II. WHAT MAY BE THE SUBJECT OF AN ASSIGNMENT. ASSIGN- What may be As an assignment, like every other species of conveyance, is the evidence and execution of a prior contract or assigned. agreement, it follows, that whatever may be the subject of an agreement may also be the subject of that species of assurance which is calculated to transfer it to the assignee1; hence the subject of this section has, in a great measure, been anticipated by the remarks which have been made on the SUBJECT MATTER OF AGREEMENTS; some few observations are still, however, referrible more particularly to this head. By the common law, nothing could be assigned over to another but what was in the actual possession of the assignee, "the wisdom and policy of the sages and founders of our law having provided, that no possibility, right, title or thing in action, should be granted or assigned to strangers, lest it should be the occasion of multiplying suits and contentions'." This nicety is now, however, disregarded, and our courts of equity considering that, in a commercial country, almost all personal property must necessarily lie in contract; and considering also, that the assignment ought in justice to the assignee to be construed to be a covenant on the part of the assignor, that the assignee shall thenceforth possess the thing assigned to his own use, will protect the assignment of a chose in action, as much as the law will that of a chose in possession; though, in compliance with the ancient principle, the form of assigning a chose in action is still in the nature of a declaration of trust, and an agreement to permit the assignee to make use of the name of the assignor in order to recover the possession (1); and therefore, when in common accep1 See Co. Lit. 232,b, n. (1). s. 347; Co. Lit. 214, a; 1 Ante, part i. c. i. Rol. Abr. 376; Skin. 6, 26. 1 See 10 Co. 48, a; Lit. 1' (1) See observations of Mr. Justice Buller, on the assignment of choses in action, in Master v. Miller, 4 Durnf. & East, 320. ASSIGN- tation a bond is said to be assigned over, it must still be sued in the name of the original creditor; the person to whom it is transferred, being rather an attorney than an assignee. Now, therefore, it may be said, that any estate or interest in lands or tenements, whether certain or contingent, or present or reversionary; and all present and certain estates or interests in incorporeal hereditaments, as advowsons, rents, &c. though to commence in futuro; may be assigned ". And as in equity a bond is assignable for a valuable consideration paid, and the assignee alone becomes entitled to the money, if the obligor, after notice of the assignment pays the money to the obligee, he will be compelled to pay it over again. But the assignee must take it subject to the same equity that it was subject to in the hands of the obligee, as if on a treaty the intended husband enters into a marriage-brokage bond, which is afterwards assigned to creditors, yet it still remains liable to the same equity, and is not to be carried into execution against the obligor 9. It was also formerly doubted whether an annuity was at law assignable, even though assigns were mentioned in the grant, the argument being, that it was a mere personal contract, and therefore a chose in action; and though this objection appears to have some weight, yet it has been overruled even at law. And as the principle of the objection is the same, whether assigns be mentioned or not, it should seem to be now equally assignable though they be not mentioned $. The interest which a lessee has in his term before entry is also assignable over: but where a lessee has a covenant for a further term, in case the premises be in good repair at the end of the first term, it seems doubtful whether his interest in such conditional term can be made the subject of an assignment at law". And, in general, a lessee may assign his term to another at pleasure, unless restrained by express covenant*, yet there is said to be this difference taken, that if the lessees or assignees have continued long in possession, and the premises are worsted, and become ruinous under their hands, or by their means, there the assignment to a beggar would be considered to be a fraud to get rid of the damage, which they ought to answer. But if they assign immediately after their coming into possession, there is no ground to relieve, because the assignee was not chargeable at law, and the lessor had his original security against the lessee and his executors unimpeached". But where a man makes a lease, rendering rent, if the lessee assigns to a beggar or insolvent person, in equity the lessee shall be bound to pay the rent, which is a common case2. Whether equity will, in order to secure the future rents under any circumstances, restrain an assignee from assigning to a beggar or insolvent person, was considered, but not determined, in the case of Philpot v. Hoare. If the lessee offer to give up the possession to the lessor on reasonable terms, and the lessor refuse to accept such surrender, it appears clearly too much for a court of equity, in restriction of a legal right, to prevent the assignment. But supposing the lessor to be willing to accept of a surrender ASSIGN MENT. ASSIGN- of the term, and the lessee wantonly to insist on his legal right to assign, when and to whom he pleases, it should seem that, under certain circumstances, a court of conscience might without impropriety, interpose to prevent the abuse of such right . And several things are assignable by acts of parliament, which seem not assignable in their own nature: as promissory notes by 3 & 4 Anne, c. 9; bail-bonds by the sheriff, by 4 & 5 Anne, c. 16; a judge's certificate for taking and prosecuting a felon to conviction, by 10 & 11 Will. 3c. 23; a bankrupt's effects by the several statutes of bankruptcy d. But guardianship in soccage cannot, according to the better opinion, be assigned. So neither can the pay of an officer in the army or navy, whether it be full or half pay, be assigned; it being contrary to the policy of the law, that a stipend given to one for future services, should be transferred to another who cannot perform them. A distinction was indeed formerly taken between full and half pay, the former being pro servitio impendendo, the latter pro servitio impenso 3. But no difference is now admitted between them; all emoluments of this sort being granted for the dignity of the state, and for the decent support of those who are engaged in the service of it. "It would therefore be highly impolitic to permit them to be assigned; for persons who are liable to be called out in the service of their country, ought not to be taken from a state of poverty: besides, an officer has no certain interest in his half-pay, for the king may at any time strike him off the list; however frequently, therefore, these said assignments have been made in fact, • See Fonb. Eq. b. i. c. v. s. vi. d See 1 Cook's Bank. L. 26, 282; 1 Fearne's Posth. Wks. 75, 83. • Gilb. Eq. Rep. 177. f Barwick v. Reade, 1 Hen. Blac. Rep. 627, and note (b) there. 8 See Stuart v. Tucker, 2 Blac. Rep. 1137. they cannot be supported in law." And the wages of ASSIGNseamen are forbidden to be assigned by statute1. So neither can a personal trust which one man reposes in another, be assigned over, however capable the assignee may be to execute the trust *. III. THE CIRCUMSTANCES REQUISITE TO THE VALIDITY OF AN ASSIGNMENT. MENT. assignment. THE first requisite, since the statute of frauds, to the Requisites of an validity of an assignment, is, that it be in writing'; for by that statute it is enacted, that no leases, estates or interests, either of freehold or terms for years, or any uncertain interest in lands, shall be assigned, unless by deed or note in writing, signed by the party or his agent lawfully authorized by writing. But under this statute it has been holden, that an assignment may be made by a mere note or memorandum, without being either sealed or delivered ", or even stamped". It would, however, it is submitted, (particularly with respect to the latter circumstance,) be extremely imprudent in an assignee to be satisfied with so loose a form. The consideration requisite to support an assignment is, at law, the same as that required for the validity of other' contracts and conveyances not operating by transmutation of possession. And though the cases referred to in the preceding page incontrovertibly establish the principle that choses in action, and interests in contingency, are assignable, yet they seem also to shew, that in the case of assignment of personal interests, equity will, in general, require the assignee to prove that he gave a valuable consideration for the interest |