1 See Hammond v. Messenger, 9 Sim. 327, in which the subject is fully examined by Shadwell, V. C.; Ontario Bank v. Mumford, 2 Barb. Ch. 596
2 2 Story, Eq. Jur. § 1057; Ex parte South, 3 Swanst. 393; Lett v. Morris, 4 Sim. 607; Smith v. Everett, 4 Bro. C. C. 64; Tiernan v. Jackson, 5 Peters, 598; Townsend v. Carpenter, 11 Ohio, 21.
3 Hartley v. Tapley, 2 Gray, 565; Field v. Mayor, etc, of New York, 2 Seld. 179; Lett v. Morris, 4 Sim. 607; Emery v. Lawrence, 8 Cush. 151; ment of freight to be earned in future, or an order to pay over the amount which is to be the compensation for future work
Commercial Bank v. Colt, 15 Barb. 506; Stocks v. Dobson, 4-De G. M. & G. 11; 19 Eng. Law & Eq. 97. Mr. Justice Story, in Mitchell v. Winslow, 2 Story, 638, thus states the rule: "It may be admitted to be true, what, indeed, seems to be the result of the authorities cited at the bar, as well as of others equally entitled to respect, that to make a grant or assignment valid at law, the thing, which is the subject of it, must have an existence, actual or potential, at the time of such grant or assignment; and that a mere possibility is not assignable; although, perhaps the doctrine may require some qualifications under special circumstances, as, for example, in cases of the assignment of freight in the course of earning at the time of the assignment, as is shown in the case of Leslie v. Guthrie (1 Bing. N. C. 697, 708, 709). But this admission will carry us but a very little way in the present case. For here the true question is, not whether the assignment of the property to be acquired in futuro is good at law, but whether it is good in equity; for if it be, then, independently of any fraud (which is not pretended), as the assignee can take only what the bankrupt had a title to, subject to all equities, it follows, as a matter of course, that the petitioner (the assignee) has no claim on which he can found himself for relief under his petition. So that the question is, in reality, narrowed down to the mere consideration of this, whether the present mortgage as to the future machinery, tools, and stock in trade, to be put into the factory (for there is no controversy as to those in esse at the time of the assignment) is valid or not against the mortgagor.
"Upon the best consideration which I am able to give the subject I think it is good and valid. Courts of equity do not, like courts of law, confine themselves to the giving of effect to assignments of rights and interests, which are absolutely fixed and in esse. On the contrary, they support assignments, not only of choses in action, but of contingent interests and expectancies, and also of things which have no present actual or potential existence, but rest in mere possibility only. In respect to the latter, it is true that the assignment can have no positive operation to transfer, in pre-senti, property in things not in esse; but it operates by way of present contract, to take effect and attach to the things assigned, when and as soon as they come in esse; and it may be enforced as such a contract in rem, in equity. Lord Hardwicke, in Wright v. Wright (1 Ves. 409, 411), expressly recognized this doctrine, and said, that an assignment of a contingent interest or possibility of an inheritance was equally allowable with an assignment of a possibility of a personal thing or chattel real. And he added, 'An assignment always operates by way of agreement or contract, amounting, in the consideration of this court, to this, that one agrees with another to transfer, and make good that right or interest, which is made good here by way of agreement.1 In the very case then before him, he admitted that the assignor had no immediate claim or demand, but a mere possibility in and labor to be done, or materials to be furnished, will be enforced in equity.1 So, also, an assignment may be made of a the property assigned, and that it was well assigned by the word * claim,' which well described it, in presenti and in futuro. He also relied on the case of Beckley v. Newland (2 P. Wms. 182), which, he said, was an agreement on marriage to settle all such lands as came to the party by descent or otherwise from his father; and it was carried into effect by the court, notwithstanding an expectancy of an heir at law is less than a possibility ; and Hobson v. Trevor (2 P. Wms. 191) was fully to the same effect. The case of Beckley v. Newland (2 P. Wms. 182) was not exactly as stated by Lord Hardwicke. But it was an agreement between two survivors, who had married two sisters, to divide equally between them whatever should be left to them by the father of their wives. But the principle was the same. The case of Hobson v. Trevor (2 P. Wms. 191) was that probably in Lord Hardwicke's mind. See also 2 Story, Eq. Jur. § 1040 b and note. In Carleton v. Leighton (3 Meriv. 667), Lord Eldon is said to have held, that the expectancy of an heir, presumptive or apparent, was not an interest or possibility, nor was capable of being made the subject of assignment or contract. But there is some reason to doubt the accuracy of the language as to assignment or contract; for he is reported immediately to have added that the cases cited (referring to the cases of Beckley v. New-land, and Hobson v. Trevor) were cases of covenant to settle or assign property, which should fall to the covenantor; where the interest, which passed by the covenant, was not an interest in the land, but a right under the contract. This is strictly true, but still the contract was obligatory and sufficient to enforce a specific performance thereof. In the case of Carleton v. Leighton, the sole question was, whether the mere expectancy of an heir, who became bankrupt, passed by the assignment of the commissioners. Lord Eldon held that it did not; for it was not an interest or even a possibility in the land. It seems clear that the language of Lord Eldon ought to receive some modification from other language used by him on other occasions. Thus, in Lord Dursley v. Fitzhardinge (6 Ves. 260, 261), he expressly admitted that an heir or the next of kin might enter into contracts with respect to their expectations and possibilities, the evidence upon which they might perpetuate; for the law would frame an interest in respect of the contract. Again, In re The Ship Warre (8 Price, 269, note), in reference to the doctrine of Lord Ellenborough in Robinson v. Macdonnell (5 M. & S. 228), Lord Eldon said, that he should find it extremely difficult to say, that the freight of a future voyage might not become the subject of an equitable agreement, as well as a first intended non-existing voyage, if the effect of the assignment were not to separate the freight and earnings for ever from the ship itself, but only to separate it for the temporary purpose of securing a debt, and operating only upon that separation of title till whale-ship by way of mortgage, and of all oil, head-matter, and other cargo which may be caught and brought home on a that debt should be paid. Again, in Curtis v. Auber (1 Jac. & Walk. 526, 531), where an assignment was made of the present and future earnings of a ship, Lord Eldon supported it, and said: ' In one case I think it was held, that although you might assign the wool then growing on the backs of the sheep, you could not assign the future fleeces. But still it was a good equitable assignment, and rendered the future earnings liable in equity.'