the defendant's license would necessarily affect Ball's commissions, and, in deed, work a rescission of the entire agreement between him and the defendant. It only remains to be considered whether the complainants are entitled to relief under their prayer for an account, and, if so, upon what principles such account is to be taken. Albert Ball testifies that he visited the defendant's office on the 17th of January, 1877. He says: "I handed him a notice from John Ball & Co. of the transfer of my rights and royalties that had become due under my contract with Mr. Bidwell, and, I think, in connection with that, a letter stating they had withdrawn a certain circular they had issued."

On January 27, 1877, John Ball & Co. addressed the defendant a letter in which they say: "You are hereby notified that Albert Ball has assigned to us all royalty or patent fees which are due or to become due, under provisions of contract between you and him dated July 19, 1876, and that we shall look to you for payment of same to us."

To this notification the defendant replied by letter dated January 30, 1877, in which he says: "I take note of your notice that Albert Ball has assigned to you the royalty which may become due to him under my contract with him dated July 19, 1876, and in reply thereto have to state that the amount, in round figures equal to about $1,500, has already been advanced to Mr. Albert Ball upon the royalty and commissions for selling. As I cannot know at this date how much of the amount will be applicable to commissions, I could not determine how much of it would go off the royalty. Any balance, however, which may be due upon the same it will be equally agreeable to me to pay you at the proper time."

Under date of February 6, 1877, John Ball & Co. wrote to the defendant: "We cannot consent that any amounts advanced to Mr. Ball after the 17th instant should be included in the amount held subject to royalty, as you had notice through him of the transfer to us; and amounts advanced after such notice were so done at your own risk of being taken up by commissions or otherwise by Mr. Ball."

It appears, as I understand the evidence, that on January 18, 1877, the defendant made an advance to Albert Ball of $546.40, which afterwards was reduced to $464.20. This advance the evidence shows was in accordance with previous dealings between Ball and the defendant under their agreement, and nothing in the evidence relating to the transaction indicates any intentional bad faith to John Ball & Co. Is, then, the position taken by them and by the complainants, that this advance cannot be brought into the account between them and the defendant, tenable? I think not. The notice proved to have been given to the defendant on January 17th was of the transfer of "royalties that had become due;" and it does not appear that proper notice was given be fore the letter of January 27, 1877. But if the notice of January 17th had been ever so full, why should it have the effect claimed for it? The defendant was not a mere licensee of Albert Ball, accountable for royalty. Ball and the defendant were engaged in a joint enterprise, which was to endure while the patents were in force. And if the defendant conceived that the success of the enterprise would be promoted by an advance, why might he not make it, notwithstanding the alleged notice? Why should he be trammeled by an assignment to which he was not a party, and to which he had not yet given his consent? The assignment to John Ball & Co., it will be observed, was not the entire agreement between Albert Ball and the defendant. It was a partial assignment only. Upon what sound principle could the contract be severed by

one party without the assent of the other? Say the supreme court, in Mandeville v. Welch, 5 Wheat., 286: "A creditor shall not be permitted to split up a single cause of action into many actions without the assent of his debtor, since it may subject him to many embarrassments and responsibilities not contemplated in his original contract. He has the right to stand upon the singleness of his original contract, and to decline any legal or equitable assignments by which it may be broken into fragments."

It will not do to say that Ball's royalties and commissions are distinct and separable claims. They both arise under one contract, grow out of the same enterprise, are closely connected, and properly the subject of one account. It seems to me that it is only by virtue of the defendant's assent to the assignment to John Ball & Co., given in his letter of January 30, 1877, and his subsequent recognition of the plaintiffs' rights upon the basis of that letter, that the plaintiffs can maintain this bill. In all cases where the assignment does not pass the legal title, and is not absolute and unconditional, or there are remaining rights or liberties of the assignor which may be affected by the decree, he is a necessary party. 1 Dan. Ch., 192; Story's Eq. Pl., § 153. Now, the assignment not having been absolute, and but partial, Albert Ball would be a necessary party, save for the defendant's assent; and as the plaintiffs must rely upon the defendant's assent in order to maintain this bill, they must take it with its qualification.

The case will be referred to a master, to state an account between the parties in conformity to the views herein expressed. When the balance due the plaintiffs is ascertained, we will consider whether they may not be entitled to an injunction against the defendant until he pays the arrears of royalties so found to be due.

§ 28. Equitable assignment.- An agreement to pay out of a particular fund, however clear in its terms, is not an equitable assignment. In order to make the assignment complete, the assignor must not retain any control over the fund — any power to collect, or any power of revocation. The transfer must be of such a character that the fund-holder can safely pay, and is compellable to do so, though forbidden by the assignor; and where the transfer is of such a character, the fund-holder is bound from the time of notice. The phraseology employed is not material, provided the intent to transfer is manifested. Such an intent and its execution are indispensable. A bill of exchange or check is not an equitable assignment pro tanto of the funds of the drawer in the hands of the drawee. But an order to pay out of a specified fund has always been held to be a valid assignment in equity and to fulfil all the requirements of the law. Cristmas v. Russell, 14 Wall., 84. See S$ 1, 3, 4.

§ 29. An order drawn on a general or a particular fund, for a part only, does not amount to an assignment of that part, or give a lien as against the drawee, unless he consent to the appropriation by an acceptance of the draft, or an obligation to accept may be fairly implied from the custom of trade, or the course of business between the parties as a part of the contract. Mandeville v. Welch, 5 Wheat., 286. See § 4.

§ 30. Where a draft is drawn by a bankrupt, but not upon any particular fund, such draft is not an assignment of the money in the hands of the drawee before acceptance of it by the drawee. It is merely a security, and simply makes the payee a creditor. So where a draft was drawn after an act of bankruptcy was committed, and was presented before the commission of bankruptcy issued, but was refused by the drawee, it was held that the payee had only the right of a general creditor. Dickey v. Harmon, 1 Cr. C. C., 202.

§ 31. A draft upon a debtor by his creditor is an equitable assignment of the fund as against a creditor of the creditor who attaches the fund in the debtor's hands, even though the debtor had no notice of the assignment till after the attachment was served. King v. Gorsline, 4 Cr. C. C., 151. Affirmed and followed, Miller v. Hubbard, 4 Cr. C. C., 453.

§ 32. An order drawn by a creditor for the whole debt is an assignment of the fund, and as soon as the debtor is notified, he becomes, even without his assent, obligated to pay to the

assignee; but an order drawn for a part of it will not bind him unless he assents to it by accepting the draft. The Hull of a New Ship, Dav., 206.

§ 33. It seems that although a claim is not assignable at law, yet its assignment may convey an equitable interest; but the assignee in such a case cannot maintain an action thereon in his own name. Jackson v. United States,* 1 Ct. Cl., 261.

§ 34. An assignee of a chose in action will not be permitted to proceed by bill in equity to enforce for his own use the legal right of his assignor, merely because he cannot sue at law in his own name. Hayward v. Andrews, 16 Otto, 675. See § 37.

§ 35. A court of equity will enforce and protect an assignment of part of a fund. Union Ins. Co. v. Glover, 9 Fed. R., 529.

§ 36. Where A. has a claim against the government and draws an order on B., his attorney, in favor of a stranger, against the fund, which is accepted by the attorney, it seems that such draft is an assignment pro tanto of the fund, and, in the absence of statutory prohibition, would be a valid assignment. Spofford v. Kirk, 7 Otto, 487.

§ 37. Choses in action.-The general principle of law is, that choses in action are not at law assignable. But, if assigned, and the debtor promise to pay the debt to the assignee, the latter may maintain an action for the amount against the debtor, as money had and received to his use. Tiernan v. Jackson, 5 Pet., 597. See § 34.

§ 33. Notwithstanding the strictness, particularly in the earlier cases in the courts of common law, with respect to assignments of equitable interests and choses in action, the books abound with cases showing that the rule at common law has been much relaxed, or almost disregarded, by the courts of equity, which, from a very early period, have held that assignments for valuable consideration, of a mere possibility, are valid, and will be carried into effect upon the same principle as they enforce the performance of an agreement, when not contrary to their own rules or to public policy. Hinkle v. Wanzer, 17 How., 367.

§ 39. Courts of law, imitating the example of courts of equity, take notice of assignments of choses in action, and will, to every substantial purpose, give them effect. Corser v. Craig, 1 Wash., 427.

§ 40. Where a chose in action is assigned by the owner he shall not be permitted fraudulently to interfere and defeat the rights of the assignee in the prosecution of any suit to enforce those rights; and it makes no difference whether the assignment be good at law, or in equity only. Mandeville v. Welch, 5 Wheat., 283.

41. Where a chose in action is assigned, empowering the assignee to collect the money, and satisfy a debt due him from the assignor, the assignee may execute a release which will bar an action by the assignor. Dade v. Herbert, 1 Cr. C. C., 85.

§ 42. An assignee of a chose in action may sue in his own name in the admiralty; and this rule, it seems, will hold good where the assignment is only of a part of the entire claim. Swett v. Black, 1 Spr., 580.

§ 43. · subject to equities.— The general rule is that an assignee of a chose in action cannot stand in a better situation than his assignor, as to his rights against other persons; and where the instrument is not negotiable, even a want of notice will not give validity to the assignment of a chose in action, which, as between the original parties, was infected with fraud or illegality. Fales v. Mayberry, 2 Gall., 564. See § 5.

§ 44. It is true, as a general rule, that a purchaser of a chose in action, or of an equitable title, must abide by the case of the person from whom he buys, and will only be entitled to the remedies of the seller; and yet, there may be cases in which a purchaser, by sustaining the character of a bona fide assignee, will be in a better situation than the person was of whom he bought; as for instance, where the purchaser who alone had made inquiry and given notice to the debtor, or to a trustee holding a fund, would be preferred over the prior purchaser, who neglected to give notice of his assignment, and warn others not to buy. Judson v. Corcoran, 17 How., 615.

$45. Where an equity is successively assigned in a chose in action to two innocent persons, whose equities are equal, the one who first draws to his equity the legal title will be preferred. Ibid.

§ 46. The assignee of a chose in action takes it subject to the same equity as it was subject to in the hands of the assignor. United States v. Sturges, 1 Paine, 534. $ 47. possibilities and contingent interests. The result of the authorities seems to be that, in order 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. But courts of equity do not confine themselves to the giving of effect to assignments of rights and interests which are absolutely fixed and in esse. 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 presenti, 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. Mitchell v. Winslow, 2 Story, 638, 639.

§ 48. Mere personal torts, which die with the person, and do not survive to his personal representative, are not capable of passing by assignment; but vested rights ad rem and in re, possibilities coupled with an interest, and claims growing out of and adhering to property, may pass by assignment. Comegys v. Vasse, 1 Pet., 213.

§ 49. Miscellaneous cases.-A transfer or assignment of personal property, valid by the law of the owner's domicile, is valid everywhere. Caskie v. Webster, 2 Wall. Jr., 132.

$ 50. An assignment executed before the death of a testator, assigning all the assignor's estate and effects in possession, or which may become due and owing to him, did not convey a legacy left to the wife of the assignor. Cook v. Conway, 2 Cr. C. C., 99.

§ 51. In England, any instrument or claim, though not negotiable, may be assigned to the king, who can sue on it in his own name. No valid objection is perceived against giving the same effect to an assignment to the government in this country. United States v. Buford, 3 Pet., 30.

§ 52. At common law, the assignment of a claim for unliquidated damages does not transfer to the assignee the power to sue in his own name, or to plead the claim as a set-off. United States v. Robeson, 9 Pet., 325. See § 2.

§ 53. A book debt of a merchant is not assignable at law, but will be sustained in equity. Anderson v. Tompkins, 1 Marsh., 464.

§ 54. A right of action for a wrong committed is neither assignable in fact or by operation of law, and no one but the party directly injured by a tort can sue for the injury arising from it. So where a notary falsely and fraudulently certified that a certain conveyance of an interest in real estate was properly acknowledged, it was held that a purchaser under such assignment could not recover of the notary for a loss resulting from such notary's malfeasance. Ware v. Brown, 2 Bond, 269. See § 61.

§ 55. An assignment of a prison bounds bond by a deputy marshal, in the name of the marshal, is good. Scott v. Wise, 1 Cr. C. C., 473.

§ 56. Rights of assignee.- Where a bond given to indemnify the obligee, as indorser of a note, is assigned, the assignee takes it subject to all equities. Scott v. Shreeve, 12 Wheat., 608.

$57. In a suit by the assignee in the name of the original creditor, evidence of payments made to the assignor after notice of the assignment is not admissible. Gardner v. Tennison,* 2 Cr. C. C., 338.

58. An assignment of rents, accompanied with a power of attorney authorizing the assignee to collect them, will enable the assignee to collect them after the death of the assignor, where they become due during the life-time of the assignor. Taylor v. Moore,* 5 Cr. C. C., 317.

$ 59. The assignment of a debt carries with it an assignment of a judgment or mortgage by which it is secured. If a part only of the debt is assigned, a pro tanto portion of the security follows it. Batesville Institute v. Kauffman, 18 Wall., 154.

§ 60. A mere personal agreement by one having a claim against the government, to pay a certain percentage thereof to his attorney for his compensation for procuring its allowance by congress, is not an assignment pro tanto of such percentage, and gives the attorney no lien on the fund. Trist v. Child, 21 Wall., 447.

§ 61. A general assignment of goods gives the assignor a good title to the proceeds into which such goods may be converted by sale or barter. De Wolf v. Harris, 4 Pet., 147.

As to Assignment of Mortgages, see .CONVEYANCES; Patents and Copyright, see PATENTS. Assignment for Benefit of Creditors, see DEBTOR AND CREDITOR.

Priority of United States, see GOVERNMENT. Right of Assignee to Sue, see COURTS; PRACTICE, sub-title Parties.

See, also, BILLS AND NOTES; BONDS; CONTRACTS.

ASSIGNMENT OF ERRORS.

See APPEALS AND WRITS OF ERROR.

ASSOCIATIONS.

See CHURCHES AND BENEVOLENT ASSOCIATIONS.

ASSUMPSIT.

See ACTIONS.

ATTACHMENT.

See WRITS.

ATTAINDER.

See CONSTITUTION AND Laws.

ATTORNEY-GENERAL.

See GOVERNMENT.

ATTORNEYS.*

I. ADMISSION, SUSPENSION, REMOVAL AND RESTORATION, §§ 1-82.

II. EMPLOYMENT AND AUTHORITY, $$ 83-139.

III. ATTORNEY AND CLIENT. DUTIES AND LIABILITIES OF ATTORNEYS, SS 140-214. IV. DISCHARGE, COMPENSATION AND LIEN, §§ 215-305.

I. ADMISSION, SUSPENSION, REMOVAL AND RESTORATION.

SUMMARY ·Power of courts, § 1.— Conduct of attorneys, § 2.—Of the pleadings, § 3.— Charges should be sworn to, § 4.- Not criminal nor triable by jury, § 5.—Trial for other offenses, § 6. Certainty of information, § 7.— Unprofessional conduct, §§ 8-10.-Discretion under a statute, § 11.— Threatening the judge, § 12.—Admission of person disbarred in another court, § 13.- Effect of removal in another court, § 14.— Discretion of court not unlimited, § 15.- Mandamus lies to restore, when, §§ 16, 17.- Order of removal not reviewable, §§ 18, 19.- Judge not liable for damages, § 20.

§ 1. All courts have power to disbar attorneys who are guilty of professional misbehavior; put this is distinct from the power to punish for contempt. Ex parte Bradley, §§ 21-29; Ex parte Burr, $$ 30-37. See § 68.

§ 2. Judicial inquiry into an attorney's misconduct is not restricted to his official acts. It may include his conduct out of court. Ex parte Burr, §§ 30-37.

§ 3. Proceedings to disbar need not be instituted by formal pleadings. A letter, affidavit or motion is sufficient; and, since such proceedings are not criminal, the offense need not be charged with the highest degree of certainty. Randall v. Brigham, §§ 38-41; Ex parte Cole, 42-51.

4. Charges for removal should be sworn to, but the oath may be waived. Ex parte Burr, 65-67.

§ 5. Proceedings for removal are not criminal; nor are they triable by a jury. Ex parte Burr, $ 30-37; Randall v. Brigham, §§ 38-41.

*Edited by ADELBERT HAMILTON, ESQ., of the Chicago Bar.