"The law relied upon on the part of the bank, as stated by Lord Eldon in the case of Ex parte South, is to the following effect: ' If a creditor gives an order on his debtor to pay a sum in discharge of his debt, and that order is shown to the debtor, it binds him.' The same law is thus pronounced by Lord Cottenham, in the case of Burn v. Carvalho: ' In equity an order given by a debtor to his creditor, upon a third person having funds of the debtor, to pay the creditor out of such funds, is a binding, equitable assignment of so much of the fund.1
"Numerous cases were cited during the argument, but they all seem to me to be to the same legal effect, although they vary in circumstances. It will, however, be necessary to advert to those cases, so far as to show that they do not extend the principal beyond what it was enunciated by Lord Eldon and Lord Cottenham, in any way bearing upon the case.
"The law, as stated by those learned judges, was not disputed upon the
§ 468. Again, the assent of the debtor is not necessary in equity to give validity to the assignment,1 but it is proper that part of the defendants, who rested their defence upon the ground that the present case does not fall within that law.
" In Ex parte South, 3 Swanst. 392, the order was given by Jane Row to Alderson, her creditor, directed to the executor of a person indebted to Jane Row, and requiring the executor to pay the debt so owing to Jane Row to Alderson, her creditor.
"Lett v. Morris, 4 Sim. 607, was an order by a builder upon his customer and employer, directing such employer to pay the timber merchant the amount due to him for timber supplied for the work, out of the money which should become due to the builder in respect of the work he was doing.
"In Yeates v. Groves, 1 Ves. Jr. 280, Dawson sold certain premises to Groves & Dickenson, and he gave to Brown, his creditor, an order upon Groves & Dickenson, requiring them to pay Brown the amount due to him from Dawson, out of the purchase-money due from Groves & Dickenson to Dawson.
" Crowfoot v. Gurney, 2 Moo. & S. 473, was the common case of an order directed to a debtor, and adopted and acted upon by him, directing him to pay the amount due from him to a creditor of the party giving the order.
"The other cases cited, which differ somewhat in their circumstances, do not extend the principle of the quoted decision.
"The case of Burn v. Carvalho, 4 Myl. & Cr. 690, is before cited; the facts were very simple: Fortunato gave to Burn, his creditor, an order upon Rego, his agent, who then held goods or money of his, Fortunato, in his hands, directing Rego to pay Burn his debt. So far, the case was of the most ordinary kind; but although Burn forthwith sent the order out to Rego, yet before it reached Rego, at Bahia, Fortunato became bankrupt, and Fortu-nato's assignees insisted, that by reason that notice of the transaction had not reached Rego before the act of bankruptcy by Fortunato, the goods or funds remained in the order and disposition of Fortunato as apparent owner at the time of the act of bankruptcy, and that under the provisions of the bankrupt statutes, the creditors were entitled to the goods free from the lien. Lord Cottenham held that as Burn had sent out the order as soon as practicable, the goods could not be deemed after the order was sent, to remain with the consent of Burn, who in law had become the true owner, in the order and disposition of Fortunato as apparent owner. That was the only point of difference in the decision at law and by the Chancellor, and which point in no respects bears upon the present case.
" The counsel for the bank stated they mainly relied upon the case of notice of the assignment should be at once given to him, in order to save the rights of the assignee, in case of a bond fide
1 Ex parte South, 3 Swanst. 393 ; Spring v. So. Car. Ins. Co., 8 Wheat. 268-282; Bell v. London & North-Western Railway Co., 15 Beav. 548; 21 Eng. Law & Eq. 566.
Row v. Dawson, 1 Ves. 331. The case is not very distinctly reported, and therefore I have inspected the registrar's books, and it appears that the question in that case was, whether Tonson and Cowdery (two persons who had respectively made advances to Gibson), or the assignees of Gibson, were entitled to receive a certain sum of money then in the hands or under the control of Swinburne, the deputy-controller of the exchequer; and the rights of the parties depended upon the effect of an order given by Gibson before his bankruptcy to Tonson and Cowdrey, in consideration of present advances made by them. The order was in these terms: 'Out of the money due to me from Horace Walpole out of the exchequer, and what will be due at Michaelmas, pay to Tonson £400, and to Cowdery £200, value received.'The order was immediately lodged with the officer of the exchequer, Swinburne, but Gibson became bankrupt before the order was acted upon; and Gibson's assignees filed their bill, praying that the amount in Swinburne's hands might be paid to them, or if Tonson and Cowdery were entitled to priority, the residue might be paid to them. The Lord Chancellor held the document to be an assignment of the fund in the exchequer, of which the only practicable notice was given by service of the order upon the officer of the department, thus reducing the case to the ordinary position of an order upon a debtor or person having funds belonging to the giver of the order, requiring the debtor to pay the debt or fund to the creditor of such giver of the order. The illustrations adopted by the Lord Chancellor manifest that he deemed the case to be of the ordinary description I have mentioned. He says : ' Suppose an obligee receives the money on the bond, and writes on the back of it, "Whereas I have received the principal and interest from such an one, do you, the obligor, pay the money to him:" this is just that case.' If the case of the bond and the case before the court were identical, as the Lord Chancellor states, then the order, in both cases, was in substance directed to the debtor; and this case materially differs in the fact, that the order to Pinniger and Westmacott was not an order upon a debtor, or upon a person by whom the debt assigned would be paid; this is an essential difference in point of fact, and in the legal operation of the instrument. I do not discover that this case extends the principle upon which instruments of the nature of that under consideration have been held to operate as equitable assignments.