"Several cases were cited, which do not appear to me to have any material bearing upon the case. Among them was Ex parte Scudamore, 3 Ves. 85. A power of attorney was given in pursuance of a previous agreement between Shepherd and a creditor. Shepherd granted a power of attorney to Williams, his former partner, to collect partnership debts, and upon trust to pay the creditor out of Shepherd's share. The money was received by the attorney; and the assignees of Shepherd, who had become bankrupt, disputed the right of the creditor to receive the money from the attorney, payment to the assignor, or subsequent assignee, without notice.1 So, also, in equity, the assignee may under some ciraccording to the trust. No question was discussed whether the trust in the power of attorney in favor of the creditor had the effect of assigning the debts to be collected; but the sole point in dispute was whether the trust in the power of attorney in favor of* the creditor was a fraudulent preference.
"In Fitzgerald v. Stewart, 2 Sim. 333; 2 Russ. & Myl. 457, the question was whether the defendants ought to be held trustees for the plaintiff of the proceeds of certain West India consignments as security for an annuity, and contains nothing applicable to the present case.
"In Gibson v. Minet, 9 Moore, 31, Gibson gave to Mintern, his creditor, an order upon Minet, his debtor, to hold £400 at the disposal of Mintern, the creditor; and the only point discussed in the case was whether the order under the circumstances was revocable.
"In Garrard v. Lord Lauderdale, 3 Sim. 1, the question was whether an assignment to A. to collect certain debts, and to pay the proceeds to B., who was no party to the transaction, was an assignment of which B. could entitle himself to the benefit; it was held that he could not.
"The decision in the case of Watson v. The Duke of Wellington, 1 Russ. & Myl. 602, does not appear to me to favor the plaintiff's case. The only point decided was that the letter given by the Marquis of Hastings to Colonel Doyle did not amount to a direction to pay, but was merely an intimation and suggestion, leaving Colonel Doyle the full exercise of his discretion. So far as the case can be deemed to have any bearing upon the present case, it is rather adverse than favorable to the bank.
"Ex parte Smith, 6 Ves. 447, has really no bearing upon this case. Hartsink accepted bills upon the security of platina, and the question was, if the agreement between the original parties to the bill enured to the benefit of the indorsees of the bills, Hartsink, the acceptor, having become bankrupt, not paying the bills; and it was held that the indorsees were not entitled to enforce the lien.
"I believe I have adverted to all the cases cited which can be considered as having any bearing upon the present case; and the extent of the principle to be deduced from them is, that an agreement between a debtor and a creditor that the debt owing shall be paid out of a specific fund coming to the debtor, or an order given by a debtor to his creditor upon a person owing money or holding funds belonging to the giver of the order, directing such person to pay such funds to the creditor, will create a valid equitable cumstances1 sue in his own name, and enforce payment directly against the debtor, making him as well as the assignor a party to the bill.2
1 Stocks v. Dobson, 4 De G. M. & G. 11; 19 Eng. Law & Eq. 96; Rodick v. Gandell, 1 De G. M. & G. 763; 15 Eng. Law & Eq. 31; Foster v. Black-stone, 1 Myl. & K. 297; Timson v. Ramsbottom, 2 Keen, 35; Ward v. Morrison, 25 Vt. 593; Meux v. Bell, 1 Hare, 73; 2 Story, Eq. Jur. § 1047, 1057; Williams v. Thorp, 2 Sim. 257; Jones v. Witter, 13 Mass. 304.
§ 469. Courts of equity will also support assignments not only of choses in action actually existing, but also of possibilities and expectancies and contingent rights and interest, not ordinarily assignable at law, provided the transaction be fair, and not contrary to public policy.3 For instance, an assigncharge upon such fund; in other words, will operate as an equitable assignment of the debts or fund to which the order refers. It therefore becomes necessary to examine whether the letters in question come within the principle referred to.
"I think that a decision, that the authority to Pinniger & Westmacott contained in the letter dated 26th December, 1845, to receive the debt due from the railway companies, and to pay what should be received to the bank, operated as an assignment in equity of the railway debts, would be to extend the principle much beyond the warrant of the authorities; and I also think that the effect of such a decision upon the interest of persons giving orders of the like description might be very injurious, and would be contrary to the intention of the parties to the transaction. If an assignment of the debts had been intended, it would have been quite as easy for Gandell & Brunton to have directed the order to the railway companies as to Pinniger & Westmacott. It rather seems to have been intended that the bank should have no title or interest in the debts until the amount of the debts should have been adjusted, and some definite portion been adjusted and realized.
"The letter clearly does not fall within the terms of the principle stated by either Lord Eldon or Lord Cottenham, inasmuch as the order was neither upon a debtor of Gandell & Brunton, nor upon any one holding funds of Gandell & Brunton, nor, as regarded Pinniger & Westmacott, was there any subject-matter upon which the order could presently attach. It was a mere authority to receive, which might or might not be acted upon; it was not directed to the railway companies, nor to any officer or representative of any of the companies, in any sense to make it available against the companies, who might have paid Gandell & Brunton, or any attorney or agent appointed by them, or have arranged for time to pay, or have compromised or compounded at their discretion."