that he could get was to take the property in Sharon for what he let Smith and Hofius have."

Plaintiffs submitted inter alia the following point: "If the jury believe that J. D. Smith, about the time of the deed to Hotius, left at the barn of the defendant a large quantity of hides or leather of the value of $1,200, in the absence of the defendant, at the same time leaving a bill of sale for the same to the defendant, and that afterward the defendant took a deed from Hofius for said land for a consideration less than half that recited in the deed from Smith to Hofius, and which consideration from the defendant was only the discharge of judg ments against Smith and liens on the land at the time of Smith's deed to Holmes; these are circumstances for the jury, from which they may infer that the defendant was cognizant of the nature of the transaction between Smith and Hofius."

Answer. "This point touches facts rather than law. The allegations of facts referred to in this point are submitted to you in connection with all the evidence bearing upon the question of notice to or knowledge in De Wolf of the fraud alleged to have been perpetrated in the original transaction between Smith and Hofius."

The defendant asked the court to charge that the evidence ought not to reasonably satisfy the jury that Hofius, at the time of his purchase, had notice of any fraudulent design on the part of Smith; or that DeWolf, at the time of his purchase, had notice that the conveyance by Smith to Hofius was fraudulent, and, therefore, that the verdict should be for defendant. These points were refused by the court.

The defendant further asked the court to charge: "There being no evidence that the declarations of Hofius were made in the presence of DeWolf, or that they were communicated to him before his purchase from Hofius, such declarations are no evidence of fraud and cannot affect De Wolf's title, and the jury are requested to be instructed to disregard them."

Answer. "The declarations of Hofius, made prior to the time he conveyed, admitted in evidence, are competent for the purpose of showing the fraudulent character of the conveyance to him or knowledge in him of the fraudulent character of the conveyance. Therefore, this point is denied.”

Verdict and judgment for plaintiffs. Whereupon the defendant took this writ.

E. P. Gillespie and Miller & Gordon, for plaintiff in error. B. Magoffin and J. G. Elliott, for defendants in error.

PER CURIAM. We have given the evidence in this case a careful examination and consideration. The main contention is that of fraud in the transaction. This opened a wide door to the admission of evidence. There certainly was evidence tending to show the conveyance by Smith to Hofius was made and accepted with intent to defraud McNabb; and there is also sufficient evidence to submit to the jury that DeWolf was not a bona fide purchaser for value without notice. The evidence was fairly submitted, and we see no sufficient reason for disturbing the judgment.

Judgment affirmed.

MCCLEARY'S APPEAL.

November 2, 1885.

GUARDIAN AND WARD- REVOCATION OF APPOINTMENT BEFORE APPROVAL OF BOND.

A. was appointed guardian of several minor children by decree of orphans' court in pursuance of petitions presented by the minors' "uncles and next friends." Before A.'s bond had been approved, or he had been qualified to serve, B., the father of said minors, presented his petition in the open court, setting out the death of the mother of said minors; that they lived with him; that the appointment of A. as guardian had been made without notice to him (B.); that A. 's relations with him were unfriendly, and the appointment was not a suitable one, but had been made to disturb the peace and harmony of his family. The petitioner therefore, prayed that A. be dismissed, and some other person, satisfactory to B., be appointed. In pursuance of this petition the court entered a decree revoking A.'s appointment, and appointing C., whereupon A. appealed. Held, that there was no error. The appointment of A. was without notice to B., and, upon the court's becoming satisfied that said appointment was inadvisable, it had the right, before A. had qualified to serve, to revoke its former order, and put another person in his place.

Besides A. did not occupy a position which gave him a right to complain

Appeal of Dr. W. L. McCleary from a decree of the orphans' court of Washington county revoking his appointment as guardian of certain

minors.

Martha Danley died in June, 1883, leaving five minor children, a husband, John S. Danley, and a small personal estate. In August, 1884, petitions for the appointment of a guardian for the children were presented to the orphans' court by J. C., L. C. and M. L. McCleary, their uncles and next friends." Upon each of these petitions the court indorsed the following decree: "And now, August 18, 1884, the within petition being read in open court, the court, after mature deliberation, appoints Dr. W. L. McCleary guardian of the person and estate of said minors, and directs him to give bond in the sum of $2,000, with good surety for the faithful performance of his trust."

On August 20, 1884, the petition of John S. Danley was presented to court, stating that he was the father of said children; that their mother was dead, and they lived with him; that the appointment of guardian was made without notice to him, and, in his opinion, Dr. W. L. McCleary was not a suitable person for guardian, his relations with the petitioner being unfriendly, and his appointment calculated to disturb the harmony of the family of the petitioner, and produce discord therein; further, that he believed the appointment was devised in secret so as to vex and annoy him, and to produce discord and alienation in his family. The petitioner, therefore, prayed that the appointment of Dr. W. L. McCleary be set aside, and some other person, satisfactory to the petitioner, be appointed.

This petition was presented before Dr. W. L. McCleary's bond as guardian had been approved, and before he was qualified to act. Upon its presentation, in open court, the following decree was entered: "And now, August 20, 1884, the decree made on the 18th inst. appointing Dr. W. L. McCleary guardian of the persons and estates of the withinnamed minors is now revoked, and N. Pees, Esq., is now appointed

guardian of the estates of said minors, and directed to give bond in the sum of $2,000, in each case."

N. Pees having declined to accept, the court, on August 26th following, entered another decree appointing H. P. Danley; thereupon Dr. W. L. McCleary took this appeal, assigning for error the decree of the court revoking his appointment as guardian without citation to him, and appointing H. P. Danley in his place.

J. F. McFarland, for appellant. A. W. & M. C. Acheson, for appellee.

PER CURIAM. This is not the case of the removal of a guardian after he has given a bond and entered upon the discharge of his duties. It is merely the revocation of an order for the appointment of the appellant two days after it was made, and before he had qualified himself to act as guardian. The order for his appointment was improvidently made. It was without any notice to the father of the minors. At the same term on satisfactory evidence that the court had acted mistakenly, it corrected the error which it had committed. The appellant does not occupy such position as to give any right to complain of the revocation of the order.

Decree affirmed and appeal dismissed at the costs of the appellant.

SUPREME JUDICIAL COURT OF MAINE.

WHITE V. KILGORE.

December 9, 1885.

ASSIGNMENT EQUITABLE OF CHOSE IN ACTION-COLLATERAL SECURITY-TRustee PROCESS.

F. owed K. on account, and K. owed H. on account and desired further credit of H. The three agreed that what F. owed K., should be paid to H., then H. delivered goods to K. on further account. Before F. paid H. he was trusteed on K.'s account. The amount of K.'s indebtedness to H. at that time was less than the sum trusteed. Held, that there was an oral assignment as collateral security to H. of K.'s debt against F., the consideration of which was the mutuality of the agreement and the new goods, and the transaction was also a constructive delivery sufficient to satisfy the policy of the law. Held further, that H. was entitled to so much of the funds in the hands of F. as would pay the amount then due to him from K., and that F. was chargeable as trustee for the balance of his indebtedness to K.

Danforth & Gould and Walton & Walton, for plaintiffs. C. A. Harrington, for claimant.

PETERS, Ch. J. It is a sufficient statement of the facts of the case to say, that the trustee (Flanders) owed the defendant (Kilgore) on account, and the defendant owed the claimants (Hussey & Conant) on account; that there was a verbal agreement between the parties that Flanders should pay to Hussey & Conant what he owed Kilgore toward the satisfaction of their debt against Kilgore, that Flanders promised to send a check to Hussey & Conant, but was trusteed in this suit before the check was sent.

Which party has the better claim upon the fund in the trustee's hands? The claimants contend that the defendant assigned his account against the trustee to them; that the transaction amounted to an equitable assignment, made orally. The plaintiff contends otherwise.

The ground taken by the plaintiff is, that there was not an assignment for two reasons. First, that there was no consideration. Second, that there was no delivery of the debt or thing assigned.

The doctrine of equitable assignments of choses in action was at an early date adopted by the law; and it has been an expanding, growing doctrine. The general rule of courts has been, that to establish a mere oral or unwritten assignment of a chose in action, both a consideration and a delivery must be proved, not only as against creditors and subsequent purchasers, but as between the parties themselves. If it be asked why there should be more particularity of the requirement of delivery in equitable than in legal sales, the answer is that from the nature of things, there is nothing else to indicate that it is an executed rather than an executory contract, nothing to clearly mark the intention of the parties. There would be too much uncertainty and misunderstanding in such equitable contracts unless the rule respecting consideration and delivery be adhered to. Equity in its liberality invented the doctrine, and at the same time in its caution provided certain requirements to be observed in its application. While equity dispenses with some forms it insists upon others.

The element of valuable consideration has been quite rigidly adhered to. Our own cases have uniformly required it. "The "The presence of a valuable consideration becomes the essential and necessary element of an equitable assignment." Tallman v. Hoey, 89 N. Y. 537. A delivery is just as essential an element as the presence of a valuable consideration. It is said by REDFIELD, J., in Whittle v. Skinner, 23 Vt. 531: "We know of no case where an agreement to assign a chose in action, without even a symbolical delivery, has been held valid, between the parties even." While, however, delivery or its equivalent is necessary in those cases of "imperfect transfer," rather insignificant acts have been in many instances allowed to answer the requirement. Various circumstances and situations of parties have been construed as tantamount to delivery, and especially is this so in respect to verbal assignments of debts which are not evidenced by any writing, and, therefore, not susceptible of manual or visible delivery.

In Robbins v. Bacon, 3 Me. 346, MELLEN, Ch. J., said: "A bond or note may be assigned upon valuable consideration by mere delivery to the assignee for his use. In those cases, the bond or note is evidence of the debt due. When the debt is due on book merely, as a man cannot deliver over to an assignee of such debt his general book of accounts, a copy of the account taken from the book, with an order on the debtor, may well be considered as a delivery." In subsequent cases not as much was required. In Porter v. Bullard, 26 Me. 448, it was a sufficient delivery that a copy of an account was handed over, and it was there held that a receipt from the assignee to the assignor, admitting a transfer to himself, was sufficient evidence of a delivery. In Garnsey v. Gardiner, 49 Me. 167, the court held that

the assignment of a debt might be made by parol, and might be inferred from the conduct and acts of the parties. In Sprague v. Frankfort, 60 Me. 253, it appeared that a person volunteered for the war as a substitute for an enrolled man, for the sum of $600, verbally agreeing that any future bounties payable to him should belong to the person whose place he took; and this was held to be a parol assignment. In this case there was nothing to deliver - and might never be. The assignment was a part of the original agreement and a part of the consideration therefor. The parties acted under it. Simpson v. Bibber, 59 Me. 196, is a still more radical case perhaps; but in that case there was more than merely spoken words to constitute an assignment there were circumstances. The assignee had an equitable lien for his repairs.

There should undoubtedly be something more than words to constitute sale and delivery; there must be some act. "Any order, writing or act which makes an appropriation of a fund" amounts to an equitable assignment of that fund. Story Eq. Jur., § 1047. A constructive delivery may be evidenced by conduct indicating that the assignor relinquishes, and the assignee assumes, control of the chosen action. Brewer v. Franklin Mills, 42 N. H. 292; Williams v. Ingersoll, 89 N. Y. 508. In accordance with this view of the law, we think that the claimants are entitled to a portion of the fund. There was a consideration for the assignment. The claimants let a portion of their goods go upon the strength of the assignment. The agreement to buy the debt was a consideration for its sale. The acts of the three parties, one selling, another buying, and the third agreeing to account to the buyer - done contemporaneously amounted to at least a constructive delivery. It was enough to "satisfy the reason and policy of the law."

The assignees cannot hold all of the funds. Only $24.44 was due them when the writ was served, while the debt assigned was $60.63. The transaction has evidently resolved itself into a matter of security. Says STORY, J., in Flagg v. Mann, 2 Sumner, 486: "If a transaction resolve itself into a security, whatever may be its form, and whatever name the parties may choose to give it, it is in equity, a mortgage." The fund should be divided as before indicated. Any other view would cast a fraudulent shadow over the original assignment. Such an assignment could as properly be for collateral security as to be absolute. Taft v. Bowker, 132 Mass. 277.

Exceptions sustained. Claimants to have $24.44 only of the fund. WALTON, DANFORTH, LIBBEY, EMERY and FOSTER, JJ., concurred.