(Observa tions.) The circumstance that choses in action are not transferable at law, renders the assignment of them very insecure; for, as the courts of law will not recognise the title or rights of the assignee, who, by the assignment, becomes merely a cestui que trust,* any payments made to the assignor, or any release executed by him, even although he may have bound himself by a covenant not to release, and, in short, any circumstance which would affect the rights of the assignor, in case he had not made the assignment, would at law be equally operative, notwithstanding his having parted with the beneficial interest. This subject is noticed in speaking of the transfer of mortgages; and the same observations that are there made are equally applicable here. Courts of equity, however, have stepped in to remedy this evil as far as possible; for though they have decided that the assignee of a chose in action takes it liable to all the equities to which it was subject in the hands of the assignor, yet they enable him to protect himself against the acts of the assignor subsequent to the assignment, by determining that where notice of the assignment has been given to the party liable to pay or render the chose or chattel, they will prevent him availing himself of any payments made to the assignor after such notice, and, notwithstanding such payments, will compel him to pay the same over again to the assignee, nor will they allow him to take advantage of a release," or any other circumstance that may have affected the legal rights subsequent to such notice. m A person, therefore, taking an assignment of a chose in action, should not only take a covenant from the assignor, that his right to the debt or chattel is * Shack v. Anthony, 1 M. and S. 572. 1 Coles v. Jones, 2 Vern. 392; Priddy v. Rose, 3 Meriv. 86; Bradwell v. Catchpole, 3 Swan. 78. m Gardner v. Lachlan, 8 Sim. 129. still a subsisting one, and that he will not release it or Observarevoke the power of attorney, which should always tions.) form part of such assignment, and which, if given for valuable consideration, is not revocable; but also give immediate notice of such assignment to the person from whom the debt or chattel may be receivable or recoverable. A mortgagee or assignee of shares in any company must give notice of his incumbrance or other interest to the secretary, if he would retain the benefit of it against subsequent purchasers for valuable consideration. It has been decided, that an assignment of a policy of insurance is invalid in case of bankruptcy, if notice had not been given to the insurers. Where the property intended to be assigned is in the hand of a trustee, the purchaser or mortgagor should, previous to the execution of the assignment, make inquiries from such trustee as to the incumbrances affecting the property. The answer of the trustee to such inquiries may be relied upon with confidence, for he will scarcely venture to make any fraudulent representations, since, if any loss should be thereby occasioned to the assignee, a court of equity would compel him to make it good. After the execution of the assignment, a notice thereof should also be given to the trustee, as in other cases. The necessity of these precautionary measures cannot be too much enforced, for, by neglecting them, subsequent incumbrances may gain a priority, and thereby postpone, if not entirely defeat, the rights of the negligent purchaser. Though courts of law do not so far recognise the rights of the assignee of the chose in action as to permit him to sue in his own name, yet, for some purposes, his interest is acknowledged by them; thus, in ques • Walsh v. Whitcombe, 2 Esp. Ca. 565. P Cumming v. Prescott, 2 Young and Col. 488. Williams v. Thorpe, 2 Sim. 257. Ex parte Colville, Mont. 110. 'Burrows v. Lock, 10 Ves. 470. (Observa tions.) tions under the bankrupt laws, they consider that the assignor is reduced by the assignment to a simple trustee, and hold that his interest does not pass to his assignees; and, in some instances, they have permitted a debt due from the assignee to be set off against his claim, when suing in the name of the assignor.t The rights of the debtor will not be affected by any act of the creditor or his assignee; the assignment, therefore, of a debt will not prevent the debtor availing himself, as against the assignee, of any legal defence, as the statute of limitations or the statute of frauds, which he may acquire independently of the acts of the vendor subsequent to the assignment. Simple contract debts, rents, interest on mortgages, &c., and arrears of dower, are barred after six years, whilst bonds or mortgage debts, or other sums charged on lands, and legacies, are presumed to be satisfied after twenty years ;" but in all cases payment of a part, or any interest, or a signed acknowledgment by the party or his agent, will prevent the operation of the statute, as in the case of simple contract debts under the old statute of limitations. It need scarcely be mentioned, that an exception to this rule of law against the assignment of choses in action exists in favour of merchants, in the cases of bills of exchange and promissory-notes, and that the bail-bond given to the sheriff, or an arrest on mesne process, and the bond given by the petitioning creditor in bankruptcy to the Lord Chancellor, are inroads which have been made by the legislature upon that rule. A man may assign those choses in action of his wife, to the immediate possession of which she is Winch v. Keeley, 1 T. R. 619; Howell v. MacIver, 4 T. R. 690. t Bottomley v. Brooke, Rudge v. Birch, cited in Winch v. Keeley. u 3d and 4th William IV. cap. 27, sec. 40, 41, and 42. entitled; but his assignment of her reversionary choses in action will not be valid as against her surviving, in the event of their not falling into possession during the coverture, even though she should have concurred in the assignment." It is rather difficult to gather from the decisions a principle upon which the courts of equity act in enforcing contracts for the purchase of choses in action, but they will, I think, justify the conclusion, that, as a general rule, these courts will leave the parties to their legal remedies, and not interfere to enforce specific performance of an agreement for the purchase of a chose in action, unless it is clearly shown that the damages which could be obtained in an action at law for the breach of the contract would be an insufficient remedy; but even then a very strong case must be made out to entitle a party to the aid of the court. The courts have refused to decree specific performance of agreements for the purchase of South Sea stock, York Buildings stock, and, in a case in Vesey, Lord Eldon declared, that it was perfectly settled, that the courts will not enforce the specific performance of an agreement for a transfer of stock, but they have, under certain circumstances, granted that relief in aid of a contract for Government stock and East India stock.c ▾ Duke of Chandos v. Talbot, 2 P. Williams, 608. ▾ Honner v. Morton, 3 Russ. 65; Purdew v. Jackson, 1 Stiffe v. Everett, 1 M. and Cr. 41. Russ. 1; Witley v. Cottle, 1 S. and S. 174; Colt v. Netterville, 2 P. Williams, 304; Adderley v. Dixon, 1 S. and S. 607. Capper v. Harris, Bunb. 135; Cud v. Rutter, 1 P. Williams, 570. Dorrison v. Westbrook, 5 Vin. 510, pl. 22. Doleret v. Rothschild. 1 S. and S. 590. Gardener v. Pullen, 2 Vern. 394. With respect to the purchase of a debt, see Adderley v. Dixon, 1 S. and S. 394; Wright v. Bell, 5 Price, 325. N Choses in action are liable to the process of sequestration, and, by the recent act of the 1st and 2d Vict. cap. 110, the sheriff, under the writ of fi. fa., is empowered to take them in execution, and sue in his own name upon such of them as may be checks, bills, or securities for money, and apply the money to be thereby raised in satisfaction of the judgmentcreditor's claims. d Wilson v. Metcalfe, 1 Bea. 263. |