ATTORNEY. point M. W. of

gent. now about to fail for the said island of, my attorney, jointly with the faid C. L. for the purposes aforefaid; Now know ye that I, the faid R. I. have made, ordained, authorized, conftituted, and appointed, and by these presents do make, ordain, authorize, constitute, and appoint the said M. W. my true and lawful attorney, jointly with or separately from the faid C.L. for the intents and purposes, and with all and every the powers and authorities mentioned and contained in the faid deed-poll, or letter of attorney hereinbefore recited or referred to, hereby ratifying, confirming, and allowing all and whatsoever the faid M. W. fhall lawfully do or caufe to be done, jointly with or separately from the faid L. C. in and about the premises, under and by virtue of these presents, or of the said deed-poll, or letter of attorney hereinbefore recited or referred to, IN WITNESS, &c,

OF

ASSIGNMENTS.

IN offering fome few remarks relative to a deed of affignment, I fhall confider

I. The nature of this fpecies of Affurance.

II. What may be the subject of an Affignment.

III. The circumftances requifite to the validity of an Affignment.

IV. The effect and operation of an Affignment.

I. Of the Nature of an Assignment.

AN affignment, ftri&tly speaking, feems to be the of an affign transferring or making over fome estate or interest al- ment. ready in effe, from one perfon to another, in which fense it includes every fpecies of executed contract, which does not create a new estate. But in its more confined and technical fenfe, it is appropriated to the transfer of fome eftate, either in chattel or equitable property in which a third perfon, not a party to the affignment, has fome right or intereft. See 2 Blac. Com. 326. 1. Bac. Ab. 8vo. 248. It is, however, usually applied to an estate for life or

tween an un

derleafe and

Difference be- years. 2 Blac. Com. 326. and hence the true difference with respect to leafes, between an underleafe and an affignment, an affignment. appears to be not that which is usually given, namely, that the first is the parting with a less intereft than one's own, and an affignment of the whole of one's intereft, but that a lease is the grant of a diftinct eftate, de novo, whilft an affignment is the transfer of an old or exifting eftate. According to this definition of an affignment, the cafe in Stra. 405. holding, that an agreement between a leffee and B. that B. fhould hold the houfe, &c. for the remainder of his, the leffce's term, paying and performing to the leffee, the rents and covenants in the original leafe, was not an affignment, but an underleafe only, notwithstanding there was no reverfion left in the leffee, appears to be far more confonant with the genuine diftinction between them, than the later cafe of Palmer and Edwards, Dougl. 187, where Buller and Willes, (abfent Mansfield and Afshhurst) held, that every transfer of the whole intereft of the leffee, will be an affignment, even though the leffee referve rent, or introduce a new covenant into the deed; for in this cafe the estate which pafies from the leffee is evidently, as appears to the Editor, not the fame, but a diftinct and Separate intereft, though of the fame duration.

Affignee does not in all cafes

ftand in the fhoes of the affignor,

What may be affigned.

And where a perfon by affignment parts with his whole intereft, it is flated, in moft of our law treatifes in which the fubject of affignments is noticed, that "the affignee ftands, to all intents and purposes, in the place of the affigner." See 2 Blac. Com. 326. 2 Black. Rep. 326. 766. 1 Pow. Wood, 563, this, however, appears to be too hasty a conclufion. And fee 5 Co. 16. 3 Bur. 1271. 1 Dougl. 174.

II. What may be the Subject of an Affignment.

As a deed of affignment, like every other fpecies of affurance is nothing elfe than an evidence or indication of a contract or agreement, it follows, that what ever hay be the fubject of an agreement, may also be the fubject of that fpecies of affurance which is calculated to transfer it to the bargainee, and e contra; hence the fubject of this fection has,

in a great measure, been anticipated by the remarks which have been made on the SUBJECT MATTER OF AGREEMENT, (ante vol. 1. p. 25), fome few obfervations are ftill, however, referrible more particularly to this head.

By the common law nothing could be affigned over to Chose in action. another but what was in the actual poffeffion of the affignee, "the wifdom and policy of the fages and founders of our law having provided, that no poffibility, right, title, or thing, in action, should be granted or affigned to ftrangers, left it should be the occafion of multiplying fuits and contentions." See 10 Co. 48, a. Co. Lit. 214. 1 Roll. Ab. 376, Skin. 6. 26.

This nicety is now, however, disregarded, and our courts of equity confidering, that, in a commercial country, almost all perfonal property muft neceffarily lie in contra&t, still protect the affignment of a chofe in action, as much as the law will that of a chofe in poffeffion (a), though, in compliance with the ancient principle, the form of affigning a chofe in action is in the nature of a declaration of truft, and an agreement to permit the affignee to make use of the name of the affignor, in order to recover the poffeffion (b), and therefore when in common, acceptation a bond is faid to be affigned over, it must still be fued in the name of the original creditor; the perfon to whom it is transferred being rather an attorney than an affignee (c); 2 Blac. Com. 30. 10. Co. 48, a. 3 P. Wms. 199.

(a) Another principle upon which courts of equity proceed in establishing affignments of chofes in action, whether with or without confideration, is that the affignment ought in juftice to the affignee, to be conftrued to be a covenant on the part of the affignor, that the affignee fhall thenceforth possess the thing affigned to his own ufe, which covenant or agreement the court will carry into specific execution.

(b) See obfervations of Mr. Juft. BULLER, on the affignment of chofes in action, in Mafier v. Miller, 4 Durn. and E. Rep. 320.

(c) See the diftinction between an affignee and an attorney> or deputy, Term de la Ley, title Affignee.

Perfonal interefts.

Annuity.

Bond.

and fee the cafes collected 1 Fonb. Eq. 203, which, though they incontrovertibly establish the principle that chofes in action, and interefts in contingency, are affignable, yet they feem alfo to fhow, that in the cafe of affignment of personal interefts, equity will, in general, require the affignee to prove that he gave a valuable confideration for the interest affigned, and will not, therefore, affift mere volunteers. Where, however, fuch affignments have been contefled as against executors, adminiftrators, or heirs at law, the courts have established them though not made for a valuable, but only for a good confideration, as natural love and affection. Beckley v. Newland, 2 P. Wms. 182. Hobfon v. Trevor, ib. 192. Wright v. Wright, 1 Vez. 409. (a) Delany v. Stoddart, 1 Durn. and E. Rep. 26; and fee Innes v. Dunlop, 8 Durn. and E. Rep. 595.

It was alfo formerly doubted whether an annuity was at law affignable, even though affigns were mentioned in the grant, the argument being, that it was a mere perfonal contract, and therefore a chofe in action; and though this objection appears in ftrictness to have fome weight, yet it was even in a court of law over-ruled. Hetl. 80, and fee 7 Co. 28 b, where it was fully refolved, that express words would make an annuity affignable. And as the principle of the objection is the fame whether affigns be mentioned or not, it feems to be now equally affignable though they be not mentioned. And fee Co. Lit. 8vo. 144 b. n, (1) Sed vide Perk. S. 101.

And as in equity a bond is affignable for a valuable confideration paid (b), and the affignee alone becomes entitled to the money, if the obligor after (c) notice of the affign

(a) In this cafe a distinction appears to have been taken between the affignment of a poffibility of inheritance and that of a chattel real, this diftinction has however been over ruled.

(b) There must be a confideration paid. 3 Chan. Rep. 90. (c) 2 Vern. 540. But payment to the obligee without notice of the aflignment, is good. Cha, Ca. 232.