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in equity. Casserlev v. Witherbee (1890) 119 N. Y. 522. Here may be noticed also the familiar principle that the mortgagor, or his successor in interest, the second mortgagee, has the right, as a cestui, to look to the senior mortgagee, so situated, as a constructive trustee of any surplus,-clearly but a right in personam, cognizable only on the equitable side of the court. Without more, it should be perfectly obvious that the mere equitable title of the mortgagor, after default and possession under the first mortgage, is not sufficient to support an action at law for the conversion of the property. Ring v. Neale (1873) 114 Mass. III. If there is no right to possession in the mortgagor after default it must follow that there can be none in the successor to his rights. Unless, then, he acquires some of the rights of the first mortgagee it would seem that the second mortgagee has no right to possession on which to base an action for conversion. Rugg v. Barnes (1849) 2 Cush. 591; Clapp v. Glidden (1855) 39 Me. 448. This principle has been recognized in New York. Moore v. Prentiss Tool & Supply Co. (1892) 133 N. Y. 144. Of course if the second mortgagee is actually in possession he may maintain trover against an officer who, before the title of the first mortgagee becomes absolute, attaches and sells the goods mortgaged, Treat v. Gilmore (1860) 49 Me. 34 ; Gardner v. Morrison (1847) 12 Ala. 547 ; the second mortgagee having the same rights that the mortgagor would have in a like case. The same rule has been properly applied where, after the law-day, the second mortgagee takes possession before the first. White v. Webb (1842) 15 Conn. 302.

The Appellate Division, First Department, of the New York Supreme Court has recently made a very questionable application of the foregoing principles. Columbia Bank v. American Surety Co. (N. Y. 1903) 84 App. Div. 487. After default the second mortgagee attempted to add to his rights by assuming to come into an anomalous joint possession with the first mortgagee who was already in possession. It was held that he could bring trover against the attaching creditor for whom the sheriff had acted in taking the property in attachment proceedings. As has been seen he had no right to possession on which to base his action. Nor would he seem to have acquired any de facto possession sufficient to rest it upon. He did not assume to come into a joint possession under a joint title with the other mortgagee nor did he attempt to acquire a possession adverse to that of the first mortgagee but instead seems to have recognized the rights of his senior. Nor did the first mortgagee do anything to divest himself of the possession he had already acquired. The sort of possession claimed by the second mortgagee seems, then, to be one not known to the law, certainly it is not such as has hitherto furnished the basis for an action of conversion. On the whole, it would seem that the correct way of working out the rights of the second mortgagee is by making the first mortgagee a constructive trustee of the residue after the satisfaction of his claim. The fact that the first mortgagee has already recovered a judgment in trover for the amount of his lien should

make no difference in the result, as that judgment has not been satisfied and the legal title has not passed to the converter ; but if it had passed, it would still be impressed with the trust in favor of the second mortgagee, whose action in personam would then be against the sheriff on the equity side of the court. The proper disposition of the case is suggested by Laughlin, J., dissenting.

When B, repre

IMPERFECT IDENTIFICATION OF VENDEE, INDORSEE OR CONSIGNEE. There is in several branches of the law a situation created by fraud in which uncertainty exists as to whether an ostensible party to a transaction was intended to be such by the actor. senting himself as C, obtains from A the sale of chattels, or the indorsement of a draft, or the shipment of goods by carrier, does he thereby get title, or become the indorsee, or the consignee so as to protect an innocent third party to whom he transfers the goods, or the bank that pays him the draft, or the carrier that delivers the goods to him? Each case supposed involves the analysis of intention with a

view to determining substantially the same question, viz. what person has the actor singled out to receive the benefit of a legal disposition he has made or purported to make. Parity of reason dictates that there should be uniformity of decision upon the point in all three branches of the law. Where the transaction is inter præsentes and the impostor acts in his own right and not as agent for another it is almost universally held that he has succeeded in obtaining rights through the transaction under which innocent third parties will be protected. Robertson v. Coleman (1886) 141 Mass. 231., Land Tille and Trust Co. v. N. W. National Bank (1900) 196 Pa. 230., Dunbar v. Boston etc. R. R. Co. (1876) 110 Mass. 26.; Tollman v. American Nat. Bk. (1901) 52 L. R. A. 877, contra. In such a situation it may fairly be argued that the vendee, payee, or consignee intended by the plaintiff, in any other than a highly metaphysical sense, was the person before him, objectively identified as such. By his actual physical presence B has substituted himself effectively for the abstract personality in A's mind.

When the party misrepresenting himself negotiates from a distance, however, a more intricate question is raised. If he communicates by letter in the name of an actual person known to the plaintiff, and the plaintiff, as a result sends a check, is the check intended for the known party or for the impostor who wrote the letter? This question was squarely before the Nebraska court in the recent case of Hoffman v. American Exchange Bank (1903) 96 N. W. 112. An executor making final distribution of an estate advertised for a certain legatee, C, of whose whereabouts he was ignorant, desiring to remit a balance due him. He had previously made two payments to C, one by mail and one in person. Receiving from an impostor a letter purporting to come from C, the plaintiff sent a draft indorsed specially to C, to the address given. The Court, improperly it seems, refused to allow him to recover from the bank

which paid the draft to the impostor. In negotiations inter absentes there is obviously not that complete identification of the other party which exists where the impostor appears in person.

Here the vendor, indorser, or consignor may often intend to deal with a person identified in his mind, partly by attributes of the man personated, partly by attributes of the impostor. For example in the principal case the plaintiff may have identified the person to whom he intended to indorse partly by attributes of the real legatee, partly by attributes of the man from whom he received the letter and address. To the validity of a disposition to an impostor it would seem necessary that he must show that the attribute which was the determining factor of identification was one that applied to him exclusively. If there is a conflict, attributes of each furnishing substantial factors of identification, or if the determining attribute is one of the man he is personating, the impostor must fail, B has not succeeded in substituting his own personality for that of C in the mind of A and consequently cannot be said to have been selected as vendee, indorsee, or consignee. Where, as in the principal case, the actor had actually met the man personated it would seem that nothing short of the actual presence of the impostor should be allowed to effect such a substitution. Certainly his mere handwriting should not be held to effect it. And this is generally held to be the law. American Express Co. v. Stack (1867) 29 Ind. 27; Cundy v. Lindsay (1878) L. R. 3 A. C. 459. The difficult problems arise where the vendor, indorser, or consignor has no personal acquaintance with either the man personated or the impostor. It would seem that they should be solved by the application of the principles stated above.

EQUITY JURISDICTION OVER THE ASSIGNMENT OF CHOSES IN Action.-Reflecting primitive social conditions, the Common Law found no necessity for affording a means of transferring rights and obligations arising out of a claim in personam.Increasing complexity of commercial ties, however, involved finding a means of assigning such rights. Singularly enough, the English courts, apparently independently, adopted to this end the device of the Roman Law, the letter of attorney. The prosecution of a civil action through an agent was already familiar. To give a third party an interest in a chose in action such as he could have acquired had the same been assignable, was to a great extent accomplished by appointing him an agent with power to collect the claim for his own use. By the middle of the thirteenth century, we find assignments by power of attorney recognized in the English courts of law. 2 Pollock and Maitland, History of Engl. Law, 226–7. The interest of the creditor-agent, being entirely dependent upon the will of his pseudo-principal was, however, liable at any moment to be defeated by the latter's interposition. Resort appears to have been had, in such a case, to the courts of chancery to protect the “assignee.” i Harvard Law Review 6, 7. The early development of equity jurisdiction over assignments is obscure, but it was ultimately well defined as auxiliary to that of the courts of law. As a payment to or release by the assignor was a valid defense to an action at law in his name by the assignee, equity interfered to give the latter a remedy in such a case against the debtor, after notice. As the procedure at law forbade giving a power of attorney for less than the whole claim assigned, equity permitted the assignee to make good his interest in this instance, too, by a suit in his own name, Lett v. Morris (1831) 4 Sim. 607. With these two exceptions the jurisdiction of equity was from the first refused where the remedy of the assignee at law in the name of his assignor was adequate. Hammond v. Messenger (1838) 9 Sim. 327.

In time the equitable doctrine of notice was taken over and applied in courts of law. Legh v. Legh (1799) 1 B. & P. 447, and the reformed procedure has permitted the assignee to sue at law in his own name.

The development above outlined went on without any judicial definition of the nature of the assignee's control over the claim. The early conception of the assignee as a mere agent had given way to one regarding him as having a distinct interest, the incidents of which were clearly defined but whose nature was uncertain. It differed from a mere agency to collect in that equity would not recognize a revocation after notice to the debtor. Nor was it a property interest, because it had to be enforced in the name of the assignor. While the courts do not seem to have so conceived it, the incidents of the assignee's right are those resulting from an agency with a collateral agreement by the assignor not to revoke. If the irrevocability of the right rested merely in contract it would follow that the assignor might revoke and thereby shut off any right of the assignee against the debtor leaving his only remedy against the assignor. And such in law was the effect of a release or payment by the assignor. But equity in the exercise of its jurisdiction over the negative covenant of the assignor could restrain him from breaking it and refuse to allow the debtor, after notice, to set up a revocation, release or payment as a defense to an action by the assignee. Much of the uncertainty with reference to the assignee's right has arisen by reason of the failure of the courts and text-writers to distinguish between this so-called “power coupled with an interest” and the true power coupled with an interest as recognized by the law of property. i Tiffany, Law of Real Property, pp. 614-5. The latter is a true right in rem, irrevocable in its very nature; the former as above indicated is irrevocable only by reason of the jurisdiction exercised by courts of equity. i Harvard Law Review, 7. It is essentially an agency which the principal by the terms of its creation may not revoke, and which upon notice becomes irrevocable as to the debtor.

The function of notice being simply to protect the assignee from collusion between the assignor and the debtor, it is in no way essential to the creation of the assignment itself. The failure to recognize this fundamental principle has led to the erroneous holding in some jurisdictions that notice is necessary to perfect the assignment and that the priority as between successive assignees

depends upon the order in which they give notice to the holder of the fund. Dearle v. Hall (1828) 3 Russell 48; Spain v. Hamilton's Adm'r (1863) 1 Wall. 604. The difficulty resulting from this holding is illustrated by two recent cases in the Supreme Court of Pennsylvania. The first, Appeal of Moses (Pa. 1903) 55 Atl. 213, following Dearle v. Hall, supra, held that a second assignee upon giving notice to the debtor, acquired priority over a former assignee, who had failed to give notice. Since neither the assignor nor the second assignee had reduced the chose in action to possession, there was no question of collusion between the debtor and the assignor, or his representatives, and, therefore, failure of the first assignee to give notice was immaterial, and the priority of the assignments should have been simply a question of the order in which they were executed. Tingle v. Fisher (1882) 20 W. Va. 497. In the second case, Appeal of Trust Co. (Pa. 1903) 55 Atl. 216, between two consecutive assignees, the second only of whom gave notice, a creditor of the assignor had attached the fund, and the court held that the first assignee should be preferred and the second postponed to the attaching creditor, upon the theory that the attaching creditor acquired only the assignor's interest after the first assignment, and the second assignee only the residue after the attachment was satisfied. Since the attachment lien when perfected operated simply as an assignment, and since the claim had not been reduced to possession, notice, as was pointed out above, should here also be held immaterial, and therefore the decision is clearly sound and opposed to the result reached in the first case.

As to the second branch of equity jurisdiction over assignments, the cases of partial assignments generally present this situation : an order given by a debtor to his creditor upon a third person to pay out of a particular fund due or to become due to the debtor. Yeates v. Groves (1791) 1 Ves. Jr. 280 ; Brice v. Bannister (1878) L. R. 3 Q. B. D. 569 If a consent by the debtor could be found there was no ground for Equity jurisdiction for the remedy at law was adequate, the assignee suing in his own name on a new promise, express or implied. Walker v. Rostron (1842) 9 M. & W. 411. Both these cases are to be distinguished from that of a bill of exchange drawn generally on the credit of the drawer.

Brill v. Tuttle (1880) 81 N. Y. 454. Such an assignment may be made by parol agreement, Risley v. The Bank (1881) 83 N. Y. 318; or by drawing a check on the special fund, Fortier v. Delegardo & Co. (C. C. A. 5th Cir. 1903) 122 Fed. 604; or by mailing a letter containing an order on the holder of the fund, Burn v. Carvalho (1839) 4 M. & C. 690; or, by a mere notice mailed to the assignee that the assignor has directed his debtor to pay over part of a fund, Alexander v. Steinhardt, Walker & Co. (1903) 2 K. B. 208. In the last two cases the assignment was held good on the mailing of the letter, the assignor having become bankrupt after the mailing, but before the receipt by the assignee. It would seem, then, that equity “examines the conscience,” giving effect to the intention of the assignor to make a valid assignment, and not to the form or method which he has adopted to perfect that intention.

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