CH. 24.
Art. 1.

3 Inst. Ch. 418.

2 Maule &

it was a proper question of fact for them to decide. Ld. Kenyon C. J. said, "there is fraud apparent on the face of the transaction."

Lawrence J. held the boatman, Green, did not act under the proper authority of the defts. ; that is, as Le Blanc J. explained it, the boatman, Green, had no power from the deft. to take goods from Wolverhampton to Birmingham, and that this business the deft. assigned to another servant.

In this book is a regular plea by a carrier, that he was robbed of the goods entrusted to him to carry, and in his plea he states particularly how he was robbed, &c.

2. Assumpsit against the deft., as a carrier by water, from Sel. R. 1,5. Bristol to Worcester, for not safely carrying sugar, &c. He had given notice he would not be liable for loss or damage, unless by the actual negligence of the master or mariners. Held, he had not waived his notice, by paying previous losses to the plts. for damage, without enquiring into the cause of such damage.

CHAPTER XXIV.

2 Bl. Com. 396, 397.Saik. 654,

-2 Cruise 6. -4 Cruise 162, 172.

ACTION OF ASSUMPSIT. CHOSE IN ACTION.

ART. 1. A chose in action, is rather a thing in potentia, than in esse. All property in action depends entirely upon contracts, Arnold's case. either expressed or implied; which are the only regular means of acquiring a chose in action; on the non-performance of all which, the law gives an action of some sort to the injured party, who regularly has no possession, till it is acquired by judgment and execution. But he has property in the evidence of the debt, as the bond &c.; and may maintain trover to recover it. Choses in action are debts due from nations as well as individuals.

2 Bl. Com. 442.

1 T. R. 26,

ART. 2. How a chose in action, substantially, belongs to the assignee, though he must sue in the name of the assignor. Delancey v. Debts to the crown, however, were always assignable. In this case a policy was assigned over, and it was held it was recovered to the use of the assignees, in the case of a loss. Bond assigned; see Legh v. Legh, Ch. 167, a. 4.

Stoddart.

2. In this case many authorities are cited by Justice Buller to shew that a chose in action is now in substance assignable, though not in form. It has long been held that the assignment of a bond is a good consideration of a promise. But a right of entry is in no sense assignable.

3. In this case it was decided that the assignment of a chose in action need not be by deed: nor is it necessary in pleading, to set forth the manner of the assignment.

is

§ 4. In this it was decided that a policy of insurance assignable, so far as to vest an equitable interest in the assignee, by the assured's assignment, though the underwriter do not assent, or know of the assignment; and after this assignment he is not trustee to the assured, but owes the loss to the assignee, and not to the assured,

in Read v.

§ 5. In legal strictness, a chose in action cannot be assign- 6 T. R. 362, ed; "still according to the rules of equity and honest dealing, Dupper. if the assignee give notice to the debtor of such assignments, he shall not afterwards be suffered to avail himself of a payment to the principal in fraud of such notice."

2 Woods'

6. It has been determined, that in equity, a husband may Con. 158 assign a chose in action, which he has in the right of his wife, and which, also, he may recover or discharge.

7. If the obligor, after notice of the assignment, pay the 4 T. R. 125. -Imp. M. P. money to the obligee, he will be compelled to pay it over 54. again, though payment without notice is good. Legh v. Legh. 1 T. R. 619. $8. The assignor, who has become a bankrupt, may sue Winch v. the debtor for the benefit of the assignee; for by the as- Keeley. signment, the property is his in equity. Nor does a debt due to a bankrupt, as a trustee for another, pass under the assignment of his effects, after the assignor has assigned the chose in action, as a balance of accounts &c. He is merely trustee of the deft., for the assignee. And the courts of law will now taks notice of a trustee, though they did not formerly.

1 T. R. 621.

9. So the debtor may offset with the assignee, as where Bottimly r. the deft. pleaded that he owed the bond to the plt., who held Brooks, cited it in trust for one A, and that she owed the deft. more than Same Rudge the amount of the bond. On demurrer to this plea it was ad- v. Birch. judged good. So after an assignment, the obligee holds the bond in trust for the assignee.

Court, June,

§ 10. In this case, one Read obtained a judgment and exe- Mass. S. Jud. cution against Murry, and assigned them over to Cobb, with a 1795, Hudpower of attorney annexed, to receive the amounts to his, son's case. Cobb's use. He sent this execution to Hudson, a deputy sheriff, to collect of Murry, and to pay the same to Cobb. To this, Hudson assented, Hudson received the debt of Murry, and before Hudson had paid it over to Cobb, Hudson was attached as trustee to Read, the judgment creditor. But the

CH. 24.
Art. 2.

W

3 M. R. 558, Wakefield v. Martin.

3 Salk. 120.

9 M. R. 337.

Vatt. lib. 3, ch. 5. s. 77.

3 Bos. &. P.

-1 Rob. R. 196.-13 Ves. jr. 71.

court held that Hudson was not trustee to Read, because in justice and equity, the debt was Cobb's property, by virtue of the assignment. This decision was in a court of law.

11. In this case the court decided that the assignment of a policy of insurance vests an equitable interest in the assignee, without notice to the underwriter. Before notice to him, this interest is in the assignee, and notice to the insurer is, that he may have no excuse for paying the assured.

§ 12. Where a chose in action is created by deed, as a bond &c. the destruction of the deed is the destruction of the duty itself.

13. See when the assignment of a chose in action is not defeated by the death of the assignor, and several points as to the assignments of a chose; Dawes, Judge, v. Boylston, Ch. 14, a. 3, Assignments.

14. Debts due from foreign nations, are not in modern practice, usually confiscated, but payment is suspended 191.--Beawes during a war between the debtor nation and the creditor's. 38.-1 Rob. But Vattel thinks the debtor nation, in such case, has a right R. 200, case of the Hoop. to confiscate, and so the debts its subjects owe to their enemies, at least forbid payment during the war. England and the United States adopt the latter course. Such creditors cannot sue during the war; and on the ground, above stated, no alien enemy can sue. And in case of the debtor's bankruptcy, it may be proved, though not paid during the war. But this doctrine of suspension only, does not apply to a contract made with an enomy during a war; for such contract is void, except in some very special cases. According to a case in Parker's R. 207, the old law was confiscation, even of debts contracted in a time of peace: but this doctrine has been discontinued in modern times. 3 Bos. & P. 191, 200, Furtado v. Rogers: but such debts are more properly considered as a part of a political system.

§ 15. Bond, assigned in New-Jersey. The assignee of a bond cannot sue the assignor on failure of the obligor to pay it. Pennington 20, Garretts & al. v. Van Ness, id. 211. So in the case of a sealed bill. Penning. 158, Harris, admr. ข. Clark.

16. By the statute in New-Jersey, enabling the assignee of a bond to sue in his own name, bonds are put on the same footing with personal property in possession; and the buying and selling them must be governed by the same law. Penning. 158. In equity on the sale of a chose in action, or of a right in equity, it is a good rule to give notice to the debtor and trustee this binds him. Tourville v. Naish, 3 P. W. 307; Davies v. Bustin, 1 Vesey jr. 247, 249; 2 P. W. 495; 15 Ves. jr. 354; 2 Taun. 413. Such notice may give a

preference to a second, over a first endorsee, who does not give it. Stanhope v. Verney, Co. Lit. 290; and 9 Vesey jr. 410. If B buy a chose in action or equitable title of A, B must abide by A's case, and will be entitled to his remedies. Whitfield v. Fausset, 1 Vesey 387; Turton v. Benson, 2 Vern. 764; 7 Vesey jr. 245; Priddy v. Rose, 2 Mer. 86; 1 Dallas 28; 1 Yeates 23; Murray v. Sylburn, 2 Johns. Ch. R. 443; Norton v. Rose, 2 Wash. 233; Porter v. Blackenridge, Hardin 24; 17 Vesey jr. 485; 3 Atk. 238. But if a chose in action or a right &c. be subject to any lien &c., and the purchaser or assignee knows it, equity will not aid him. though he pay a full consideration. Murray v. Finch, 2 Johns. Ch. R. 157. He is in the shoes of the seller, Jackson's case, Lane 60; Taylor v. Stibberts, 2 Vesey jr. 437; 1 Yeates 291; 2 Bin. 455; 2 Munford, 527.

Cн. 24.

Art. 3.

1 Mass. R. ART. 3. Further cases in the United States. The law will 117, Perkins protect the equitable interest of the assignee of a chose in ac- v. Parker. tion; but the assignment must be for an adequate consideration, and so appear by the pleadings. And a quære is added if such assignment must not be by deed, even though the thing assigned is evidenced by writing only. It is difficult to discern whence this doubt arose.

1. Also see Ridden, admr. v. Shute, admr., the case of a debt in the probate office sold, Ch. 2, a. 8.

10 Mass. R.

§ 2. A seaman's future wages assignable by parol &c. 316, Crocker Isaac Head, a seaman in the ship Favourite, bound on a voyage & ux. v. to India and back, owed the plt's. wife, while sole, $188,85, Whitney, on a promissory note. The deft. Whitney, was supercargo on the same voyage, and at Head's request, by a memorandum on the note, signed by the deft., promised her to pay said sum, "if Head should have so much on board said ship on his return to Nantucket ;" which meant, as the plt. averred, if there should be so much due to the said Head from said ship. She returned, and the plt. averred there was as much due &c. Verdict for the plt.-judgment on the verdict. The principle settled in this case was this: that Head, for a valuable consideration, and existing debt to Mrs. Crocker, assigned to her, and this he might by parol, his wages due, and to be due to him in the voyage, and the deft. having notice of this, there was imposed on him an equitable and moral obligation to pay the money" to her, the assignee, and this was a good consideration for the deft's. said express promise. No objection the assignment was of an unliquidated balance of account. If the deft. promised to pay what should be found to be due from him, he became liable for the amount when ascertained. Nor any objection it was of monies to become due in future. The form of the deft's. promise and the verdict, were relied on

66

CH. 24.
Art. 3.

1 Cranch 423.

2 Cranch 342, Winchester v. Hackley.

6 Cranch 82, Lewis v. Harwood.

6 Cranch 204, Stewart v. Anderson, in

error.

Toller's L. of
Ex. 157 &c.

59.

Off. Ex. 65.

as proving the deft. was indebted to Head for his wages &c. though this fact of his being so indebted was not alleged in the plt's. declaration. The court held the deft's. promise was merely limited, as to its extent, and not a condition precedent to the performance of it. "It is not a promise to pay the plt's. debt, on condition only of his having enough in his hands to pay the whole but a promise to pay to the extent of what he may have in his hands." There arises on this case but one doubt, if any; and that is, how the court could presume the jury found a very material fact to be true, to wit: the deft's. being indebted to Head, when this fact was not alleged in the plt's. declaration. That only averred so much due to Head from the ship. The general rule being, the proof must be according to the allegations, and the verdict according to the proof.

3. Cases in the federal courts. The meaning of the rules a chose in action is not assignable.

A had an open account with B, and assigned it to C, with
B's assent.
A may still sue the account in his name against
B for C's use; but B may off-set his claims against C.
168, a. 6, s. 8.

Ch.

4. A bond sued, breaches assigned, and a jury to assess damages, is not assignable as a chose in action, on the statute of Virginia the debt is too uncertain. Only a money debt is assignable by the act of 1748.

5. In Virginia, the assignee of a negotiable note sued the maker. Held, he might set-off such note as he held against the assignor at the time he had notice of the assignment of such chose in action; though the note to said maker, was not due at the time of the notice, but became due before the note sued. The act of Virginia provides that assignments of bonds, bills, and promissory notes, and other writings obligatory for payment of money or tobacco, shall be valid; and an assignee of any such, may thereon maintain an action of debt in his own name, but shall allow all just discounts, not only against himself, but against the assignor before notice of the assignment was given to the deft.

Choses in action, how assets &c. in the hands of executors and admrs. generally, not till recovered. They are entitled -3 Bac. Abr. to all the debts of the deceased, accrued in his life time; as judgments, recognizances, debts due on special contracts, as for rent; or on bonds, covenants, &c. under seal; or on simple contracts, as notes and promises, expressed or implied. So to damages for trespasses on the deceased's goods in his life 1 Vent. 187. time, by 4 Ed. 3, c. 7. So for converting them, or for a -Poph. 189. trespass with cattle in his close, or for cutting his growing corn, a chattel, and carrying it away at the same time; and so to

-3 Bac. Abr.

59.