Lord Eldon in Pulvertoft v. Pulvertoft, 18 Ves. 84; Ex parte Pye, 18 Ves. 140; Dennison v. Goehring, 7 Barr, 179; Nesmith v. Drum, 8 Watts & Serg. 10. Kekewich v. Manning was followed in Mayo v. Carrington, 19 Gratt. 124 (1869), an elaborate case on this subject.
1 Ibid.; Kennedy v. Ware, 1 Barr, 450.
2 Tibbits v. George, 5 Ad. & El. 115; 2 Story, Eq. Jur. § 1041; Stocks v. Dobson, 4 De G. M. & G. 11; 19 Eng. Law & Eq. 97; Meux v. Bell, 1 Hare, 73; Coolidge v. Ruggles, 15 Mass. 387; Usher v. D'Wolfe, 13 Mass. 290; Williams v. Everett, 14 East, 582; Yates v. Bell, 3 B. & Al. 643; De Bernales v. Fuller, 14 East, 590, note; Mandeville v. Welch, 5 Wheat. 277; Tiernan v. Jackson, 5 Peters, 597; Adams v. Claxton, 6 Ves. 231; Scott v. Porcher, 3 Meriv. 662; Jessel v. Williamsburgh Ins. Co., 3 Hill, 88; Gibson v. Cooke, 20 Pick. 17. See post, § 450.
3 Ibid.; Gibson v. Cooke, 20 Pick. 15; Robbins v. Bacon, 3 Greenl. 346; Mandeville v. Welch, 5 Wheat. 277. In Gibson v. Cooke, Mr. Justice Dewey says: "An order or draft for a part only of the liability or debt of the drawee does not, against his consent, amount to an assignment of any portion of the debt or liability, and does not authorize the institution of a suit in the name of the assignor for the whole or any part of the sum due from the debtor; and the reason of this rule is, that a debtor is not to have his responsibilities so far varied from the terms of his original contract as to subject him to distinct demands on the part of several persons, when his contract was one and entire." A check for a portion of the funds on which it is drawn is no assignment. Moses v. Franklin Bank, 34 Md. 574 (1871). And see Bullard v. Randall, 1 Gray, 605; Chapman v. White, 2 Seld. 412.
4 Gibson v. Cooke, 20 Pick. 17; Robbins v. Bacon, 3 Greenl. 346.
5 Fenner v. Meares, 2 W. Bl. 1269; Israel v. Douglas, 1 H. Bl. 239; delivery of a note or bill payable to order, without indorsement, is not sufficient.1 There may also be cases where the assent of the debtor might be implied from the nature of the transaction, - as where property is delivered by a bailee to B. for the use of C, or to be delivered to C, in which case the acceptance of the bailment might be treated as equivalent to an express promise to comply with the terms of the bailment, so as to render any further assent unnecessary.2 But it seems doubtful whether, if there be no express promise or act by the bailee, he would be held to be responsible at law to any person but the bailor,3 though he undoubtedly would in equity.4 If, however, future wages to be earned under a contract for service, existing at the time of an assignment, may be assigned, although the amount of such wages be then not known.1 But money to be earned under some future engagement, if any should be made, cannot be assigned, there being no right or interest in esse to which the assignment can attach.2
Mowry v. Todd, 12 Mass. 283; Jones v. Witter, 13 Mass. 307; Crocker v. Whitney, 10 Mass. 319; Coolidge v. Ruggles, 15 Mass. 388; Lampet's Case, 10 Co. 48 a; Thallhimer v. Brinckerhoff, 3 Cow. 623; Com. Dig. Assignment, D.; Tiernan v. Jaekson, 5 Peters, 597; Williams v. Everett, 14 East, 582; Crowfoot v. Gurney, 9 Bing. 372; Hodgson v. Anderson, 3 B. & C. 842; Baron v. Husband, 4 B. & Ad. 611; Mandeville v. Welch, 5 Wheat. 277.
1 Freeman v. Perry, 22 Conn. 617; Hedges v. Sealy, 9 Barb. 214.
2 Story on Bailm. § 103; Israel v. Douglas, 1 H. Bl. 242; Farmer v. Russell, 1 Bos. & Pul. 296; Priddy v. Rose, 3 Meriv. 86, 102.
3 Williams v. Everett, 14 East, 582; Tiernan v. Jackson, 5 Peters, 597; Pigott v. Thompson, 3 Bos. & Pul. 149, and note (a); Martyn v. Hind, 2 Cowp. 437; Lilly v. Hays, 5 Ad. & El. 548; Ex parte South, 3 Swanst. 393. Mr. Justice Story (2 Eq. Jur. § 1041) says: "In the common case where money or other property is delivered by a bailor to B. for the use of C, or to be delivered to C, the acceptance of the bailment amounts to an express promise from the bailee to the bailor, to deliver or pay over the property accordingly. In such a case it has been said that the person for whose use the money or property is so delivered may maintain an action at law therefor against the bailee, without any further act or assent on the part of the bailee; for a privity is created between them by the original undertaking. But of this doctrine some doubt may perhaps be entertained, unless there is some act done by the bailee, or some promise made by him, whereby he shall directly contract an obligation to such person to deliver the money or other property over to him; otherwise it would seem that the only contract would be between the bailor and his immediate bailee." In his note to this passage he adds : " There is certainly some confusion in the cases in the books on this subject-Lord Alvanley, in Pigott v. Thompson, 3 Bos. & Pul. 149, seems to have thought that if A. lets land to B., in consideration'of which B. promises to-pay the rent to C, the latter may maintain an action on that promise. But the debtor have notice of the assignment, and assent to it, and promise to pay the assignee, a privity of contract is created between the two parties, and the assignee may sue in his own name;' but otherwise he must bring his action in the name of the assignor;2 or if the assignor be dead, in the name of his executor or administrator.3
4 2 Story, Eq. Jur. § 1041; Stocks v. Dobson, 4 De G. M. & G. 11; 19 Eng. Law & Eq. 97; Meux v. Bell, 1 Hare, 73.
§ 472. Again, an assignment will not, ordinarily, be valid at law, unless the subject of it have an existence, actual or potential, at the time of the assignment.4 Mere possibilities, expectancies, or contingent rights and interests are not assignable at law, unless in special cases where they are coupled with some present interest, and pass by way of release, estoppel, or fine.5 It would seem, however, that the assignment of freight, in the course of earning, would be supported at law.6 Thus, he said that his brothers thought differently. So, in Marchington v. Vernon, cited in 1 Bos. & Pul. 101, note, Mr. Justice Buller is reported to have said, that if one person makes a promise to another for the benefit of a third, that third may maintain an action upon it. Probably it will be found, upon a thorough examination of the cases, that the true principle on which they have proceeded is that where the promise is construed to be made to A., for the use or benefit of B., A. alone can maintain an action thereon. But if there is a promise in general terms, which may be construed to be made to B. through A., there B. may maintain an action thereon. The cases of Williams v. Everett, 14 East, 582, and Tiernan v. Jackson, 5 Peters, 597, 601, contain the fullest expositions of the doctrine."