decree may in the most sweeping terms convey all his property or income.1

$324. Pensions; Retired Pay. The general rule is that pensions or retired pay granted to public servants are assignable, if they are merely annuities for past services, but if they are given, in part, in consideration of a right to call for further services if occasion requires, they are not; 2 though it is said that accumulated arrears of pay may be assigned.3 The subject is usually regulated by statute, which of course overrides this rule. Pensions granted by colleges and other quasi private corporations are assignable."

In the United States, pensions to soldiers and sailors are, by statute, inalienable. Nothing is provided as to the pensions of retired judges. These two classes comprise all the pensions granted by the United States. Prize money is not pay or half pay and is assignable, before as well as after it is actually awarded.8 If a statutory prohibition against assignment of claims upon the government is intended merely for the protection and convenience of the officers of the treasury an assignment is good as to other parties.9

§ 325. Personal Actions. There are some causes of action of a peculiarly personal nature, which are not assignable, even by a decree in bankruptcy. A learned judge explains these exceptional cases by the consideration "that it would in many cases be attended with extremely harsh and unjust consequences if the discretion, as to whether a redress for wrongs

1 Wills v. Wells, 8 Taunt. 264; Ex parte Wicks, 17 Ch. D. 70; Gillan v. Gillan, 55 Penn. St. 430; Ex parte Webber, 18 Q. B. D. 111.

2 2 Story, Eq., 13th ed., § 1040 e; Oliver v. Emsonne, Dyer, 16; York v. Twine, Cro. Jac. 78; Wells v. Foster, 8 M. & W. 149; Spooner v. Payne, 1 De G. M. & G. 383; s. c. 18 L. J., Ex. 401; McCarthy v. Goold, 1 Ball. & B. 387 ; Ellis v. Earl Grey, 6 Sim. 214; Knight v. Bulkeley, 5 Jur. N. s. 817; Ex parte Huggins, 21 Ch. D. 85 Heald v. Hay, 3 Giff. 467; Carew v. Cooper, 4 Giff.

619.

8 See Ellis v. Earl Grey, 6 Sim. 214; Tunstall v. Boothby, 10 Sim. 542; 2 Story, Eq., 13th ed., § 1040 f.

4 See Robson, 7th ed. p. 482.

5 Harrington v. Kloprogge, 2 Brod. & B. 678.

6 R. S. § 4745.
7 R. S. § 714.

8 Alexander v. Wellington, 2 Russ. & M. 35.

9 See Lawrence v. U. S., 8 Ct. Claims R. 252; Williamson v. Colcord, 13 N. B. R. 319, 328, Fed. Cas. No. 17,752.

of this nature should be sought, was to be intrusted to any one but the very person who has received the injury. "1

For these reasons, a right to damages for libel or slander, for seduction of a wife or daughter, and for injuries to the debtor's person, whether from assault or from a breach of a carrier's contract, or of that of a physician, does not pass to the assignees.2

§ 326. Judgments in Personal Actions. If, however, before bankruptcy any of these personal demands have been liquidated by contract, judgment or award, they become debts which vest by the decree. But where assignees were entitled to afteracquired property, as we shall see that they are in England in certain cases, it was held that they could not require a verdict obtained by the bankrupt for such injuries, to be paid to them. The personal right which an infant has to avoid certain acts and deeds does not vest in his assignees.5

§ 327. Possibilities. Mere expectancies, sometimes called possibilities, will not vest in the assignees; such as the chance of being heir to a living person; 6 the possibility that an option or power of appointment will be exercised, if vested in a third person, though it be the wife of the bankrupt;7 so of an inchoate right of curtesy in a (vested) remainder; but in Massachusetts before the late married women's acts, the husband's equitable right in a vested remainder passed, subject to the

2 Benson v. Flower, W. Jones, 215; Langford v. Ellis, 14 East, 202 n.; Howard v. Crowther, 8 M. & W. 601; Ex parte Graham, 21 L. T. N. s. 802; Dillard v. Collins, 25 Gratt. 343; People v. Tioga, 19 Wend. 73; Stone v. Boston and Maine R. R., 7 Gray, 539; Rice v. Stone, 1 Allen, 566; Re Crockett, 2 N. B. R. 208, Fed. Cas. 3402; Re Brick, 4 Fed. Rep. 804. See McClurg v. State Bindery Co., 3 So. Dak. 362; Re Haensell, 91 Fed. Rep. 355. Under the act of 1898 actions for damage to property pass to the trustee, § 70 a 16. See infra, § 533.

8

6 Moth v. Frome, Amb. 394; Jones . Roe, 3 T. R. 88; Carleton v. Leighton, 3 Meriv. 667; Re Inkson's Trusts, 21 Beav. 310; Lyde v. Mynn, 4 Sim. 505; Re Duggan's Trusts, L. R. 8 Eq. 697; Smith v. Baker, 1 Y. & C. (Ch.) 223.

7 Re Vizard's Trusts, L. R. 1 Ch. 588; Lee v. Olding, 2 Jur. N. s. 850; Ex parte Dever, 18 Q. B. D. 660.

371.

Gibbins v. Eyden, L. R. 7 Eq.

wife's equity to a settlement.1 In England, where the bankrupt had an interest under a marriage settlement, subject to a power, and the power was not exercised, the assignees were held to be entitled, though the donee of the power died after the bankrupt's discharge.2

§ 328. Only existing Rights pass. The rule that the assignees take whatever the bankrupt could convey, does not mean all that he might bind himself to convey by a covenant which a court of equity would enforce. This is explained by the Master of the Rolls in Johnson v. Smiley.3 "In one sense a person may validly dispose of property which is not his own; for instance, he may enter into a covenant, for value, to convey to the covenantee every species of property which he might thereafter have devised or bequeathed to him by any stranger, and which he had not, at the time of the covenant, any knowledge of or expectation of receiving. This is not an unusual provision in marriage settlements, but this clearly is not an interest which would pass to the assignees [in bankruptcy]. . . . When, therefore, I speak of an interest which the bankrupt could dispose of, I mean an existing interest, whether vested or contingent, and which, if conveyed or released and assigned by him, requires no further act, on the part of the bankrupt, to vest it in the purchaser."

§ 329. Divisible Causes of Action. There are some few cases in which a cause of action which would have been single if the creditor or claimant had remained solvent, may be divisible, so that the assignees and the bankrupt may severally maintain actions; as where upon a continuing but divisible contract the bankrupt has rendered some services before bankruptcy and some after. But if the cause of action is one which in justice to the defendant cannot be divided, and yet the assignees are entitled to a part of the damages, they are the parties to sue as trustees for themselves and the other

1 Gardner v. Hooper, 3 Gray, 398.

2 Re Davidson's Trusts, L. R. 15 Eq. 383.

3 17 Beav. 223, 230; 22 .L. J. N. s. Ch. 826, 829.

4 See Castelli v. Boddington, 1 E. & B. 66, 879; Re Jones, 4 N. B. R. 347, Fed. Cas. No. 7448; Wetherell v. Julius, 10 C. B. 267; Bickford v. Barnard, 8 Allen, 314; Doll v. Cooper, 9 Lea, 576.

party; as where the bankrupt has assigned part of a debt to a purchaser for value, or where he is entitled to pecuniary damages and some personal damages besides.1

§330. Powers of Appointment. A mere power of appointment though it might be exercised for the benefit of the donee himself is not property and therefore does not vest in the assignees of the bankrupt donee.2 It may be lost by the bankrupt, if it is appendant to and affects only his own equitable estate; for that passes to the assignees. But if it is in gross, having no connection with his title, or if it can be exercised in such a way as not to impair the title of the assignees, or, if they assent, it may then or to that extent be exercised by the bankrupt.*

3

By many statutes this rule is changed and a power which the bankrupt might make use of for the benefit of creditors vests in his assignees. Under such statutes, if the due exercise of the power depends upon a contingency, the assignees will take subject thereto."

-If bills or notes

§ 331. Notes sent to a Bank for Collection. are remitted by a customer to his banker, the presumption is that they were sent for collection, and if the banker becomes bankrupt before they have been realized, and the proceeds have by the assignees been mixed with the money of the bankrupt, they must restore them in full. There may be a contract or

1 See Sims v. Thomas, 12 A. & E. 536; D'Arnay v. Chesneau, 13 M. & W. 796, 809, per Parke, B.; Hodgson v. Sidney, L. R. 1 Ex. 313; Morgan v. Steble, L. R. 7 Q. B. 611; Whitmore v. Gilmour, 12 M. & W. 808.

2 Thorpe v. Goodall, 17 Ves. 388, 460; Jenney v. Andrews, 6 Mad. 264. See Warburton v. Farn, 16 Sim. 625; Jones v. Clifton, 101 U. S. 225; Brandies v. Cochrane, 112 U. S. 344; Clark v. Wilson, 16 N. B. R. 356; Ex parte Gilchrist, 17 Q. B. D. 521.

3 Doe v. Britain, 2 B. & A. 93; Badham v. Mee, 7 Bing. 695, 1 Myl. & K. 32; Hole v. Escott, 2 Keen, 444; Bringloe v. Goodson, 4 Bing. N. C. 726.

4 Jones v. Winwood, 3 M. & W. 653; Simpson v. Bathurst, L. R. 5 Ch. 193; Alexander v. Mills, L. R. 6 Ch. 124, approving Holdsworth r. Goose, 29 Beav. 111, and Eisdell v. Hammersley, 31 Beav. 255.

Robson, 7th ed., p. 480; Act of 1898, § 70 (3). See infra, § 533. 6 Warburton v. Farn, 16 Sim. 625; Jenney v. Andrews, 6 Mad. 264.

7 Ex parte Smith, Buck, 355; Giles v. Perkins, 9 East, 12; Zinck v. Walker, 2 W. Bl. 1154; Bolton v. Puller, 1 Bos. & P. 539; Thompson v. Giles, 2 B. & C. 422; Ex parte Armitstead, Gl. & J. 371; Ex parte Edwards, 2 Mont. D & De G. 625; Ex parte Atkins, 3 Mont. D.

course of dealing by which the banker becomes the owner of such bills or notes; but all presumptions are against it, and the cases on that side are few.1 The question is always one of fact.2 A custom of the banker, not communicated to the customer, or an unrestricted indorsement, or leave to draw against the bills, will not rebut the presumption that the property remained in the remitter.3

If the customer has drawn against the paper, the banker has a lien for the amount, to which, of course, his assignees succeed. But this lien is only a security, and if the banker compounds with the debtor, the customer may redeem by paying the amount of the composition. 5

§ 332. Attachments. The right which a plaintiff acquires by attachment of a defendant's property is a lien, and is preserved as against the assignees, unless the statute expressly provides for its dissolution. This was denied by Mr. Justice Story, who, having drafted the bankrupt law of 1841, found its operation much impeded in his circuit of New England, where the law of attachment is extremely liberal and is availed of in all important cases. This learned jurist held that attachments were not exactly liens, but were dependent upon the recovery of judgment, and that he would enjoin the action. His doc

& De G. 103; Jombart v. Woollett, 2 Mylne & C. 389; Ex parte Barkworth, 2 De G. & J. 194; Ex parte Bond, 1 Mont. D. & De G. 10; Ex parte Sollers, 18 Ves. 229; Ex parte Pease, 19 Ves. 25; s. c. 1 Rose, 232; Ex parte Rowton, 1 Rose, 15, 17 Ves. 426; Ex parte Benson, 1 Dea. & Ch. 435 (reversing s. c. nom. Ex parte Thompson, Mont. & MacA. 102); Ex parte Gomez, L. R. 10 Ch. 639; Scott v. Ocean Bank, 23 N. Y. 289; St. Louis, &c. R. R. Co. v. Johnston, 133 U. S. 566; First Nat. Bk. v. Armstrong, 42 Fed. Rep. 193; Peck v. First N. Bk., 43 Fed. Rep. 357; First Nat. Bk. v. First Nat. Bk. 76 Ind. 561; Manufacturers' Bk. v. Continental Bk. 148 Mass. 553; Jones v. Kilbreth, 49 Ohio St. 401.

explained in Ex parte Barkworth, 2 De G. & J. 194.

2 St. Louis, &c. R. R. Co. v. Armstrong, 133 U. S. 566.

3 See note 7, page 240.

4 Ex parte Leeds Bank, 1 Rose, 254, and cases cited in note. See Vail v. Durant, 7 Allen, 408.

5 Ex parte Gomez, L. R. 10 Ch. 639.

6 Ex parte Rocke, L. R. 6 Ch. 795; Slater v. Pinder, L. R. 6 Ex. 228; L. R. 7 Ex. 95; Emanuel v. Bridger, L. R. 9 Q. B. 286; Lowe v. Blakemore, L. R. 10 Q. B. 485; Ex parte Joselyne, 8 Ch. D. 327.

7 Ex parte Foster, 2 Story, 131, Fed. Cas. No. 4960; Fiske v. Hunt, 2 Story, 582, Fed. Cas. No. 4831; Ex

1 See Ex parte Sargeant, 1 Rose, 153, parte Cook, 2 Story, 376, Fed. Cas.