notice of a bona fide assignment of the bond does not discharge the debt.20

Priority between assignments. The doctrine of some Courts is that when the person entitled to a fund makes two or more assignments of it to different parties, the assignee who first gives notice to the debtor or custodian of the fund is entitled to priority of payment over other assignments, although made earlier in time.21 But other Courts hold that the person to whom the assignment is first made is entitled to priority over a subsequent assignee who is the first to notify the debtor.22

In Equity; no formal writing is necessary in order to constitute a valid assignment of a fund.23 An assignment may be by parol.24 Any writing or act which clearly indicates that the assignor intends to make over a fund belonging to him, amounts in equity to an assignment.25 But there must be such an actual or constructive appropriation of the subject-matter as to confer a complete and present right on

20 Savage v. Gregg, 150 Ill. 161; Shriner v. Lanborn, 12 Md. 170. See also, Stine v. Young, 26 Md. 233; Canfield v. McIlvaine, 32 Md. 94. As to attachment laid in hands of debtor before or after assignment, see Williams v. Jones, 38 Md. 556; Brady v. State, 26 Md. 290; Wilson v. Carson, 12 Md. 54; Lawrence Bank v. Raney Co., 77 Md. 321.

The assignment is complete as between assignor and assignee when made and before notice to the debtor. And the death of the assignor of even a part of a fund does not revoke the authority of the debtor to pay the assignee. Raesser v. Nat. Ex. Bank, 112 Wis. 591.

21 Lambert v. Morgan, 110 Md. 1; Phillips' Estate, 205 Pa. 515; Houser v. Richardson, 90 Mo. App. 134; Graham Co. v. Pembroke, 124 Cal. 117; Copeland v. Manton, 22 Ohio, 401; Bank v. Ins. Co., 17 D. C. App. 113; Methuen v. Staten Island Co., 66 Fed. Rep. 113; Dearle v. Hall, 3 Russell, 1; Lloyd's Bank v. Pearson [1901]. 1 Ch. 865. See also, Judson v. Corcoran, 17 How. 612; Spain v. Hamilton's Admr., 1 Wall. 604; Laclede Bank v. Schuler, 120 U. S. 511.

22 Fortunato v. l'atten, 147 N. Y. 277; Sutherland v. Reeve, 151 III. 384; Thayer v. Daniels, 113 Mass. 129; Emley v. Perrine, 58 N. J. L. 472.

23 Owens v. Barroll, 88 Md. 204.

24 Crane v. Gough, 4 Md. 317.

25 Brokaw v. Brokaw, 41 N. J. Eq. 215.

the assignee, although the circumstances may not admit of its immediate exercise.26

Assignment of the whole of a fund. When an order is drawn for the whole of a particular fund, it amounts to an equitable assignment, and after notice to the drawee it binds the funds in his hands. 27

Assignment of part of a fund. At law, an assignment of part of a debt cannot be enforced against the debtor by the assignee unless the debtor assent to the same. compelled to pay an entire debt in parts.28

He cannot be

So a check on

a bank does not operate as an assignment pro tanto of the fund upon which it is drawn, until it is accepted, or certified to be good, by the bank holding the funds.29

But the rule in equity is different, and there the assignment of part of a fund or debt constitutes an equitable charge upon it which will be enforced against the debtor, or person holding the fund.30 To create such assignment and lien it is indispensable that there should be a distinct appropriation of the fund by the debtor, and an agreement that the creditor should be paid out of it.31

The rule of some Courts is that equity has jurisdiction of a bill to enforce the assignment of part of a fund.32 But the doctrine of other Courts is that such assignee of a part cannot maintain a bill in equity merely because he is unable to sue at law, in a case where a fund is not in a Court of

⚫ 26 Christmas v. Russell, 14 Wallace, 70; Dillon v. Barnard, 21 Wallace, 440.

27 Mandeville v. Welch, 5 Wheaton, 285; Gibson v. Finley, 4 Md. Ch. 75, note; Wilson v. Carson, 12 Md. 74; Savage v. Gregg, 150 Ill. 161.

28 Gibson v. Finley, 4 Md. Ch. 75, note; Carter v. Nichols, 58 Vt. 553.

29 Moses v. Franklin Bank, 34 Md. 580. But the rule in some States is different. Niblack v. Park Bank, 169 Ill. 517.

30 James v. City of Newton, 142 Mass. 366; Burnett v. Crandall, 63 Mo. 410.

31 Wright v. Ellison, 16 Wallace, 22; Pugh e. Porter, 112 U. S. 737. 32 Smith v. Bates Machine Co., 182 III. 166.

Equity for distribution or where there is no other ground for the interference of Equity."

Restriction on assignment. When the contract is made the parties may stipulate that it shall not be assigned generally, or shall not be assigned to a particular person.35

The assignee of a claim

§ 121. Rights of the Assignee. takes it subject to all the legal and equitable defences against it in the hands of the assignor at the time of the assignment.1 But the equities subject to which he takes are those of the debtor himself, and not equities of third parties against the assignor. When the assignee knows that his assignor bears a particular relation to the party from whom he acquires his title, he is affected with notice of the consequences of such relation.3

There are circumstances which may place the assignee in a better situation than the assignor. Whenever the former is induced to believe by the debtor that the claim assigned will be paid, he cannot afterwards set up as a defence a concealed equity existing between him and the assignor. Nor can the debtor purchase conditionally claims against the assignor for the purpose of using them as a set-off, or claims acquired after the assignment.5

When the acceptance of an order for the payment of a sum out of a particular fund is conditional, the assignee has no right of action unless the condition be performed." And

33 Hayward v. Andrews, 106 U. S. 672; Adair v. Winchester, 7 G. & J. 114, note (b); Skobis v. Ferge, 102 Wis. 122.

34 Mueller . N. W. University, 195 Ill. 263.

35 La Rue v. Groezinger, 84 Cal. 284. The right to object to the assignment may be waived. Staples v. Somerville, 176 Mass. 241. 1 Goldsborough v. Cradie, 28 Md. 478; Schafferman v. O'Brien, 28 Md. 565.

2 Ohio In. Co. v. Ross, 2 Md. Ch. 26; Timms v. Shannon, 19 Md 297.

3 Green v. Early, 39 Md. 224.

4 Kemp v. McPherson, 7 H. & J. 320; Johnson v. Ins. Co., 39 Md

999 200.

5 Fusting v. Sullivan, 51 Md. 489.

299

6 Gill v. Weller, 52 Md. S. Cf. Conselyea v. Blanchard, 103 N. Y

when the order has been accepted upon certain conditions, the debtor cannot give evidence of a contract, other than that referred to in the acceptance, between him and the assignor, and of which the assignee had no knowledge."

Liability of assignor. The assignor makes no implied warranty that the debt will be paid and has no greater liabil ity than the seller of chattels generally. Where defendant, the obligee in a single bill, assigned it for value to the plaintiff by an endorsement in blank not under seal, at the same time promising plaintiff to pay the same if the obligor did not, it was held that the assignment imposed no liability upon the defendant, and that his parol promise to guaranty the debt was void, because not in writing as required by the fourth section of the Statute of Frauds.9

§ 122. Assignment by Way of Subrogation. When a surety pays the debt of his principal to the creditor, he is subrogated to the rights and lien of the creditor against the principal debtor. Such payment operates as an assignment in equity of the debt and of the securities given for it. The debt is discharged as to the creditor but it is not extinguished as between the debtor and the surety. The right of the surety to be subrogated is not founded upon contract but upon principles of equity and natural justice. The creditor cannot refuse to assign the debt to the surety and his obligation to do so is enforceable in equity.1

When an executor pays to the creditors a greater amount of assets than he has received and the personal estate of the deceased is insufficient to pay his debts, the executor may be substituted in equity to the rights of the creditors against

7 Hunting v. Emmart, 55 Md. 265.

8 Robinson v. McNeill, 51 Ill. 225; Shirts v. Irons, 37 Ind. 98. See Burck v. Taylor, 152 U. S. 634.

9 Talbot v. Suit, 68 Md. 443. But when the seller of a claim against a third party guarantees that it will be paid, the promise is not within the Statute of Frauds. Little v. Edwards, 69 Md. 469.

1 Wallace v. Jones, 110 Md. 143; Bechervaise v. Lewis, L. R. 7 C. P. 377.

the real estate of the deceased. But an agent of a mortgagee, appointed to collect interest coupons, who voluntarily pays the interest instead of making collections, is not subregated to the rights of the mortgagee."

§ 123.

Assignment of Contracts. A contract other than one for the payment of money, such as a right to receive goods, may be assigned when it does not involve a relation of personal confidence.1 But when the contract is to sell goods on credit, the vendee cannot assign it so as to vest the assignee with a right to demand the goods and enjoy the credit, without the assent of the seller. In the case last cited the Court classified the principal instances in which a contract, other than the payment of money, could be assigned as follows:

(a) "Cases of agreements to sell and deliver goods for a fixed price, payable in cash on delivery, in which the owner would receive the price at the time of parting with his property, nothing further would remain to be done by the purchaser, and the rights of the seller could not be affected by the question whether the price was paid by the person with whom he originally contracted or by an assignee.

(b) Cases upon the question how far executors succeed to rights and liabilities under a contract of their testator.

(c) Cases of assignments by contractors for public works. in which the contracts and the statutes under which they were made, were held to permit all persons to bid for the contracts and to execute them through third persons.

2 Collinson v. Owens, 6 G. & J. 4.

3 Bennett v. Chandler, 199 Ill. 97. Cf. Baker v. Meloy, 95 Md. 1. 1 Francisco v. Smith, 143 N. Y. 488; Galey v. Mellen, 172 Pa. 443. But a contract of employment cannot be assigned. Globe, etc., Co. v. Jones, 129 Mich. 664. When a contract to manufacture goods involves personal confidence it cannot be assigned by the manufacturer. Schlesinger v. Forest Products Co., 78 N. J. L. 637; 30 L. R. A. (N. S.) 347. A contract for the sale of trees to be grown is assignable. Parsons v. Woodward, 22 N. J. L. 196.

2 Arkansas Smelting Co. v. Belden, 127 U. S. 379. See also, Delaware County v. Diehold Co., 133 U, S. 473.