or towards discharge of the money due' under his mortgage (b).

Mercantile policies on goods, &c., usually called floating policies, are assignable by permission of the insurers in the same way as ordinary fire policies (c).

The above illustrations will sufficiently show the variety of interests which have been and still are the subject-matter of equitable assignments of choses in action.

In concluding this section, it may be well to note that all agreements and covenants receive their force from the capability of the parties to perform them, subject, of course, to the fact that the impossibility of one party only will not exempt him from personal liability; for, although it may liberate him from specifically performing, he may still be mulcted in damages for undertaking to do what he alone knew to be an impossibility (d). An agreement to do a thing in itself impossible, or beyond human power, is void in all cases (e). But a man may, otherwise, bind himself to do anything which is not in itself impossible or contrary to the law or public policy (f); and there is no legal or equitable distinction between a near and remote possibility. But there were some contracts which equity would not assist, as, for example, a bottomry-bond which carries an unreasonable interest (g), but would leave

(b) 44 & 45 Vict. c. 41, s. 23 (4); Elph. Introd. 154.

(c) Porter, 327.

(d) Thornborrow v. Whitacre, 2 Lord Raym. 1164.

(e) Co. Litt. 206a, note (1); Hargrave & Butler's edn.

(f) 1 Rolle's Abr. 419; 5 Viner, Abr. 110; Pothier, Traité des Obligations, partie 2, c. 3, art. 1, § 2, 204; Puff. b. 5, c. 7, § 6; Heinecc. J. N. & G. c. 14, 8. 398. See also Brian v. Acton, 5 Vin. Abr. 533, pl. 33; Earl Kingston v. Pierrepoint, 1 Vern. 5; Walker v. Gascoigne, 13 Vin.

Abr. 544, pl. 13; Durston v. Sandys, 1 Vern. 411; Hawkins v. Turner, Pre. Ch. 513; Taylor v. Bell, 2 Vern. 170; Watts v. Brooks, 3 Ves. Jun. 612; Knollys v. Houghton, July, 1805, Ch., cited in Fon blanque Eq., 5th ed. i. 236; Firebrass v. Brett, 2 Vern. 70.

(g) Dandy v. Turner, 1 Eq. Ca. Ab. 372, pl. 7; but see Park, Ins. 470 et seq.; see, also, Western v. Wildy, Skin. 59, 152; Williams v. Steadman, Holt's R. 126; Anon., 1 Eq. Ca. Ab. 372, pl. 5. 2 Ch. Ca. 130; Harman v. Vanhatton, 2 Vern. 717.

the holder to recover what he could at law. The like may be said as to a bond in common form for payment of money, but proved to be an agreement that the obligor should marry such-and-such a man, or should pay the money due on the bond (). And so a bond to procure marriage between certain persons is void; and equity will not only not enforce, but will give relief against such bonds (i). There is, also, the question of laches and indolence, the Courts of Equity presuming that, after a great length of time, some composition or release has been made; but this is subject to the usual exceptions, which are fully dealt with in the many able treatises upon equity jurisdiction.

The validity of assignments of choses in action being thus firmly established in equity gave rise to a distinct and important class of equitable interests. Choses in action, such as policies of insurance, and contingent interests and possibilities, came to be the subjects of settlement, and, indeed, of every kind of disposition of which a trust estate is capable.

It is very common in settlements to introduce a covenant on the part of the husband to effect a policy of insurance, and to assign it to trustees, so that the amount, when recovered, may be settled on the wife and issue of the marriage; and not infrequently the money to be recovered on a bond is settled in the same manner (j).

Finally, equity could never wholly disregard the law. "If the assignee were allowed to sue in equity and

(h) Key v. Bradshaw, 2 Vern. 102; Drury v. Hooke, 1 Vern. 412; Grisley v. Lother, Hob. 10; Hall v. Potter, 3 Lev. 411; Show. P. C. 76; Law v. Law, Eq. Ca. t. Talbot, 3rd ed. Williams, 140; Collins v. Blantern, 2 Wils. 347.

(i) Arundel v. Trevillian, 1 Ch. Rep. 47; Glanville v. Jennings, 3 Ch. Rep. 18; Toth. 27; Cole v. Gibson, 1 Ves. 503; Smith v.

Aykwell, 3 Atk. 566; see, also, Baker v. White, 2 Vern. 215; Woodhouse v. Shepley, 2 Atk. 535; Lowe v. Peers, 4 Burr. 2225; and lastly, see Mitchell v. Reynolds, 1 P. Wms. 181; Davis v. Mason, 5 Term. Rep. 118; 2 R. R. 562; Chesman v. Nainby, 1 Bro. P. C. [2nd ed.] 234; Harrison v. Gardner, 2 Maddock's Rep. 198; 17 R. R. 207. (j) Spence, 2 Eq. Jur. 855.

recover the debt behind the back of the assignor, the unfortunate debtor might be subjected to a second action at common law, and be compelled to pay the debt over again. If the assignor had given a power of attorney authorizing the assignee to sue for the debt in the name of the assignor, and that course was adopted, the judgment would bind the assignor (as it would stand in his name), and be a good discharge to the debtor at law as well as in equity. But if the assignee sued in his own name in equity, the decree in his favour would be no bar to an action by the assignor at common law. If the chose in action was of a purely equitable nature, this would not matter, as the assignor could never sue for it at law. But in all other cases the equity judges very properly required the assignee to bring the assignor before the Court, so that he should be bound by their decree. If he would not consent to join as a co-plaintiff with the assignee, he was made a defendant, but he had to be a party to the proceedings on one side or other of the record" (k).

Having illustrated the kinds of choses in action assignable in equity, we now proceed to consider what are the

Requisite Formalities of a Valid Assignment in Equity.

We do not here discuss the requisites as to capacity of the parties, or lawfulness of consideration, or the subject-matter assigned, or any such questions; but merely those requisites which must attend the actual formality of the transaction involved.

And fi st, as to the form or mode of assignment.

Gene ally speaking, no particular form is necessary (1), indeed, no form whatever, in many instances, is required. Whet one person agrees, for valuable consideration,

() 1 Ence. Asst. p. 354.

(1) Morrell. Wootten, 16 Beav. 197; Rodick v. Gandell, 1 De G. M. & G. 763, De Irving, 7 Ch. D. 419.

to assign to another his interest in certain specified property, either in existence or to come into existence, an equitable assignment is then and there effected (m). No writing is generally necessary ("), unless compliance with some statute, as the Statute of Frauds (o), or the Companies Acts, be required.

Any words which show a clear and definite intention of transferring or appropriating the chose in action to or for the use of the assignee for valuable consideration will be sufficient (p), and will create a valid charge upon the fund or other chose in action (1).

A writing in the following form, "For value received, I hereby sell, assign, transfer, and set over unto A. B. all my right, title, and interest in and to the balance due to me on sale of goods, &c. to C. D., in the sum of £ less a payment of £ , leaving due from C. D. to me the full sum of £ ," has been held, in America, to be an absolute assignment (). Again, A. owed B. on account, and B. owed C. on account, and desired further credit. The three agreed that what A. owed B. should be paid by him to C. on B.'s account. Held, that this was an oral assignment to C. of B.'s debt against A., with constructive delivery and sufficient consideration (s). Indeed, it has been held that acts merely, as the delivery of written evidence of a debt, may be sufficient to constitute an assignment of the debt itself (†); but that an agreement to pay a collector a certain part

(m) Field v. Megaw [1869], L. R. 4 C. P. 660; Rodick v. Gandell, supra; Percival v. Dunn, 29 Ch. D. 128; and see Row v. Dawson, 1 Ves. 331; Tibbitts v. George, 5 Ad. & El. 115.

(n) Gurnell v. Gardiner, 9 Jur. N. S. 1220; Riccard v. Prichard, 1 Kay & J. 277, 279; Field v. Megaw, L. R. 4 C. P. 660; Heath v. Hall, 4 Taunt. 328; 13 R. R.610; Tibbitts v. George, supra.

(0) Ex parte Hall, 10 Ch. D. 615; Re Richardson, 30 Ch. D.

396.

(p) Row v. Dawson, 1 Wh. & Tud. Eq. Ca. 107.

(2) Gorringe v. Irwell, 34 Ch. D. 134; Crowfoot v. Gurney, 9 Bing. 372; 35 R. R. 557; Smith v. Everett, 4 Bro. Ch. C. 64.

(r) Wallingford v. Burr, 17 Neb. 137.

(s) White v. Kilgore, 77 Me. 571; Ex parte Agra Bank [1868], L. R. 3 Ch. Ap. 555.

(t) Moury v. Todd, 12 Mass.

281.

of a sum for collecting it, is not an equitable assignment, and does not give the collector a right of action against the debtor (u).

"The mode or form is absolutely immaterial, provided the intention of the parties is clear" (v). An order given by A. to B. is addressed to C., who is indebted to A., or who holds money belonging to A., and the order directs C. to pay B. a definite portion of that specific debt or fund in his hands. This is a valid assignment of a portion of that debt or fund (w). If the order be by deed or for valuable consideration, it is immediately binding on A., and irrevocable (r). So, indorsing and delivering a bond to an assignee for valuable consideration amounts to an assignment of the bond (y). It is usual, and generally advisable, in assigning a chose in action, as a debt or bond, to do so by deed in proper form, with a power of attorney to sue in the name of the assignor. Such an order as above will also bind A.'s trustee in bankruptcy, and be good against any execution creditor of A. (z). But if there were no consideration for the assignment, or it was not under seal, it is competent for the assignor to revoke it any minute, although, until it be revoked, it is both valid and binding on A. and C., and any payment made thereunder by C. is a good payment as against A., and

(u) Plater v. Meag, 30 Fed. Rep. 308.

(v) Tailby v. Official Receiver [1888], 13 App. Ca. 543; see, also, Burn v. Carvalho [1839], 4 My. & C. 690; Malcolm v. Scott [1849], 3 Mac. & G. 29; Myers v. United, &c. Co. [1855], 7 De G. M. & G. 112; Chowne v. Bayiis [1862], 31 Beav. 351; Gurnell v. Gardner [1863], 4 Gif. 626, 630; Frith v. Forbes [1862], 4 De G. F. & J. 409; Ex parte Montagu [1876], 1 Ch. D. 554; Ranken v. Alfaro [1877], 5 Ch. D. 786; Re Irving [1877], 7 Ch. D. 419; Webb v. Smith [1885], 30 Ch. D.

192; Stephens v. Green, (1895) 2 Ch. 148; and 1 Wh. & Tud. 107, where the above cases are also cited.

(w) Burn v. Carvalho, 4 My. & C. 690; Brown v. Kough, 29 Ch. D. 848; Rodick v. Gandell, 1 De G. M. & G. 776.

(x) Fortescue v. Barnett [1834], 3 My. & K. 36; Bro. Abr. Choses.

(y) Row v. Dawson; Ryall v. Rowles, 1 Wh. & Tud. 93, 96; Townsend v. Windham, 2 Ves. 6; Ex parte Alderson, 1 Mad. 53; 15 R. R. 208.

(2) Gorringe v. Irwell [1886], 34 Ch. D. 128.