signment it is become A's property. An executory interest is CH. 14. assignable in equity. Art. 3. 6. Bills of lading of goods in transitu are sent to a consignee, and he assigns them to a third person for a valuable 5 T. R. 683. consideration, as against such assignee the right of the con- 1 H. Bl. signor is divested. The consignee is entrusted with these 357, 504. bills, and the assignee of them is an innocent purchaser for a valuable consideration. - § 7. A chose in action has ever been assignable in equity; Chitty 7,8. and the equitable interest of an assignee has long been recognised in courts of law, and has been deemed a good consideration of a promise. The right to the thing passes, but the remedy, or form of it does not, but must be pursued to recover the transferred right. How freight, before due, may be assigned, see Ch. 33, a. 2, s. 21, Freight. ART. 3. American cases. § 1. In this case the Supreme 1 Mass. R. Judicial Court of Massachusetts decided, that the assignee 117, Perkins of a chose in action has such an interest in it by the assignment, 1 Dallas 23. as the law will protect, if made for an adequate consideration. v. Parker. M'Callum v. 2. And the Supreme Court of Pennsylvania decided that Dallas 139, the assignee, bona fide, has such an interest in the debt assigned, Coxe.that the nominal plt., the assignor, in whose name the action 1 Bin. 423. is brought pro forma, cannot discontinue it but by the consent of the assignee. See also Ch. 192, a. 5, s. 7; Ch. 112, a. 5, s. 18. § 3. There are two cases, in which the consignor of goods may stop them in transitu as to the consignee; 1st, when he is insolvent; 2, has paid no consideration for them; but neither of these circumstances can affect the innocent assignee of the goods, with the bills of lading, for a valuable consideration, when the consignee and assignor is entrusted with the said bills of lading, and delivers them over to the assignee. tees. 4. W. C. Martin was indebted to James Scott about Mass. S. J. $5000, and shipped goods in the ship A, and got them insured, 1801, Boston,. Court, Feb. and to secure Scott, assigned to him the bills of lading and Wakefield v. policy of insurance by a blank endorsement. A total loss hap- Martin & truspened. Wells, one of the underwriters, was attached as trustee of Martin, by the plt.; and Wells, at the time of the attachment, had no knowledge of the assignment to Scott. The court discharged the trustees, and held, that the assignment, though without the knowledge or assent of the underwriters, vested an equitable right in the assignee, and had Wells paid the loss to Martin after the assignment, no doubt it would have been money had and received to Scott's use, which he could have recovered in this action of assumpsit. § 5. In this case it was decided, that the assignment of chose in action is not defeated by the assignor's death, but the a 9 Mass. R. 337, Dawes, judge, & al. r. Boylston, CH. 14. 2 Bos. & P. 226.-Many cases, Toller 387. 5 Johns. R 335, 345, Wilkes & al. v. Ferris assignee may sue and recover in the name of the executor or administrator of the assignor; and if the assignee afterwards become the assignor's executor or administrator, he may recover the same as such executor or administrator to his own use, and need not account for it. But if the assignees of a bankrupt, deceased, assign property of his to his administrator cum testamento annexo, for his own use and benefit, the administrator must account for it to the creditors of the deceased; or to those entitled under his will. In this case, Thomas Boylston, of London, in 1793 &c., became a bankrupt, and assigned all his estate, effects, and credits to Lee, Erving, and Latham, assignees; Moses Gill owed Boylston about £100,000, and he died December 30, 1798; deft. took administration on his estate in Massachusetts to recover this debt, and August 24, 1799, said assignees assigned it to him to his own use, for $3,333 consideration, and he sued and recovered it accordingly, of Gill's executor, and claimed this debt as his own. The judge of probate sued the probate bond for the benefit of the inhabitants of Boston, residuary legatees in Thomas Boylston's will. The testator's creditors were paid as far as concerned the assignees, or effects in their hands. Subsequently, but August 24, 1799, it was not known there would be a large surplus of his estate, since found to exist. Judgment, as above, for the plt., holding the deft. Ward N. Boylston, accountable for said debt, on the ground, that an executor or administrator being such, cannot by law be a purchaser or assignee, to his own use, of a chose in action, or estate of the deceased; and to allow such purchase to be valid, would be a devastavit. Further, though the deft., as such administrator, might collect and pay debts here, yet all the personal estate of the testator must be collected and distributed in one place, in this case, in England, where he had his domicil at his death. The place of one's domicil is, primâ facie, where he resides, but that may be rebutted or supported by circumstances; his domicil must be stationary, not an occasional residence, in order that the municipal institutions may attach on his property. 1 Wooddes. 385. If an alien, resident abroad, die intestate, all his property is distributed by the law of the country where he resides. Toller's L. of Ex. 387; Amb. 27. And the administrator here was only ancillary to that in England. § 6. The debtor assigned, in trust for several creditors, all his property, goods, chattels, debts, &c., particularly specified in a schedule annexed to the deed of assignment. Held, this 3 Day's Ca. 340, 361-4 was not a general assignment of all his estate, but only of the Day's Ca.146. articles specified in the schedule; held, 2. the residuary interest resulting and remaining to the debtor, after the purposes of his assignment were answered, was not an interest that could be attached or taken in execution; and if the assignment be fair, it is not void on account of such residuary interest; 3. and a delivery of the key of the warehouse &c. is a delivery of the goods. CH. 14. Art. 3. Wardel v. § 7. The court will take notice of the assignment of a chose 3 Johns R. 425, Littlein action, and protect the rights of the assignee. 12 Johns. field v. Story. cases 121. And notice from the assignee of the debt to the ob- 2 Johns. ligor of the breach of the condition, is sufficient. Van Vechten Cases 121, v. Graves, 4 Johns. R. 403, 407. And where the plt. recover- Eden, & 529 ed judgment, and then assigned it to A, and afterwards entered satisfaction on the record, the court, on motion, vacated this record. 3 Johns. R. 1 --Assignee of a covenant 8. Two partners being embarrassed, drew an order on their agent, and ordered him to pay to the plt. the monies the agent should receive from certain persons in Europe, as soon as he should receive them, and from whom he had power to receive them, being certain sums due on policies of insurance. This order the agent accepted, the day it was drawn, "to pay cannot sue in the monies as soon as they came into his hands." The as- name.-1 Pensignees of the partners sued, and held, that the order and ac- ning 142. ceptance amounted to an assignment, and fixed the fund in the deft. or for his benefit, so that it could not be recalled. his own 227, Wad does not pay 9. Two partners in trade dissolved their partnership, one 2Johns. Ca. took the property and engaged to pay the debts, among which dington & al.. was a judgment against them at the suit of C. The partner v. Verdenthat took the property &c. became insolvent. C threatened burg. Payee assigns to sue out execution against the other partner, and hence he a note, and paid the judgment, and C agreed he should have the benefit the maker of it to recover the amount out of the property of his said in- it, payee may solvent partner, in C's name; sued accordingly, and execu- sue him on tion against his lands, bound by the judgment. The insolvent redelivery only, 1 Penning assigned all his property to D and others, for the benefit of his 35, Boylan v. creditors. Held, the solvent partner was merely as a surety to Vighte. the insolvent one, and entitled to an equitable lien on his pro- 172, Dugan perty; and that D &c. took it subject to this lien, and so not & al. v. Ů. entitled to any relief by auditâ querela. If a bill be endorsed States. to A B, treasurer of the United States, and delivered to him as such treasurer, and bought with their money, they may sue on this assignment. 3 Wheat. R. 10. The obligee assigned his bond to A, who sued it in 1 Johns. Ca. 441, Andrews the obligee's name. The deft., the obligor, pleaded a release v. Beecker.from the obligee, A replied the prior assignment, and held the release was a nullity. A prize ordered to be sold, a share in it is not assignable. 290. § 11. All these cases in Massachusetts and New York have 13 Mass. R. been decided on English authorities, and the Federal courts decide on the same principles; but in Pennsylvania there has Cн. 14. 1 Dallas 144. 1 Mass. R. many years been a statute for the assignment of a bond, and to enable the assignee to sue in his own name; but he takes it at his peril, and stands merely in the place of the obligee. 1 Dallas 23, 139. § 12. A bond payable to A, with a memorandum subjoined, it was for B's use, was by him assigned to C. Held, this was no legal assignment, within the statute. Hence, C could not sue in his own name, and if C subsequently assign the same bond, it is only an assignment of his equitable interest on the principles of the common law. 13. The plts., citizens of Philadelphia, brought assumpsit 25, 26, Orr & as assignees of Bernu & al., also of that city, against the deft., al. v. Amory. -10 Mass. R. surviving partner &c. Bernu & al. January 14. 1811, by deed 482.-2 Mass. assigned all their lands, goods, &c. to the plts. in trust, &c. and so this debt, &c. Held, the plts. could not maintain the action on this voluntary assignment of the contract; for a chose in action is not assignable, at common law, nor by any statute in Massachusetts. R. 281. 11 Mass. R. 488, Wood r. Partridge.15 Mass. R. 48J. 11 Mass. R. 153, Browne v. Maine Bank. 4 Johns. R. 7 Cranch 308. 13 Mass. R. 14. An assignee of a chose in action to avail himself of the assignment, if the debtor be trusteed, must notify him of the assignment, and shew him of the evidence of it, to enable him to disclose all the facts to the court. 2. A lessee, who has covenanted to pay rent quarterly, can be held as trustee of the lessor for so many quarters' rent only, as are due by the covenant at the time he was summoned. § 15. Entry sur disseisin. A attached lands, and got judgment, and assigned to the plt., and execution extended, and A released to the plt. Held, this conveyed a title in the land to the plt. against a creditor of A, who attached it after the extent, and before the release, for the last attachment was after the judgment and execution were assigned, and notice thereof given to defts. ; plt's. title is from the original attachment. 16. Where the assignee of a bond may give notice, &c. § 17. The general assignee of an insolvent's effects cannot sue in the Federal courts, if his assignor could not; nor assignee of a part of a patent, for a violation of it. 6 Cranch 324; 4 Cranch 73. 18. Where an assignee of a share of property, as security for a debt, is bound beyond the value of such share. 19. Assignment of a note by delivery only, is valid. As 304, Jones r. where assumpsit was brought on a promissory note, which the Witter; promisee assigned, for a valuable consideration to A, by delivery, and not by any endorsement or writing; of this the promissor was notified. Held, A could recover the note against him in an action in the name of the promisee, notwithstanding the maker, after so notified, made payment to the promisee. This note being to order, and so negotiable, made no differ ence, as it was not negotiated. The deft. urged, that this naked delivery was a mere bailment that conveyed no property; but the court held, here was such an assignment in equity, as a 'court of law would support, in all respects, except allowing an action in the name of the assignee; and the assignment may be proved by witnesses. This, it seems, was the first decision direct to the point of this assignment. CH. 14. Art. 3. v. Somes, jr. 20. The assignee of a bond cannot sue it in his own name 14 Mass. R. 107, Skinner against the obligor, though it be to the obligee and his assigns. Decided on demurrer to the declaration. See Ch. 168, a. 5, s. 20; Ch. 20, a. 20, s. 46; Ch. 9, a. 1, s. 8; Court observed, this was the first attempt of the kind, 14 Mass R. § 21. Rights of assignees of choses in action. Assumpsit 291, Jenkins on a written memorandum, signed by the deft. June 21, 1814, v. Brewster, made between the plt. and B, son of the deft., as to building &c. a dye house on B's land; plt. to use it two years &c. rent free, and at the end of two years B to pay the plt. the costs. He built &c. and January 30, 1816, deft. became the owner of it, and then adjusted the amount due to the plt. $842 88, on said agreement, and then, by writing signed, promised to pay it to the plt. June 21, 1816. Plt. sued for said £842 88. February 2, 1816, he assigned deft's. memorandum, by deed, to two of his creditors to secure their debts; of this, deft. had notice February 3, 1816, and then said, nothing would be due to the plt. on a final settlement. Assignees, in fact, sued the action, and plt. had judgment for $480 11, the sum he owed them. Held, the deft. could not off-set any matter arising after the said assignment and notice thereof; as after that, he could not, by any act of his, deprive the assignees of their rights under the assignment. A assigns a bond to B, and he gets judgment in A's name, and B gives the execution to an officer, and informs him of his equitable interest, and the officer suffers an escape; for it, B may recover against him in A's name, and his release will not protect the officer. 15 Johns. R. 405. § 22. A covenants to assign a patent right in as full a man- 14 Mass. R ner as B had assigned it to A; a covenant of warranty in such 389, Morril v Worthington. assignment is not necessarily implied. The assignee of such right must get the deed of transfer recorded in the proper office. 23. Both avowant and person making conveyance, may 3 Maule & S, take an assignment of a replevin bond and sue jointly on it. 24. 2d, Assignees of a bond, how entitled to interest, &c. Tazewell's exr. v. Barrett & Co. 4 Hen. & M. 259, 266. This was an action of debt brought by Barrett & Co., assignees of Walker & Co., assignees of Theo. Bland, obligee, against Tazewell's exr. on his bond; penalty £1800, dated 183. |