the debt directly to the assignee. The common law, however, continued for a considerable period to deny any validity whatever to an attempted assignment, having by this time developed the idea that the power of attorney, by which it was sought to evade the common law prohibition against assignment, unduly stimulated litigation and so was prohibited by the statutes against maintenance. It thus appears that there was a period in the history of English law during which the assignee acquired by the assignment no legal rights of any kind, but did acquire equitable rights against the one liable on the chose in action. The aggregate of common law rights and other jural relations composing ownership of the chose in action remained vested completely in the assignor, just as they do in the case of a typical trust; but the chancellor gave to the assignment the effect of creating in equity a new aggregate of rights and other jural relations. This aggregate of equitable jural relations included, in addition to the rights against the debtor, also a right that the assignor should refrain from exercising the privileges and powers which the common law still ascribed to him. A complete analysis would of course show that the assignee also possessed certain equitable privileges, powers, and immunities. This state of the law explains the origin of the familiar statement, true at the period of which we speak, but long since outgrown, that "a chose in action is assignable in equity but not at law.” The common law lawyers and judges, no doubt stimulated by this development in chancery, began to try to find some method of evading their rule against assignability. Down to a certain point, Mr. Ames has accurately described what happened on the common law side. By gradually changing their views concerning the illegality of assignments because of maintenance, the common law lawyers were able, through the device of the "power of attorney" already referred to, to enable the assignee to obtain relief in common law proceedings by suing in the name of the assignor. At first an express power of attorney was required, but later one was implied.8 7 AMES, LECTURES ON LEGAL HISTORY, p. 213. 8 AMES, loc. cit., p. 214, note 1. Apparently Dean Ames thought of the power of attorney as "implied in fact," for he speaks of it as "implied from circumstantial evidence." But was any evidence beyond the "assignment" itself necessary in the fully developed doctrine? It would seem that the "power of attorney" was "implied in law," i. e., was attached by the law to each assignment as a legal consequence of the same, irrespective of any implied intention in fact. Originally, of course, the theory was that the assignee sued as the agent or attorney of the assignor, although entitled to appropriate the proceeds to his own use; and it seems to be the contention of Mr. Ames, or at least of some who follow his theory, that this has ever since remained the law. As has already been indicated, it is the belief of the present writer that a consideration of the cases, especially those in this country, will show that any such view is not warranted by the cases. Perhaps before going farther it may be well to note what is really involved in the theory that the assignee is really in some sense the agent or attorney of the assignor in collecting the chose or in suing upon it. If the assignee is an agent and the assignor is still the owner of the chose, it would seem to follow that the assignor must retain the common law powers mentioned above. He must have, for example, the power to give a valid release, accept payment or accord and satisfaction, control the suit if brought in the common law court in his name, enter satisfaction of the judgment, control the issue of execution on it, etc., etc. Doubtless, as soon as the legality of the "power of attorney" is recognized, he is under a duty not to do these things, i.e., he has lost some of his common law "privileges," so that he will incur a legal liability in damages for breaking his duty to the assignee not to do these acts except for the benefit of the assignee.10 Absence of privilege, however, does 9 AMES, op. cit., p. 214, note 3; Kenneson, loc. cit. In the note referred to, Dean Ames contends that the bailor's interest in the chattel bailed is a chose in action and "upon principle and by the old precedents no more transferable than that of a creditor." He admits that the old precedents are no longer the law, so far as the decisions of the cases go, and it is difficult to see what the "principle" which forbids the transfer is, except the supposed "principle of universal law" previously referred to. It seems also that even if we admit the validity of such a principle, the assertion as to the bailor's interest is incorrect. The bailor has a true right in rem against "all the world" that they shall refrain from dealing with the chattel without authority, and may sue third persons unlawfully dealing with the chattel while in the bailee's possession, bringing trover or case, according to the circumstances. Cf. my discussion of similar questions in 15 COL. L. REV. 46; also the recent articles in the HARV. L. REV. for February and March, 1916, by Professor Percy Bordwell of Iowa. The present writer is convinced that some of Dean Ames's students misinterpret Mr. Ames's real meaning when he says that the assignee held only a "power of attorney." He says (1 CASES ON TRUSTS, 2 ed., p. 61) that it was a power "for the attorney's own benefit," which, of course, is inconsistent with its being merely an agency, as, for example, Mr. Kenneson seems to assume. 10 It should be emphasized that the assignor is no longer complete owner of the chose in action if he has ceased to have all the privileges of an owner, i. e., if, not as a not mean absence of legal power, and so long as the theory of agency is followed, the extent of the assignee's rights in a court of law would be measured by an action for damages, and he would be powerless to prevent the breach of duty on the part of the assignor. If he wished preventive relief, it would be necessary for him to resort to equity, with its power to issue injunctions and its theory that the assignee ought to be regarded as the owner and protected accordingly. For a time after the legality of the "power of attorney" came to be recognized it is undoubtedly true that the assignee had no greater rights in a court of law than have just been described; but the common law could not and did not remain in this condition. Traces of a farther evolution begin to appear at a relatively early date. In a case in the King's Bench in 1676 (Carrington v. Harway, 1 Keble 803), it appeared that the plaintiff, who was resident in Spain, had executed a letter of attorney to acknowledge satisfaction of a judgment which he held against the defendant. Counsel prayed that satisfaction might be acknowledged by the attorney's name in the letter, but the court refused, the plaintiff "having before assigned it [the judgment] over to one Cocke, which, being in satisfaction of just debt, is not revocable." The effect of a decision of this kind, of course, is to deprive the assignor of one of his common law powers, for clearly the real owner of a judgment could do what the plaintiff had attempted. Again in Lilly's Practical Register" we find the statement that the death of the assignor does not revoke the socalled power of attorney, but that the assignee may sue in the name of the assignor's administrator even without the latter's consent. Clearly the old theory is giving way, so far as results are concerned, although the courts still say that the assignment "does not vest an interest" in the assignee. In 1799, in the case of Legh v. Legh,12 the Court of Common Pleas was confronted with this situation: the assignor of a bond, after the assignee had begun suit in the name of the assignor, accepted payment from the debtor who had notice of the assignment, and also executed a release, which release was mere matter of contract, but because of an interest in the chose which is beginning to be ascribed to the assignee, he is regarded as under a duty to the assignee to refrain from exercising his common law powers. He no more has complete ownership than has the owner of the servient tenement in the case of an easement. 11 LILLY'S PRACTICAL REGISTER, 2 ed. (1735), p. 124. pleaded as a defense by the debtor when sued by the assignee in the name of the assignor. On the theory that the assignor at law still owned the bond, this plea stated a complete defense to the action and the assignee's only remedy would be an action for damages against the assignor or by bill in equity for cancellation of the release. However, the counsel for the real plaintiff, the assignee, obtained a rule nisi for setting aside the plea and ordering the release to be canceled. The following extracts from the original report are worthy of quotation: "Eyre, Ch. J. The conduct of this Defendant has been against good faith, and the only question is, whether the Plaintiff must not seek relief in a Court of Equity? The Defendant ought either to have paid the person to whom the bond was assigned, or have waited till an action was commenced against him, and then have applied to the Court. Most clearly it was in breach of good faith to pay the money to the assignor of the bond and take a release, and I rather think the Court ought not to allow the Defendant to avail himself of this plea, since a Court of Equity would order the Defendant to pay the Plaintiff the amount of his lien on the bond, and probably all the costs of the application." "Buller, J. There are many cases in which the Court has set aside a release given to prejudice the real Plaintiff. All these cases depend on circumstances. If the release be fraudulent, the Court will attend to the application. "The Court recommended the parties to go before the prothonotary, in order to ascertain what sum was really due to the Plaintiff on the bond. "Shepherd on this day stated that the Defendant objected to going before the prothonotary, upon which the Court said, that the rule must be made absolute. He then applied for leave to plead payment of the bond, and contended that as this was not an application under the statute to plead several pleas, the Court had no discretion. "Eyre, Ch. J. The Court has in many cases refused to allow a party to take his legal advantage, where it has appeared to be against good faith. Thus we prevent a man from signing judgment who has a right by law to do so, if it would be in breach of his own agreement. In order to defeat the real Plaintiff, this Defendant has colluded with the nominal Plaintiff to obtain a release; and I think therefore the plea of release may be set aside consistently with the general rules of the Court (Vide Donnolly v. Dunn, 2 B. & P. 45). And if so, the Defendant cannot be permitted to plead payment of the bond, as that would amount to the same thing. "Buller, J. The Court proceeds on the ground, that the Defendant has in effect agreed not to plead payment against the nominal obligee. "Upon this the Defendant consented to go before the prothonotary." 13 We have now reached the time when America separated from the mother country and we must therefore transfer our attention from English to American cases, for in this, as in so many other branches of our law, the so-called "common law" is received not as a completed system but as a growing organism whose further development under new and different surroundings is not necessarily the same as in the old home. The earliest American case worthy of notice which the present writer has found is one decided in 1772.14 In that case (Bildad Fowler v. John Harmon, reported in the opinion in another case) the Superior Court of New Haven County, Connecticut, had the issue placed squarely before it. The plaintiff, who had brought an action of trover, proved that he was assignee of a note payable in grain, the place of payment being the house of the promisor; that the promisor tendered the grain there; that it remained there for some time, as no one was there to receive it when tendered; that the defendant, a constable, under a judgment and execution against the assignor, attached the grain as the property of the assignor and took it away. Verdict and judgment were for the plaintiff, "for by the assignment of the note, the property of the grain upon the tender, vested in the assignee." Clearly here is no theory of agency, for, be it noted, the assignee had never dealt with the grain in any way. On the theory pursued by the writer in the Yale Law Journal previously quoted, the grain when tendered first becomes the property of the assignor, and passes to the assignee only when he appropriates it under an authority given him by the assignor to do so. On the agency theory the title to the grain vested in the assignor, and as the assignee never appropriated the grain or had anything to do with it, the plaintiff's trover action would fail. As we have seen, the court held just the contrary, viz., that the property vested directly in the assignee. In the same state, in a case in 1794, where the debtor had taken a release after notice of the assignment, we find the Supreme Court 13 Cf. similar action in personam by law courts in Payne v. Rogers, 1 Doug. 407 (1780); Doe dem. Lock v. Franklin, 7 Taunt. 9 (1816); Hickey v. Burt, 7 Taunt. 48 (1816); Mountstephen v. Brooke, 1 Chitty 390 (1819). 14 The case is reported in the case of Redfield v. Hillhouse, 1 Root (Conn.) 63 (1774). |