2. What is the ground of equitable jurisdiction, in reference to assignments?

The interest of an assignee being equitable, he had, originally, no remedy at law, and could, therefore, sue the debtor at once, in Equity. The doctrine has been recently advanced, in England, that unless the assignee is prevented from using the name of the assignor, in a suit at law, he cannot be permitted to resort to an Equitable forum, to enforce his claim. The practice which prevails in this country, is entirely different; and in conformity with the general principle, that the cestui que trust may sue third persons in a Court of Equity, upon his equitable title, without any reference to the existence of a legal title in his trustee, which may be enforced at law.' Where the assignment is for the benefit of creditors, it is peculiarly within the province of Equity, to enforce the trust, from its capacity, to compel a discovery, to take an account, and to bring together all parties in interest, marshal the funds, and when necessary, direct a sale of the property.

3. What may be the subject of an assignment in Equity?2

an assignment of that part, or give a lien as against the drawee, unless he consents to the appropriation, by an acceptance of the draft. The reason of this principle is plain. A creditor shall not be permitted to split up a single cause of action, into many actions, without the assent of his debtor, since it may subject him to embarrassments and responsibilities, not contemplated in his original contract. He has a right to stand upon the singleness of the original undertaking, and to decline any legal or equitable assignments, by which it may be broker into fragments; 5th Wheat., 277; 20th Pick., 15.

1 An assignee of a chose in action, must pursue his remedies in the same tribunals, in which the assignor, had no assignment been made, was bound to seek them. When obstacles growing out of the assignment, are so interposed, as to obstruct, or delay the successful prosecution of his remedies at law, then will a Court of Equity extend to him, that equitable protection, which his exigencies demand; 7th Gill and J., 114. See also, 4th Rand. R., 492.

2 A person cannot, by any voluntary act, transfer to another, a right which he does not himself possess. And where an insolvent debtor, has made a fraudulent transfer of his property, or has discharged his own debtor from liability, for the purpose of defrauding his creditors, so

X

Courts of Equity will give effect to all assignments of choses in action, trusts, and contingent interests, whether in real or personal estate. Even the naked expectancy of an heir, to his ancestor's estate, may be the subject of an assignment. So, freight to be earned in future, may be assigned. But no assignment will be upheld, which savours of maintenance or champerty. Thus, an agreement between two persons, that one should maintain a suit of the other, for a portion of the recovery, will be void. So, a naked right to overset a legal instrument, or to bring an action for a tort, cannot be assigned.2 Where a valuable consideration has passed, and a party is put in possession of that which he might acquire without litigation, Courts of Equity will allow the assignee to stand in the shoes of the assignor. But a mere right to litigate, cannot be the subject of assignment, either at law, or in Equity. A party however, may purchase the whole or a part of the interest of another, in a contract, or claim in litigation, provided he does not undertake to pay any costs or make any advances beyond the mere support of the exclusive interest which he has so acquired.3 Courts of Equity will not uphold an assignment, where the contract is inconsistent with public policy, or void, or illegal; such,

that he cannot reclaim the property, or sustain a suit for it, his own assignee, under a subsequent voluntary assignment, can have no greater right. This seems to be inconsistent with the decision in 4th J. C. R., 450. But in that case, the point was not fully considered, nor the distinction adverted to, between a voluntary assignment, by the fraudulent grantor himself, and an assignment by operation of law, under the bankrupt act; 18th Paige, 218; vide also, 7th Johns, R., 161; 6 Harr. & Johns., 61.

1 1 Freem. R., 181. In 3rd J. J. Marshall, 13, it was held, that a right to reclaim usury was assignable in Equity.

2 Mere personal torts, which die with the party, and do not survive, to his personal representatives, are incapable of passing by assignment; 1 Peters, 213.

3 3rd Sumn., 476. There is also a very learned note on this subject, by Mr. Sumner, in 3rd Vesey, 494.

for an example, as the assignment by an officer, of his commission, or of an honorary pension.'

4. How do Courts of Equity regard assignments by an insolvent debtor for the benefit of his creditors?"

A conveyance in trust to pay debt, is valid, andfounded upon a valuable consideration. The right to make such a conveyance results from the absolute control which every man claims over that which is his own. So, a debtor in failing circumstances, may not only dispose of his property for the benefit of his creditors, but he may prefer one to another, and assign property in trust to pay particular debts. Such assignments are revocable by the grantor, except as to creditors who have as. sented to the trust, and given notice thereof to the assignee. It is not necessary that creditors should become technical parties to an assignment, in order to obtain the benefit of it. Their

1 A future voluntary donation, or bounty from a government, is not property, and cannot be assigned in advance. If a man has his house or goods destroyed by fire, he cannot dispose, in advance of the contributions which he may receive from public charity. A mere jus precarium, a right resting in courtesy, is no more a matter of bargain, than the virtue from which it emanates. 4th Hill's N. Y. R., 642; 1 Peters, $193.

2. Where an express trust is created for the benefit of creditors, without an authority to the trustee to give a preference to any, it is both at law and in equity, a trust for each of the creditors rateably. 3rd Paige's R., 517.

3 The law tolerates voluntary assignments, giving preferences, and permits the insolvent debtor to select his own assignees; but it requires that they should be competent, and of sufficient character and pecuniary responsibility, to insure the execution of the trust, for the benefit of those interested. And where the debtor selects for his assignees, three relatives, one of whom is incapacitated by his residence, another by his blindness, and a third by his want of education, from executing the assignment, it is evidence of an intent on the part of the assignor to keep the property in his own hands, or to appropriate it for his own benefit. 1 Sand. R., 251; 8th Paiges, R., 417.

assent will be presumed, unless there is some stipulation in the deed requiring their concurrence.1

1 If the assignment be directly to the creditors, their assent must be shown, but if to trustees, for their benefit, the legal title passes to the trustees without their assent; but it must be made with the knowledge and privity of their trustees, or their creditors. The assent of the trustees is presumed, until the contrary be shown, and if the assignment be made without their knowledge, they may, when it comes to their knowledge, affirm it, and it will be binding. 10 Yerger, 146; 4 Johns, Ch., Rep., 529; 2 Gall. Rep, 557; 9 B. & Cress, 300; 1 Vent., 128, 7 Wheaton, 556; 12 Johnson, 276; Kent's Comm., 2d vol., 533; vide also 8 Leigh, R., 272.

CHAPTER XXIX.

WILLS AND TESTAMENTS.

1. JURISDICTION OF EQUITY OVER TRUSTS, CREATED BY LAST WILL AND TESTAMENT.

2. HOW EXECUTOR SHOULD PROCEED, WHERE THE PERSONS INCLU

DED UNDER WORDS OF GENERAL DESCRIPTION ARE UNCER-
TAIN.

3. DOES THE POWER TO RAISE A SUM OF MONEY OUT OF THE RENTS AND PROFITS OF AN ESTATE, AUTHORISE A SALE.'

4. PRINCIPLES OF CONSTRUCTION APPLIED BY COURTS OF EQUITY, TO BEQUESTS OF PERSONALTY,

5. WHEN COURTS OF EQUITY WILL RAISE AN IMPLIED TRUST ON RECOMMENDATORY WORDS OF A TESTATOR.

1. What are the grounds of equitable jurisdiction over trusts, created by last will and testament?

Trusts are frequently created by last wills and testaments; and are sometimes raised by legal construction, in the absence of any express declaration of the testator. These trusts fall within the exclusive jurisdiction of Equity; for Courts of Common Law, not only decline to enforce them, but even refuse to construe a will, so far as it regards mere trusts. When a trustee dies, or refuses to act, or where the will has appointed no trustee, or where it is doubtful, whether a power given to two or