt
itself, is therefore sufficient to prove
and constitute an assignment; Jones
v. Witter, 13 Mass. 304 ; Grover v.
Grover, 24 Pick, 261 ; Dennis v.
Twitchell, 10 Metcalf, 180 ; Titcomb
358
EQUITABLE ASSIGNMENTS.
v. Thomas, 5 G-reenleaf, 282 ; Little-
field v. Smith, 5 Shepley, 327 ; Onion
v. Paul, 1 Har. & J. 114; Pres-
cott v. Hull, 17 Johnson, 284 ; Briggs
v. Dorr, 19 Id. 95 J Licey v. Licey,
7 Barr, 251. Thus in Howry v.
TWd, 12 Mass. 284, the delivery of
a written contract, was held a suffi-
cient execution of a contract to assign
it, although there was an assign-
ment in writing endorsed upon it,
and not executed by the assignor.
In like manner the manual tradition
of a mortgage may pass the debt for
which it is a security; Bunyan v.
Mersereau, 11 Johnson, 534; Crain
v. Paine, 4 Cushing, 483 ; and hand-
ing over an execution, evince and
execute an intention to transfer the
judgment on which it is issued ; Jones
t. Witter, 13 Mass. 304; Dunn v.
Snell, 15 Id. 481 ; Presscott v. Hill,
17 Johnson, 28 A ; the delivery operat-
ing, in this as in other cases, as the
proof and consummation of the con-
tract, from which it derives its own
validity.
The same result will follow from
every other act, by which the assignor
unequivocally relinquishes all control
over the right or property in ques-
tion, and manifests his intention that
it shall thenceforth be vested in and
subject to the assignee. Thus, an
order payable out of a particular
fund belonging to the drawer, will
enure as an assignment of the fund
to the payee; Walker v. Mauro, 18
Missouri, 564 ; Peyton v. Hallett, 1
Caines, 363 ; Morton v. Naylor, 1
Hill, 583 ; Clarkv. Mauran, 3 Paige,
373 ; M'Menomy v. Ferrers, 3 John-
son, 72 ; Crocker v. Whitney, 10 Id.
318 ; MLellan v. Walker, 26 Maine,
114 ; Cutis v. Perkins, 12 Mass. 206 ;
Adams v. Robinson, 1 Pick. 461
Legro v. Staples, 16 Maine, 252
Bobbins v. Bacon, 3 Greenleaf, 346
Nesmith v. Drum, 8 Watts & Serg
9 ; Blin v. Pierce, 20 Vermont, 25
Corser v Craig, 1 W. C. C. R. 424
although to bring this principle into
action under the view taken in most
of the states of the Union, the order
must embrace the whole of the fund
in the first instance, or be ratified
subsequently by the assent or accept-
ance of the drawee ; Mandeville v.
Welch, 5 Wheaton, 277 ; Hopkins v.
Beebee, 2 Casey, 85, 88. The effect
will be the same, where the fund is
not in existence at the time when
the draft is drawn, and is the result
of subsequent sales or transactions,
if it be specified with reasonable cer-
tainty in the draft ; Brooks v. Hatch,
6 Leigh, 534; Peyton v. Hallett ; Cutta
v. Perkins. But to bear this con-
struction, the order must be restricted
in terms to the particular fund, and
not be so worded as to be payable
generally; Phillips v. Stagg, 2 Ed-
wards, 108 ; Watson v. The Duke of
Wellington, 1 Russell k Mylne, 602;
3Iandevill( v. Welch) 5 Wheaton, 277;
and a draft, payable generally, will not
operate as an assignment, whether it
takes or fails of effect as a bill ; Luff
v. Pope, 5 Hill, 413 ; 7 Id. 577 ;
Cowpcrthicaitc v. Sheffield, 1 Sand-
ford, Sup. C. R. ; 3 Comstock, 243 ;
Harris v. Clark, lb. 93; Greenfield' s
Estate, 12 Harris, 232, 240. A de-
cision the other way, in Corser v.
Craig, 1 Washington, C. C. R.
424, must yield to the concurrent
weight of authority and reason, which
show that a request to pay gene-
rally out of any funds, and whether
the drawee has any funds in his
ROW V. DAWSON. — RYALL V. BOWLES.
359
hands belonging to the drawer or not,
cannot operate as a transfer or appro-
priation of particular property ; and
that the operation of a bill of ex-
change as an assignment, does not go
beyond that of such a request; Man-
deville v. Welch; Cowperthwaite v.
Sheffield ; Winter v. Drury, 1 Sel-
den, 525. The question was examin-
ed and these principles applied with
much ability in the recent case of
Hopkins v. Beebe, 2 Casey, 85, where
it was also shown that the remittance
of funds with a view to meeting a
particular bill, or drawing a bill on
the fund thus remitted, will not vary
the case, nor defeat the right of the
drawer to appropriate the fund to
other purposes. The dicta in Man-
deville v. Welch would indeed im-
ply that the acceptance of a bill
drawn generally, will give it that effect
as an assignment, which it did not
possess when originally drawn ; but
this would seem at variance with the
reasoning of the court in Hopkins v.
Beebe, and would, moreover, involve
and necessitate the conclusion, that
when bills are drawn at different times
and accepted in the order in which
they are drawn, equity will appropriate
the funds of the drawer in the hands
of the acceptor to that first drawn, to
the exclusion of the last, unless there
is enough to pay all. The accept-
ance of a bill necessarily follows the
tenor of the bill itself, and by impos-
ing a personal liability on the accep-
tor, payable out of his own funds
irrespectively of those of the drawer,
negatives the idea of an engagement
to appropriate any particular fund
to its payment. The point arose and
was decided in the recent case of The
Marine & Fire Ins. Bank of Georgia
v. Jauncey, 3 Sandford, 257, where
it was held that the acceptance of a
draft payable generally, does not vary
its nature, nor convert it into an as-
signment of the property remitted on
account to the drawee; and the court
said to make a bill of exchange ope-
rate as a transfer of the funds, in
view of which it was drawn, it must
cease to be a bill in the sense of
the law merchant. Remittances may,
however, be made for the purpose of
being applied to the payment of a par-
ticular instrument, under circumstan-
ces which will give rise to a trust, and
create an equitable lien or title, which
may be enforced on behalf of all or
any of the holders of the instrument;
The Marine & Fire Ins. Bank of
Georgia v. Jauncey, 1 Barbour, 486 ;
Ex parte Prescott, 3 Deacon & Chitty,
218.
In Chapman v. White, 2 Seldec,
412, checks on public or private bank-
ing institutions were said to stand on
the same footing with bills of ex-
change, and not to operate as an as-
signment or appropriation of the funds
or deposits, against or on which they
are drawn. Edmonds, J., however,
dissented from this conclusion, on the
ground that a check on a bank dif-
fers from a bill, in being limited in
intention, if not in terms, to the
money of the drawer in the hands of
he drawee, and not operating as a
request to pay generally, and conse-
quently held that it should take effect
as an assignment, of so much of the
fund as might be necessary to pay it.
In like manner, a power of attor-
ney to collect a debt, given for a
sufficient consideration, may operate
as an equitable transfer of the debt
to the grantee of the power, where
SCO
EQUITABLE ASSIGNMENTS.
such is manifestly the intention of
the parties, or the purpose for which
it was executed ; Brooks v. Hatch, 6
Lei«h, 534; Gerrish v. Sweetser,
4 Pick. 374; Bromley v. Holland,
7 Vesey, 28; Bergen v. Bennett,
1 Caine's Cases, 1 ; Raymond v.
Squire, 11 Johnson, 47 ; The People
v. Tioga, 19 Wend, 73. And the
same result may follow from a direc-
tion to one man to pay money, which
he owes or which is in his hands, to
a third person, on account or in satis-
faction of a debt due to the latter,
after the power thus given has been
rendered irrevocable by being made
known to the creditor, and receiving
his assent or sanction ; Hodgson v.
Anderson, 3 B. & C. 842 ; Cleric v.
Laurie, 1 Hurlstone & Norman, 452 ;
2 Id. 199 ; the foundation of this
course of decision being, that a power
coupled with an interest or sustained
by a contract, cannot be recalled by
the donor, and may consequently con-
fer a vested right or interest on the
person by or for whom it is to be
exercised, and who will be benefited
by its execution ; Gaussen v. Morton,
10 B. & C. 731; Knaj)}} v. Ahord,
10 Paige, 205 ; 1 American Leading
Cases, 587, 4th ed.
A power can, however, only operate
as a constructive assignment, and
even when irrevocable in terms, and
expressed to be for the use of the
grantee, it may be shown by extrinsic
evidence that it was not intended as
a transfer of the debt, and that he
was only to have a contingent right
to the surplus, after other claims
against the grantor were satisfied;
Gerrish v. Sweetser, 4 Pick. 374. It
was moreover held in Hunt v. Rous-
maniere, 2 Mason, 342 ; 3 Id. 294 ;
8 Wheaton, 174; 1 Peters, 1, that a
power of attorney to sell a vessel and
apply the proceeds in payment of a
debt due the grantee, although so far
coupled with an interest as to be
irrevocable by the grantor, was yet
in essence as it was in terms, a mere
power determinable by his death, and
could not take effect as an assign-
ment, nor transfer any interest in the
property to which it related ; the dis-
tinction being between an interest
in the subject-matter of the power,
which will survive after death, and sus-
tain the power as an incident, and an
interest in the execution of the power,
which necessarily terminates when
the power itself reaches its termina-
tion ; 1 American Leading Cases, 4th
ed. 579 ; Gaussen v. Morton, 10 B.
6 C. 731; Campanari v. Woodburn,
15 C. B. 400. These cases were fol-
lowed in Webb v. Walker, 7 Cushing,
46, and the principle carried still fur-
ther by a decision, that a power re-
served in a contract of sale to the
vendor, to dispose of the thing sold,
and apply the proceeds to the pay-
ment of the purchase-money in the
event of non-payment by the vendee,
was a mere power, although given by
an instrument under seal and for the
purposes of a security, and could not
be enforced as against a subsequent
purchaser who had bought with full
notice of its existence. A similar
view was taken in Fuller v. Emerson,
7 Cushing, 203, and the question
whether an order drawn on a mort-
gagee of chattels, directing him to
sell them and pay the proceeds, after
satisfying the mortgage, to the plain-
tiff, in satisfaction of a debt due to
him by the mortgagor, operated as
an assignment, decided in the nega-
ROW V. DAWSON. — RYALL V. ROWLES.
361
tive. These decisions establish, that
a power to sell or otherwise dispose of
a thing for the benefit of the person
to whom the power is given, is a
power only and not an assignment;
and it might have been thought that
a power to demand and enforce the
payment of a debt, would fall within
the same principle, and operate solely
as a power even when coupled with
full authority to apply the proceeds in
payment of a debt due by the donor,
or in some other manner conducive to
the benefit of the donee. This view
is sustained by the recent case of
Langdon v. Langdon, 4 Gray, 186,
where it was held that a power to col-
lect a note, will not operate as an as-
signment, even when coupled with an
interest in the execution of the power,
unless an interest is given in the note
which forms its subject-matter, and
with respect to which it is to be exer-
cised. The language held in some of
the cases may seem to tend the other
way, and to imply that a power to col-
lect for the use of the person to whom
the power is given, is prima facie
an assignment; Gerrish v. Sweetser,
4 Pick. 374; Watson v. Bagaley, 2
Jones, 164. It is, however, plain that
a power is not identical with a grant,
their nature and mode of operation
being essentially different, even when
they approach each other most nearly
in point of result. All the authorities
agree that what appears on its face to
be intended as a revocable authority,
will not operate as an assignment,
whether put in the form of an order
to make payment, or a power to en-
force it ; Clayton v. Fawcett, 2 Leigh,
19 ; Watson v. The Duke of Welling-
ton, 1 Russell & Mylne, 602; while
the case of Hunt v. Rousmanier,
shows, with equal clearness, that a
power does not lose its own attributes,
or acquire those of a grant by be-
coming irrevocable. When, however,
a power of attorney contains words of
assignment, it may of course operate
as such ; Weed v. Jewett, 2 Metcalf,
608; Stimpson v. Fries, 2 Jones, Eq.
156; and where an assignment or
pledge appears to have been intended,
the intention will not be defeated be-
cause the parties have executed a
power of attorney, as one of the means
of rendering it effectual ; Raymond
v. Squire, 11 Johnson, 47; Knapp
v. Alvord, 10 Paige, 205 ; Watson v.
Bagaley, 2 Jones, 164, Such a power
is not only consistent with an inten-
tion to assign, but must be expressed
or implied, to render the assignment
of a chose in action effectual. But it
may be doubted whether a power can
in any case operate as an assignment
in itself, even when expressed to be
irrevocable, or to be intended solely
for the use of the grantee ; Hunt v.
Rousmanier ; Webb v. Walker; Ro-
gers v. Lindscy, 13 Howard, 441.
When, however, a power to collect
and pay over to or for the benefit of
the creditors of the person by whom
the power is given, has been executed
by the donee of the power, and the
fund is in his hands ready for distri-
bution, the transaction may acquire the
character of a trust and operate as an
assignment, by vesting the right of
property irrevocably in the benefici-
aries; Watson v. Bagaley, 2 Jones,
164; Sharpless v. Welsh, 4 Dallas,
279.
It is necessary, moreover, in order
to constitute an assignment, either in
law or equity, that there should be
such an actual or constructive appro-
362
EQUITABLE ASSIGNMENTS.
priation of the subject-matter assigned,
as to confer a complete and present
right on the assignee, even when the
circumstances do not admit of its im-
mediate exercise. A covenant or pro-
mise on the part of the debtor, to ap-
ply a particular fund in payment of
the debt as soon as he receives it, will
not operate as an assignment, because
it does not give the covenantee a right
to the fund, save through the medium
of the covenantor, and looks to a future
act on his part as the means of render-
ing it effectual, while the characteris-
tic of an assignment, is the relinquish-
ment of all legal or equitable interest
by the assignor, and the creation of a
new and independent right in the as-
signee; Rogers v. Hosack, 18 Wend.
319 ; Hoyt v. Story, 3 Barb. S. C. 262;
Cowperthwaite v. Sheffield, 3 Comst.
243. It should however be remember-
ed, that every thing will operate as an
assignment in equity, which makes it
a duty to assign, and gives one party
a just claim to the rights and reme-
dies of the other. This principle lies
at the foundation of the doctrine of
subrogation, under which insurers,
guarantors, and in general all persons
who have entered into contracts of in-
demnity, for the benefit of others, are
entitled to an actual or constructive
cession of the debt or property guar-
anteed, immediately upon payment of
its amount or value to the creditor or
owner; ante, vol. 2, p. 230 ; Hart v.
The Western Railroad Corporation,
13 Metcalf, 99, 108.
When an assignment from its own
nature, or that of the subject-matter
assigned, does not pass the legal title,
it can only be good as an executory
contract, and requires the assent of
both parties and the support of a con-
sideration. There must consequently
be some evidence of a mutual and
final agreement, and an assignment
contemplated but not executed ; or
not finally and fully assented to by
both parties, will not confer any right
on the assignee ; Foster v. Lowell, 4
Mass. 308 ; Bank of Marietta v. Pin-
dall, 2 Randolph, 465. In like man-
ner, the transfer or delivery of goods
or securities to an agent, as the means
and for the purpose of paying or secur-
ing a debt due to a third person, will
not operate as a legal or equitable as-
signment, nor vest any title in the
creditor, because there is really no
change of possession, and the whole
partakes of the revocable character of
the agency ; Scott v. Parker, 3 Meri-
valc, 662 ; Acton v. Woodgate, 2 M.
& K. 492; Winkley v. Foye, 2 Fogg,
171 ; Hopkins v. Beehe, 2 Casey, 85;
Br ind v. Hampshire, 1 M. & W.
365 ; unless the intention is to create
a trust in the guise of a power or au-
thority; Atkin v. Barwick,\ Strange,
165; Walter v. Ross, 2 W. C. C R.
283; Sharpless v. Welsh, 4 Dallas,
277 ; Watson v. Bagaley, 2 Jones,
164 ; TJie M. & F. Bonk of Georgia
v. Jauncey, 1 Barbour, 486 ; Weston v.
Barker, 12 Johnson, 276 ; or when
the circumstances are such as to
render the person in whose hands the
deposit is made, or to whom the au-
thority is given, the agent of both
parties, and thus enable him to make
the transfer irrevocable by assenting
to it on behalf of the creditor ; Alex-
ander v. Adams, 1 Strobhart, 47 ;
Hodgson v. Anderson, 3 B. & C. 842,
851. Hence, in order to make a
power or authority to collect one debt
or demand, and apply the proceeds
to the payment of another, operate
ROW V. DAWSON.
â– RYALL V. ROWLES.
363
as an assignment, the recipient of the
authority must take or hold it as an
agent for the person in whose favor it
is to be executed, and not merely for
him by whom it is conferred ; Beers
v. Spooner, 9 Leigh, 153 ; Tiernan v.
Jackson, 5 Peters, 580 ; Grant v.
Austen, 3 Price, 58. But there can
be little doubt, that an express or im-
plied promise to receive or hold goods
or assets of any description, for the
benefit of a third person, may give
rise to a duty in his favor, and thus
operate as an equitable assignment,
on receiving his sanction ; although
made without any prior authority to
represent him, or act in any way in
his behalf; and this result will un-
questionably follow, whenever a de-
posit in the hands of one man for the
use of another, has been communicated
to the latter, and been assented to by
him ; Creager v. Link, 7 Maryland,
259 ; Story on Agency, sect. 477. And
while it is plain that money placed by
a debtor in the hands of an agent for
payment to a creditor, may be coun-
termanded by the debtor, it does not
necessarily follow that the agent can
withhold it from the creditor when
there has been no express or implied
command, and while the authority to
make the payment still subsists in full
force; Winkley v. Foye.
The action for money had and re-
ceived, stands, in these respects, on
the same footing with the doctrine of
equitable assignment, neither being
applicable unless the fund in question
is the money of the claimant, and not
merely the money of a third person to
be paid to the claimant ; Williams v.
Everett, 14 East, 582 ; Yates v. Bell,
3 B. & Aid. 643 ; so that the cases on
the one, will generally be in point in
questions arising under the other;
Finney v. Finney, 4 Harris, 380 ;
Hopkins v. Beebee, 2 Casey, 85, 90 ;
Winkley v. Foye; although equity
may unquestionably go further in sup-
port of a trust, than the law can do in
any form of action ; 2 Story's Equity
Jurisprudence, sect. 1041.
A deposit of money, or of assets of
any other description, in the hands of
an agent, as the means of obtaining
credit and inducing others to accept
bills or make advances in any other
form, will, moreover, operate as an as-
signment in favor of those to whom it
is made known, and who evince their
assent to it by subsequent action : be-
cause the law will then imply a con-
tract of pledge or mortgage, which
will fasten upon and bind the pro-
perty; Curran v. The State of Ar-
kansas, 15 Howard, 305.
We have seen, that nothing can take
effect as an assignment, which does not
manifest an intention to relinquish the
right of dominion on the one hand,
and create it on the other ; and to give
a contract to pay out of a particular
fund, or that specific property shall be
applied to the payment of a debt, the
force and effect of a transfer, as dis-
tinguished from a mere contract, it
must be meant as an appropriation of
the fund or property in question to
the use of the assignee, and be some-
thing more than a mere purpose or
promise to use or apply it for his bene-
fit, which still leaves the whole in the
control of the promisor ; Dickenson v.
Phillips, 1 Barbour, 454 ; Rogers v.
Hosack's Executors, 18 Wend. 319;
Hall v. Jackson, 20 Pick. 194. It
necessarily follows, that a draft or
order cannot operate as an assignment,
unless it is free from every condition
364
EQUITABLE ASSIGNMENTS.
or limitation inconsistent with a pre-
sent and absolute right in the payee;
Clayton v. Fawcett, 2 Leigh, 19 ;
Brooks v. Hatch, 6 Id. 534. It is
however plain, that an order drawn
on a debtor, and delivered to a credi-
tor as a means of security or pay-
ment, stands on a very different foot-
ing from an oral or written direction
or request to the debtor, unattended
by delivery, and susceptible of being
construed as a mere authority, and
not as a final and binding appropria-
tion ; Clayton v. Fawcett. The exe-
cution and delivery of an unqualified
order for the payment of money out
of a particular fund, or the surrender
of property of any description, ad-
dressed to a person by whom the
money is due or in whose hands the
property has been deposited, amounts,
prima facie, to an appropriation of
the fund, and will, consequently,
operate as an equitable assignment in
the absence of evidence of a contrary
intention ; Brooks v. Hatch, 6 Leigh,
534 ; and the same result will follow
from every act or declaration by the
owner of a fund or debt, founded upon
or sustained by a sufficient considera-
tion which transfers the dominion over
it to another, and makes it the duty
of those in whose hands it is placed, to
pay it to the latter without waiting for
the further intervention of the owner;
Sharpless v. Welsh, 4 Dallas, 277.
In order, however, to constitute an
equitable assignment, in this or any
other manner, the amount and na-
ture of the property assigned must
be certain, or capable of being re-
duced to a certainty. A promise by a
debtor to direct his agent to hand
over a sufficient amount of the pro-
perty in his hands, to cover as many
of the drafts held by the creditor, as
may eventually remain unpaid, will not
confer an equitable right or interest
on the creditor as against assignees
whose title dates from an act of bank-
ruptcy, subsequent to the period at
which the promise was given, but be-
fore the amount due on the bills has
been finally ascertained, and while
the quantity of property necessary for
their payment consequently remains
still uncertain; Carvalho v. Burn,
4 B. & Ad. 382; 1 A. & E. 883.
When, however, the question subse-
quently arose in equity, it was decided
the other way, and the contract said
to confer an equitable lien which would
be specifically enforced by chan-
cery; not only as between the parties,
but against the assignees whose rights
rose no higher than those of the
bankrupt under whom they claimed;
Burn v. Carvalho, 7 Simons, 109 ;
4 Mylne & Craig, 690. This discre-
pancy of opinion is the more remark-
able, because the question arose out
of proceedings in bankruptcy, and
Lord Lyndhurst, in giving his opinion
in the Exchequer Chamber, had ex-
pressly taken the ground, that no legal
or equitable title had vested in the
creditor.
There are a number of cases which
might seem to imply, that there can
be no appropriation until the assignor
has done all that lies in his power to
appropriate, and that delivery is, con-
sequently, necessary to the validity of
an assignment, when the circumstan-
ces are such as to render it practi-
cable; Cox v. Hill, 6 Maryland, 274;
Palmer v. Merill, 6 Cushing, 282;
Whittle v. Skinner, 23 Vermont,
531. The true rule would, however,
seem to be, that although delivery
ROW V. DAWSON. — RYALL V. ROWLES.
365
may be requisite to give validity to a
legal or equitable transfer, as against
creditors or bona fide purchasers;
Clemson v. Davidson, 5 Binney, 398 ;