But equity recognizes just limits to this doctrine, by its refusal to enforce such assignments as are against public policy. Assignments of future pay by officers of the government, whether in the civil, military, or naval service, have been discountenanced on this ground; although as to back pay, prize-money, and arrears of pension, it has been frequently decided otherwise.1 Legislation sometimes interposes to protect soldiers and others against assignments of this nature. And the assignment of a government claim is in general void under an act of Congress. So, too, on principles of public policy, equity will not uphold assignments which involve champerty or maintenance, nor where, in general, litigation would be thereby encouraged on a mere speculation. But, in this matter of money rights, equity deals more liberally than the law; and while the assignment of a mere naked right to litigate,—such as the right to set aside a conveyance for fraud, which is incapable of giving any benefit except through the medium of a suit, would not be enforced by courts of equity, because against public policy; yet they permit a person to take an assignment of the whole interest of another in a contract, or security, or property which is in litigation, provided he does not make any advance beyond the mere support of the interest which he has so acquired. And, not to follow too far the subtile and rather finely drawn distinctions which are made in this respect of transactions against public policy, we may lay it down as well established in chancery, that a legatee may assign his legacy; also that a creditor may assign his interest in a debt, although he may have already commenced a suit to recover it.3 in his place to complete the service. Sloan v. Williams, 138 Ill. 43. Local statutes now regulate to a considerable extent the subject of assignments of wages, and confirm the right upon pursuance of prescribed formalities. See 78 Wis. 198; 47 Minn. 364. 1 See Story Eq. Jur. §§ 769, 1040, and cases cited; Heald v. Hay, 3 Gif. 467; Smith Man. Equity, 238-240. Cf. Johnstone v. Cox, 19 Ch. D. 17. 2 See Act Feb. 26, 1853, § 1. But cf. 48 Fed. 43. And see, as to assigning a public contract, Littlefield v. Pinkham, 72 Me. 369; 43 Kan. 294 ; local statutes. 8 See Story Eq. Jur. §§ 1049-1054, and cases cited; Tyson v. Jackson, 30 Beav. 384; Smith Man. § 75. Assignment; The Subject continued; Modern Fusion of Equity and Common-Law Doctrines. Modifications, like these, of the rigor of the common law concerning the assignment of money rights, have produced a marked effect upon the modern jurisprudence of personal property.1 And in Equity, 241, 242. The subject of the assignment of rights of action, as tending to the common-law offences of champerty and maintenance, is left by the later decisions in a state of considerable uncertainty. See Danforth v. Streeter, 28 Vt. 490; and Story Eq. Jur. § 1057 c, 10th edition. 1 A patent right is assignable, and so is a copyright; and such rights being conferred by statute they are likewise protected by appropriate legislation. In case of the former, where letters-patent are requisite, the thing to be assigned is not the mere parchment, but the monopoly conferred, the right of property which it creates; and, when the party has acquired an inchoate right, an assignment of it is legal, and an invention may be sold as well before as after the application for a patent. Act of Congress, July 8, 1870; Gayler v. Wilder, 10 How. 477, 493; Rathbone v. Orr, 5 McLean, 132; 120 N. Y. 213. See chapter, post, on Patents and Copyrights. An unliquidated balance of account is now assignable. Westcott v. Potter, 40 Vt. 271. But not items in a mutual account unadjusted and before a balance is struck. Nonantum Co. v. Webb, 124 Penn. St. 125. Assignment of the right to sell and canvass for a patented machine as agent may be verbal. Springfield v. Drake, 58 N. H. 19. And a claim for damages, though arising ex delicto, of a kind which on the death of the party would survive to his executors or administrators as assets, may also in many instances be assigned. Freeman v. Newton, 3 E. D. Smith, 246; McKee v. Judd, 12 N. Y. 622; Nor Quin v. Moore, 15 ib. 432. But a mere right of action for a tort is not assignable unless statute permits. Hunt v. Conrad, 47 Minn. 557; Murray v. Buell, 76 Wis. 657; Central R. v. Brunswick R., 87 Ga. 386. the right to bring a bill in equity for a fraud committed on the assignor. Gardner v. Adams, 12 Wend. 297; Story Eq. Jur. § 1040 h; Dunklin v. Wilkins, 5 Ala. 199; Dickinson v. Seaver, 44 Mich. 624; 104 Mass. 353. And see Dewitt v. Brisbane, 16 N. Y. 508. For in these last two instances an assignment is thought to be contrary to public policy, and savoring of the character of maintenance; grounds, as we have just seen, upon which equity refuses to lend its assistance to petitioners. Supra, § 74. But as to waiving the tort one may assign a right of action for conversion. Smith v. Thompson, 94 Mich. 381. One's interest in a suit may be assigned in various modern instances. As a suit for negligence. 78 Mich. 681. Or against a common carrier for loss or injury to goods. R. v. Read, 87 Va. 185. cause of action founded on property which survives. 46 Wis. 118; 100 Mo. 406. But an instalment of alimony not yet due is not assignable. Kempster v. Evans, 81 Wis. 247. Nor is a contract founded in personal trust and confidence assignable at the option of one party alone. Lansden v. McCarthy, 45 Mo. 106; 138 Ill. 43. A promissory note with its accompanying bond or guaranty may be thus transferred. 43 Minn. 466. Or stock certificates with their incidental rights. Wages or earnings are assignable. Norfolk Or any injury to § 74, this country, where we find that, in many States, a fusion, more or less imperfect, of equity and common-law doctrines is gradually being accomplished, it appears to be already a well-settled rule that, if the assignment of a debt be followed by the debtor's promise of payment to the assignee, the latter may enforce it by a suit in his own name; inasmuch as such a promise operates as a ratification of the duty recognized in equity which resulted from the assignment.1 This Or a note. And the preference or lien that goes with it. Or a broker's or agent's profits. 82 Me. 458. lawyer's fees in a suit, subject to equities of parties litigant. 36 Fed. 147. Heirs or legatees may assign. 142 Mass. 366; 62 Hun 622; even expectancies in an ancestor's estate. 160 Penn. St. 156. Or partners, so as to give the assignee the right to sue for a partnership accounting. Greenwood v. Marvin, 111 N. Y. 423. A right of action on a contract is assignable, unless statute or the nature and terms of the contract exclude it. First Nat. Bank v. Maxfield, 83 Me. 576. Particularly if its obligation may be discharged by a mere money payment. Rochester Co. v. Stiles Co., 135 N. Y. 209. The limits prescribed in a contract must be observed. Burck v. Taylor, 152 U. S. 634. Statutes are found in aid of this right to assign. And see 159 Mass. 477. It is held against public policy for an executor (semble any fiduciary in the probate court) to assign his fees not yet ascertained and approved. Worthington, Re, 141 N. Y. 9. 1 Compton v. Jones, 4 Cow. 13; Crocker v. Whitney, 10 Mass. 316; Cromelien v. Mauger, 17 Penn. St. 169; 2 Am. Lead. Cas. 5th ed. 145, 209, and cases cited; Tiernan v. Jackson, 5 Pet. 580. "If," as was observed in a Pennsylvania case, "there be a debt due by the defendant, which has been assigned to the plaintiff, and in con sideration of that debt and that assignment the defendant expressly promises to pay the plaintiff, the latter has a good cause of action." Per Lowry, J., in Cromelien v. Mauger, 17 Penn. St. 169. But the law courts of England do not seem to have proceeded quite so far in favor of the assignee; for they adhere very strictly to the doctrine that a promise made by the debtor to his creditor for the payment of his debt to a third person is not valid unless such third person is a party to the contract, and agrees to relinquish some claim or demand against the original creditor; even though such third person subsequently accepted the promise in lieu of an original demand which he had against the original creditor. Cochran v. Green, 9 C. B. N. s. 448. See Lilly v. Hays, 5 A. & E. 548. In New Hampshire it has been decided directly to the contrary. Warren v. Batchelder, 16 N. H. 580. But see Blymire v. Boistle, 6 Watts, 182. See Am. Lead. Cas. 5th ed. 209-217. The common-law objection to such a transaction would be that the third person does not thereby discharge the original creditor from liability on the debt due to himself, but accepts the debtor's liability to the original creditor as a sort of collateral security for his own benefit. But in equity such a transaction would be viewed as an equitable appropriation, transfer, or assignment of the debt. And, to sustain an equitable assignment, it is not necessary that the debt, on subject is regulated by various practice codes as to the party in whose name a suit should be brought; but there are still various informal assignments which, if not legal, are upheld as equitable. § 76. The Same Subject; What may now be assigned. Every species, therefore, of incorporeal personal property, with a few nominal exceptions, -as certain rights to litigate, whose transfer is still deemed repugnant to sound policy, or made illegal by statute,1 and in positive instances things with no actual or potential existence,2- may now be assigned. Debts, claims, and demands of a money value may accordingly change owners; which is constantly done, though not always without pursuing formalities of a peculiar sort, based upon the theory that an incorporeal chattel of a particular class requires delivery of its appropriate muniment or voucher and of a writing of transfer besides. Equity is constantly encroaching upon the legal doctrine of assignment, and nullifying the letter of transfer requirement, out of regard to the transferring party's intent.3 All personal property of an incorporeal character, if not negotiable, may, as a rule, be account of which the transfer is made, should be satisfied; it is enough that it exists; and an assignment by way of collateral security is as valid as if it were accepted in payment. See 3 Lead. Cas. Eq. 379, 3d Am. ed.; 2 Am. Lead. Cas. 214, 215. And see chapter on Debts, post. It is towards this latter and more liberal view of an assignment of money rights that the American courts are steadily tending. "The ordinary course," says Bovill, C. J., in a recent English case, " where it is intended to give a security on a fund in the hands of a third party, is to give an order upon such third party to pay, or an authority to the creditor to receive, the money." Field . Magaw, L. R. 4 C. P. 660. In this case it was held that a mere verbal promise (without notice to the debtor) to pay money when the debtor received a debt due him from a third person constituted no assignment of such third person's debt. Ib. Upon the doctrine of equitable assignment of a debt, which is subtle, the common-law courts inclined to put a restraint. And yet in English practice it is a proper equitable plea (allowed in a court of law, since otherwise equity would enjoin), that the plaintiff assigned the debt to B, who gave notice to the defendant, and that the assignment still remains in full force. Jeffs v. Day, L. R. 1 Q. B. 372. 1 Supra, § 74 and note. All right and title to the goods in a replevin suit is upheld. Caldwell v. Perry, 86 Mich. 266. 2 Kendall v. United States, 7 Wall. 113; Gragg v. Martin, 12 Allen, 498. 8 Winfield v. Hudson, 4 Dutch. 255; Welch v. Mandeville, 1 Wheat. 236, per Story, J. assigned by the owner at the present day; and even the transfer of a negotiable instrument by mere delivery, without the technical indorsement, has been in certain instances protected, for the transferee's benefit, on the broad basis of a transferring intent and an equitable assignment; though an assignment imports not, like an indorsement, the ability of the primary debtor to pay, but rather, if for value, the thing's genuineness, as in a corresponding transfer of corporeal property.1 In this connection the terms "legal" and "equitable assignments are sometimes used confusedly. The law has in truth so far succumbed to equity, that it now lends its support and protection to the enforcement of an assignee's rights, though in practice requiring suit to be brought in the assignor's name, a practice, moreover, which local statute has largely modified. Equity, when invoked, pursues remedies after its own form. But the doctrine of legal assignment has become substantially that of equitable assignment, as concerns the right; and in general every transfer by assignment of incorporeal chattels, whether by deed, by writing not under seal, or even by delivery of the muniment or voucher with mere words of parol transfer (though local statutes often repudiate parol assignments to a great extent, while equity inclines to sustain them), is upheld in law as well as equity.2 § 77. The Subject continued; What constitutes an Assignment. As a general rule, anything written, said, or done in pursuance of an agreement, and for valuable consideration, or in consideration of some pre-existing debt,3 to place a money 1 Wolfe v. Tyler, 1 Heisk. 313; Stiles v. Farrar, 18 Vt. 444; Dyer v. Homer, 22 Pick. 253; Giffert v. West, 33 Wis. 617; Robinson v. McNeill, 51 Ill. 225; 60 Mich. 432. And see § 84, post, as to indorsement. 2 See Allen v. Pancoast, Spencer (N. J.), 68; Welch v. Mandeville, 1 Wheat. 236; Hooker v. Eagle Bank, 30 N. Y. 83. But the assignee of a legal right may not proceed by bill in equity merely because he cannot sue in law in his own name. Hayward v. Andrews, 106 U. S. Supr. 672; Walker v. Brooks, 125 Mass. 241, per Gray, C. J., commenting upon Story Eq. Jur. § 1057 a. 8 A valuable consideration actually rendered is a necessary element to an equitable assignment, the assignment being insufficient in law. Tallman v. Hoey, 89 N. Y. 537. |