it, the property assigned remains liable to process of foreign attachment, in behalf of the creditors of the assignor until a sufficient number and amount, to absorb the fund assigned, have expressly notified to the assignee, their assent to the provisions of the assignment on their behalf, and the assignee has made a valid contract to keep the same for them.1] § 1047. In order to constitute an assignment of a debt or other chose in action, in equity, no particular form is necessary. A draft drawn by A. on B., in favor of C., for a valuable consideration, amounts (as we have seen) to a valid assignment to C. of so much of the funds of A. in the hands of B.2 So indorsing and delivering a bond to an assignee for a valuable consideration amounts to an assignment of the bond. Indeed, any order, writing, or act, which makes an appropriation of a fund, amounts to an equitable assignment of that fund. The reason is, that the fund, being matter not assignable at law, nor capable of manual possession, an appropriation of it is all that the nature of the case admits of, and therefore it is held good in equity.5 An assignment of a debt may be by parol, as well as by deed. As the assignee is generally entitled to all the remedies of the assignor, so he is [* Merrill v. Englesby, 28 Vt. 150.] 2 Ante, § 1043; Row v. Dawson, 1 Ves. 332; Crowfoot v. Gurney, 9 Bing. 372; Smith v. Everett, 4 Bro. Ch. 64. [In order to constitute an assignment, the particular fund from which the order is to be paid, must be specified. If the order is general in form, it will not make it an assignment, that there was but one fund in hands of debtor, or that there were circumstances showing intent to charge that fund. See Hutter v. Ellwanger, 4 Lans. (N. Y.) 8; Lunt v. Bank of North America, 49 Barb. 221. But an order on a particular fund amounts to an assignment in equity, and after notice to the debtor, is good against attaching creditors of the drawer. Kingman v. Perkins, 105 Mass. 111; Moore v. Lowrey, 25 Ia. 336; McWilliams v. Webb, 32 Ia. 577; Shuttleworth v. Bruce, 7 Robt. (N. Y.) 160; Superintendent, &c., of Public Schools v. Heath, 2 McCarter (N. J.), 22. That it is not sufficient unless notice is given to the debtor by procurement of assignee, see Barron v. Porter, 44 Vt. 587. Where A. had a cargo of wheat in the hands of a factor for sale, and borrowed money on the faith of it, giving his acceptance expressed to be in consideration of "value received in wheat, ex Maraquita,” and it was verbally agreed, that the acceptance should be renewed from time to time, till the proceeds of the cargo were realized: Held, not an equitable assignment or charge. Field v. Megan, L. R. 4 C. P. 660.] 3 Row v. Dawson, 1 Ves. 332; Ryall v. Rolles, 1 Ves. 348, 375; Townsend r Windham, 2 Ves. 6; 1 Mad. Pr. Ch. 484; Ex parte Alderson, 1 Mad. 53; Barn r. Carvalho, 4 Mylne & Craig, 690, 702; Yeates v. Groves, 1 Ves. Jr. 280, 281; Er parte South, 3 Swanst. 393. 4 Morton v. Naylor, 1 Hill, N. Y. 583; Burn v. Carvalho, 4 Mylne & Craig, 690, 702. 398. 5 Clemson v. Davidson, 5 Binn. 392, 6 Heath v. Hall, 4 Taunt. 326 to 328; s. c. 2 Rose, 271; Tibbitts v. George, 5 Adolph. & Ellis, 107, 115, 116. [That de livery is sufficient, see Galway v. Fullerton, 2 C. E. Green, 389.] generally subject to all the equities between the assignor and his debtor. But, in order to perfect his title against the debtor, it is indispensable that the assignee should immediately give notice of the assignment to the debtor; for, otherwise, a priority of right may be obtained, by a subsequent assignee, or the debt may be discharged by a payment to the assignor before such notice.2 § 1047 a. In cases of assignments of a debt, where the assignor has collateral security therefor, the assignee will be entitled to the full benefit of such securities, unless it is otherwise agreed between the parties. Thus, for example, the assignee of a debt secured by a mortgage, will be held in equity entitled to the benefit of the mortgage. So, in equity, although not at law, if a debtor, having goods in the hands of his agent at a foreign port, sends a letter to his creditor C., promising to direct B. to deliver over the goods to D. as the agent of C. at the port, and while the letter is on its way to B. the debtor becomes bankrupt, the creditor will still be held entitled to the goods.5 1 1 Mad. Pr. Ch. 435, 436; Priddy v. Rose, 3 Meriv. 86; Coles v. Jones, 2 Vern. 602; Murray v. Lylburn, 2 Johns. Ch. 441; post, § 1057. [But not to equities of intermediate assignees. Downey v. Tharp, 63 Penn. St. 322. But where agreement of parties calls for an obligation running to "bearer," and the obligation is made to run to "bearer," accordingly equity will give it effect according to the intent, and a bona fide purchaser can enforce it without liability to the equities between the original parties. Ex parte New Zealand Banking Co., L. R. 3 Ch. App. 154. So where, under similar circumstances, a debenture run to "order." Ex parte City Bank, L. R. 3 Ch. App. 758; but otherwise, where, though the debenture ran to "holder," the contract under which it was issued did not call for bonds payable to holder. In re Natal Investment Co., L. R. 3 Ch. App. 355. And wherever the terms of the contract show the intent that it should be assignable free of the equities of the original parties, equity will effectuate the intent, e. g., in case of open letter of credit. Ex parte Asiatic Banking Co., L. R. 2 Ch. App. 391; and see Dickson v. Swansea, &c. R. Co., L. R. 4 Q. B. 44; Graham v. Johnson, L. R. 8 Eq. 36. A debt accrued due after notice of assignment, though on a contract entered into before such notice, e.g., rent on a lease, cannot be set off unless the transactions are so connected as to show that a set-off was originally intended. Watson v. MidWales R. Co., L. R. 2 C. P. 593; and see Higgs v. Northern A. Tea Co., L. R. 4 Ex. 387.] 2 Foster v. Blackstone, 1 M. & Keen, 297; Timson v. Ramsbottom, 2 Keen, 35; Meux v. Bell, 1 Hare, Ch. 73; ante, § 421 a, 399, note (1), 1035 a; Loomis v. Loomis, 26 Vermont, 198; Ward v. Morrison, 25 id. 593; post, § 1057. [See Upton v. Moore, 44 Vt. 552; Green v. Ingham, L. R. 2 C. P. 525. But see Gayoso Sav. Instn. v. Fellows, 6 Cold. (Tenn.) 467; Kennedy v. Parke, 2 C. E. Green, 415.] 3 Foster. v. Fox, 4 Watts & Serg. 92. [So the guaranty of a previous assignor of a mortgage passes as incident. Craig v. Parkis, 40 N. Y. 181. So in case of assignment of note, where there is a vendor's lien. Perry v. Roberts, 30 Ind. 244; Gay v. Butler, 6 Bush (Ky.), 508; Magruder v. Campbell, 40 Ala. 611. Per con., Lindsey v. Bates, 42 Miss. 397.] 4 Pattison v. Hull, 9 Cowen, 747; Cathcart's Appeal, 1 Harris, 416; [Hurt v. Wilson, 38 Cal. 263]. 690. 5 Burn v. Carvalho, 4 Mylne & Craig, § 1048. It is principally in cases of assignments that courts of equity have occasion to examine into the doctrine of champerty and maintenance; and therefore it may be here proper to glance at this important topic. Champerty (campi partitio) is properly a bargain between a plaintiff or a defendant in a cause, campum partire, to divide the land or other matter sued for between them, if they prevail at law; whereupon the champertor is to carry on the party's suit at his own expense.1 Maintenance (of which champerty is a species) is properly an officious intermeddling in a suit, which no way belongs to one, by maintaining or assisting either party with money or otherwise, to prosecute or defend it. Each of these is deemed an offence against public justice, and punishable accordingly, both at the common law and by statute, as tending to keep alive strife and contention, and to pervert the remedial process of the law into an engine of oppression.3 1 4 Black. Comm. 135; 2 Co. Inst. 564; Williams v. Protheroe, 3 Younge & Jerv. 139; Thalhimer v. Brinckerhoff, 20 Johns. 386; s. c. 3 Cowen, 623; [Harman v. Brewster, 7 Bush (Ky.), 355; Cassedy v. Jackson, 45 Miss. 397]. 24 Black. Comm. 135. Ibid. Hawkins, in his Pleas of the Crown, Vol. 1, B. 1, ch. 86, § 1 (Leach's edit. 1795), says: "It seemeth to be a high offence at common law to buy or sell any doubtful title to lands known to be disputed, to the intent that the buyer may carry on the suit, which the seller doth not think it worth his while to do, and on that consideration sells his pretensions at an under rate. And it seemeth not to be material whether the title so sold be a good or a bad one, or whether the seller were in possession or not, unless possession were lawful and uncontested." This is laying down the doctrine very broadly, and more broadly than it is laid down in Blackstone's Commentaries (4 Black. Comm. 135). The statute of 32 Henry VIII. ch. 9, provides, "that no person or persons whatsoever shall bargain, buy, or sell, or by any ways or means, obtain, get, or have any pretended rights or titles to take, promise, grant, or covenant to have any right or title of any person or persons to any manors, lands, tenements, or hereditaments, but if (unless) such per son or persons, their ancestors, or they by whom they claim the same, have been in possession of the same, or the reversion or remainder thereof, or taken the rents and profits thereof, by the space of one whole year next before the said bargain, covenant, grant, or promise made upon pain," &c. [2 Hawk. Pleas of the Crown, by Leach, B. 1, ch. 86, § 4.] Mr. Russell (on Crimes, Vol. 1, B. 2, ch. 21, p. 266) says: "Maintenance seems to signify an unlawful taking in hand, or upholding of quarrels or sides to the disturbance or hindrance of common right. This may be, where a person assists another in his pretensions to lands by taking or holding the possession of them by force or subtilty, or where a person stirs up quarrels and suits in relation to matters wherein he is in no ways concerned; or it may be, where a person officiously intermeddles in a suit depending in a court of justice, and in no way belonging to him, by assisting either party with money, or otherwise, in the prosecution or defence of such suit. Where there is no contract to have a part of the thing in suit, the party so intermeddling is said to be guilty of maintenance. But if the party stipulates to have part of the thing in suit, his offence is called champerty." It would seem, that, where a party purchases the whole matter in controversy, and brings the § 1048 a. But the doctrine of the common law as to champerty and maintenance is to be understood with proper limitations and qualifications, and cannot be applied to a person having an interest or believing that he has an interest in the subject in dispute, and bona fide acting in the suit; for he may lawfully assist in the defence or maintenance of that suit.1 suit not to support the title of another, but to support his own title, the case would not fall within the predicament either of maintenance or champerty, as thus defined by Mr. Russell or by Mr. Justice Blackstone, although it may be within the scope of the offence described by Hawkins, or of the statute of 32 Henry VIII. ch. 9, respecting the buying or selling of pretended or disputed titles. Be this as it may, it seems difficult to perceive how the language can be applied to matters of trust in lands, actual or constructive, where the trust, although disputed, falls within the jurisdiction of a court of equity. The case of a bill, brought for a specific performance of a disputed contract respecting the purchase of lands, by an assignee of the seller or buyer, turns upon the ground of trust; and yet it has been uniformly held to be within the jurisdiction of courts of equity. Post, § 1049 to 1051. So the case of the assignment of a disputed debt, or chose in action, or covenant, has been held a good assignment in equity. See post, § 1053, 1051, 1057. The true distinction will, perhaps, be found to be, that the doctrine of maintenance and champerty, and buying pretended titles, applies only to cases where there is an adverse right claimed under an independent title, not in privity with that of the assignor or seller, and not under a disputed right, claimed in privity, or under a trust for the assignor or seller. It is not strictly maintenance for a stranger to advance money for or to agree to pay the costs of a suit not yet commenced; for the offence consists in such acts done after a suit is commenced. But courts of equity deem such acts as savoring of maintenance; and therefore will not enforce any contracts or rights growing out of them. Wood v. Downes, 18 Ves. 125. In Harrington v. Long (2 Mylne & K. 592), the Master of the Rolls defined maintenance somewhat differently from what it is in the text. He said: "Maintenance is, where there is an agreement by which one party gives to a stranger the benefit of a suit, upon condition that he prosecutes it. See also Prosser v. Edmonds, 1 Younge & Coll. 496 to 499; ante, § 1040 c; Baker v. Whiting, 3 Sumner, 475; post, § 1050; Hunter v. Daniel, 9 Jurist, 521, 527; the comments of Mr. Vice-Chancellor Wigram, on Harrington v. Long, 2 Mylne & Keen, 592; and Wood v. Downes, 18 Ves. 120. 1 In Findon v. Parker, 11 Mees. & Welsb. 675, 682, Lord Abinger said: "The law of maintenance, as I understand it, upon the modern constructions, is confined to cases where a man improperly, and for the purpose of stirring up litigation and strife, encourages others to bring actions or to make defences which they have no right to make. I do not like to give an opinion upon an abstract case, and, therefore, am not desirous to consider it; but if a man were to see a poor person in the street oppressed and abused, and without the means of obtaining redress, and furnished him with money or employed an attor ney to obtain redress for his wrongs, it would require a very strong argument to convince me that that man could be said to be stirring up litigation and strife, and to be guilty of the crime of maintenance; I am not prepared to say, that in modern times courts of justice ought to come to that conclusion. However, I give no opinion upon that point. In this case, I proceed upon the ground, that there was reasonable evidence of a common link of interest uniting the proprietors of the lands in question, at the time they made the agreement." See also Pechell v. Watson, 8 Mees. & Welsb. 691; Hunter v. Daniel, 4 Hare, 420; Flight v. Leman, 4 Adolph. & Ellis, New R. 883; Co. Litt. 368 b; Hunter v. Daniel, 9 Jurist, 526 § 1049. It was chiefly upon the ground of champerty and maintenance, that the courts of common law refused to recognize the assignment of debts, and other rights of action and securities; although (as we have seen) the same doctrine does not prevail in equity. But still, courts of equity are ever solicitous to enforce all the principles of law respecting champerty and maintenance; and they will not, in any case,' uphold an assignment, which involves any such offensive ingredients.2 Thus, for instance, courts of equity, equally with courts of law, will repudiate any agreement or assignment made between a creditor and a third person, to maintain a suit of the former, so that they may share the profits resulting from the success of the suit; for it will be a clear case of champerty. So, an assignment of a part of the subject of a pending prize suit, to a navy agent, in consideration of his undertaking to indemnify the assignor against the costs and charges of the suit, will be held void in equity; for it amounts to champerty, in being the unlawful maintenance of a suit, in consideration of a bargain. for part of a thing, or some profit out of it. So, a bill to enforce a title acquired by a conveyance of real estate, from a person out of possession, in consideration of money advanced, and to be advanced, on suits for the recovery thereof, will be dismissed, even although the parties are first cousins; for it amounts to maintenance, and is the buying of a pretended title. The only exceptions to the general rule are of certain peculiar relations recognized by the law; such as that of father and son; or of an heir apparent; of the husband of an heiress; or of master and servant; and the like. (for 1845), where Mr. Vice-Chancellor 1 See Hoyt r. Thompson, 3 Sandf. 411; Hopkins v. Hopkins, 4 Strobh. Eq. 207. 2 Strachan v. Brander, 1 Eden, 303, and note; id. 309; Skapholme v. Hart, Rep. temp. Finch, 477; Burke v. Green, 2 B. & Beatt. 517; Wood v. Downes, 18 Ves. 125, 126; Wood v. Griffith, 1 Swanst. 55, 56; Wallis v. Duke of Portland, 3 Ves. 455, 502; Stone v. Yea, Jac. 426; ante, § 294, 297; Arden v. Patterson, 5 Johns. Ch. 44, 48, 51. 3 Hartley v. Russell, 2 Sim. & Stu. 244; Satterlee v. Frazer, 2 Sandf. 141; Merrit v. Lambert, 10 Paige, 352; 2 Denio, 607; Lathrop v. Amherst Bank, 9 Met. 489; Elliott v. M'Clelland, 17 Ala. 206; Thomp son v. Warren, 8 B. Monroe, 488. See Riggs v. Shurley, 9 Humph. 71. In Hunter . Daniel, 9 Jurist, p. 526, 581, Sir James Wigram, V. C., said: “I am by no means certain that the opinion of Sir John Leach in that case (Harrington v. Long, 2 M. & K. 590) is perfectly consistent with what he decided in Hartley v. Russell, 2 Sim. & Stu. 244." 4 Stevens v. Bagwell, 15 Ves. 156. 5 Burke v. Green, 2 B. & Beatt 521, 522; Marquis of Cholmondeley v. Lord Clinton, 2 Jac. & Walk. 135, 136; Powell v. Knowler, 2 Atk. 224; Bayly v. Tyrell, 2 B. & Beatt. 358; Thalhimer v. Brincker. hoff, 3 Cowen, 623. 6 Ibid.; Moore v. Usher, 7 Sim. 384. 74 Black. Comm. 135. [See Eiborough v. Ayres, L. R. 10 Eq. 367.] |