an interest in real estate. A life estate, charged with the support of infants (Emmons v. Cairn, 3 Barb. 243).

a. A claim against a foreign government, for an illegal capture (Couch v. Delaplain, 2 N. Y. 397; Milnor v. Metz, 16 Peters, 221).

6. Future debts (Power v. Alger, 13 Abb. 475).

c. A right of action for any injury occasioned by negligence: as neglecting to arrest (Diminy v. Fay, 38 Barb. 18); firing fences (Fried v. N. Y. Cent. R. R. 25 How. 285); killing persons (Quinn v. Moore, 15 N. Y. 432); killing cattle (Butler v. N. Y. and Erie R. R. 22 Barb 110); not removing obstructions (Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648); for loss of goods by a carrier (McKee v. Judd, 12 N. Y. 622; Waldron v. Willard, 17 N. Y. 466; Merrell v. Grinnell 30 N. Y. 594); loss of goods by inn-keeper (Stanton v. Leland, 4 E. D. Smith, 88).

d. All such rights of action for tort as would survive to the personal representative (Butler v N. Y. & Erie R. R. Co. 22 Barb. 110). The power to assign and to transmit to personal representatives are convertible (Raymond v. Fitch, 2 Cromp. M. & R. 588; Comegys v. Vasse, 1 Pet. 213; Zabriskie v. Smith, 13 N. Y. 335).

e. Semble,-A sheriff's right of action against bail (Clapp v. Schutt, 29 How. 255); and a claim for balance of account on settlement of partnership (Spring v. Baker, 1 Hilton, 526).

f. A right of action for breach of contract: as on a replevin bond (Acker v. Finn, 5 Hill, 293; a guarantee (Small v. Sloan, 1 Bosw. 352); a lease (Munson v. Riley, 2 E. D. Smith, 130); a license to use a patented article (Wilson v. Stolly, 5 McLean, 1); money had and received (Platt v. Stout, 14 Abb. 178; Gould v. Gould, 36 Barb. 270); nonpayment of officers' fees (Birkbeck v. Stafford, 23 How. 236; 14 Abb. 285); breach of articles of apprenticeship (Guilderland v. Knox, 5 Cow. 363); right of re-entry for condition broken (Van Rensselaer v. Barringer, 6 Trans. Ap. 150); breach of contract to deliver chattels (Tyler v. Barrows, 6 Rob. 104); or for services (Field v. Mayor of N. Y. 6 N. Y. 179; Sears v. Conover, 3 Keyes, 111; Monahan v. Story, 2 E. D. Smith, 393); or to pay money (Prindle v. Carruthers, 15 N. Y. 425). And where a claim is on contract, it is not rendered non-assignable because there is fraud in the transaction (Brady v. Bissel, 1 Abb. 76; French v. White, 5 Duer, 254; and see Atwell v. Le Roy. 4 Abb. 438); and no allegation in the complaint can change the real nature of the cause of action so as to render what is assignable not assignable (Brady v. Bissel, 1 Abb. 76). The right to recover money lost in betting arises on contract, and may be assigned (McDougall v. Walling, 48 Barb 364; but see Weyburn v. White, 22 Barb, 82; Meech v. Stoner, 19 N. Y. 26; Hendrickson v. Beers, 6 Bosw. 639).

g. A right of action against a vendor for fraudulent representations (Haight v. Hoyt, 19 N. Y. 464; Johnston v. Bennett, 5 Abb. N. S. 331); the cases of Zabriskie v. Smith, 13 N. Y. 322; Hyslop v. Rumdall, 4 Duer. 660, supposed to be overruled.

h. A right of action for fraud: in obtaining deed (McMahon v. Allen, 35 N. Y. 403); misapplying funds (Grocers' Nat. B'k v. Clarke, 48 Barb. 26; 32 How. 160); either of individual or corporation; (id.; Gould v. Gould, 36 Barb. 270).

i. After the conversion of a chattel or an injury to real or personal property, the owner may either sell the chattel itself, or assign his right of action for the conversion or injury (Hall v. Robinson 2 N. Y. 293; Hoyt v. Thompson, 5 N. Y. 347; McKee v. Judd, 12 N. Y. 622; Waldron v. Willard, 17 N. Y. 466; Richtmeyer v. Remsen, 38 N. Y. 206).

j. Assignment in parcels.-When a chose in action is assignable it may be assigned in separate parcels to different persons, and either of the assignees may maintain an action to recover the portion to him assigned (Field v. Mayor N. Y. 6 N. Y. 179; Cook v. Genesee Mut. Ins. Co. 8 How. 514). The rule includes judgments (More v. Trumpbour, 5 Cow. 488). As to assigning part of a bill of exchange, see Hawkins v. Gardner, 12 Mod. 213; Hawkins v. Cardy, L'd Raym. 360 Carth. 466. Where, however, a debt is assigned in sepa

ant.

rate parcels, it is in effect a splitting of the cause of action, and the whole debt, notwithstanding such assignments, should be sued for in one action (see Poor v. Guilford, 10 N. Y. 273; Bowdoin v. Coleman, 3 Abb. 431). If the owner of some part of the debt will not join as a co-plaintiff, he should be made a defendA judgment in an action for one part of the debt will not, it has been held, be a bar to an action for the remainder (Cook v. Genesee Ins. Co. 8 How. 514). A single debt (a single cause of action) cannot be converted into several debts (several causes of action), unless with the consent of the debtor (Love v. Fairchild, 13 Mo. R. 300; Palmer v. Merrill, 6 Cush. 282; Ingraham v. Hall, 11 S. &. R. 78). The law relating to splitting causes of action applies. See "Splitting cause of action," in note to § 140, post.

a. What may not be assigned. The beneficial interest of a cestui que trust in rents and profits, in certain cases (1 R. S. 730, § 63; Hone v. Van Schaick, 7 Paige 221; 20 Wend. 564).

b. Pensions granted by the general government for revolutionary services (Laws of the U. S. vol. 6. p. 274).

e. A simple expectancy, in which the assignee had no interest, and which is unpurchasable (Munsell v. Lewis, 4 Hill, 642).

d. A cause of action for a tort to person or property (Nash v. Fredericks, 12 Abb. 149; Purple v. Hudson R. R. Co. 1 Abb. 33; 4 Duer, 74; Hodgman v. Western R. R. Co. 7 How. 493; Oliver v. Walsh, 6 Cal. R. 456); even after verdict (Brooks v. Hanford, 15 Abb. 342).

e. The right of action to cancel or avoid notes or other securities or contracts on the ground of usury (Boughton v. Smith, 26 Barb. 635; see Bullard v. Raynor, 30 N. Y. 197).

f. The right of action for reduction of a servant (Howard v. Crowther, 8 M. & W. 601).

g. Indian annuities granted by the government of the United States (5 Opin. Att Gen'l, 285).

h. A contract with the United States Government (5 id. 502; 7 id. 683). i. A contingent right of dower (Moore v. Mayor of N. Y. 8 N. Y. 113).

j. A contract for convict labor (Horner v. Wood, 23 N. Y. 350).

k. Form of Assignment.—No formality is necessary to effect the transfer of a chose in action. Any transaction between the contracting parties which indicates their intention to pass the beneficial interest in the instrument from one to the other, is sufficient for that purpose; a debt or claim may be assigned by parol as well as by writing (Hooker v. Eagle B'k, 30 N. Y. 83; Arnold v. Johnson, 28 How. 249; Hinkle v. Wanzer, 17 How. U. S. Rep. 368; Judson v. Corcoran, id. 612; Slaughter v. Faust, 4 Blackf. 380; Montgomery v. Dillingham, 3 Sme. & M. 647; Hastings v. M Kinley, 1 E. D. Smith, 273; Waldron v. Baker, 4 id. 440; Dickenson v. Phillips, 1 Barb. 454; Gould v. Ellery, 39 Barb. 163; Payton v. White, 2 Hilton, 77; Sexton v. Fleet, id. 485; Briggs v. Dorr, 19 Johns, 95; Horner v. Wood, 15 Barb. 371; Green v. Hart, 1 Johns. 580; Canfield v. Munger, 12 id. 346; Prescott v. Hull, 17 id. 284); and thus, a judgment of a court of record, a bond or covenant, and a mortgage of real estate, may all be assigned orally, by mere delivery, without any instrument in writing, declaring the transfer (Ford v. Stuart, 19 Johns. 342; Briggs v. Dorr, id. 95; Dawson v. Cole, 16 id. 51; Runyon v. Mesereau, 11 id. 534; see, however, Artcher v. Zeh, 5 Hill, 200); and so of a chattel mortgage (Langdon v. Buel, 6 Wend. 80). Yet to constitute an assignment by parol it must be shown that the owner surrendered all control over the chose, and made an absolute appropriation of it (Rupp v. Blanchard, 34 Barb. 627). A verbal pledge of a negotiable instrument, without a delivery or an absolute transfer, will not make the pledgee a bona fide holder (Russell v. Scudder, 42 Barb. 31; Tacks v. Schmidt, 18 Abb. 308). As a specialty may be assigned by parol, so it may be assigned by writing without seal (Ford v. Stuart, 19 Johns. 95; Dawson V. Cole, 16 id. 51); and there are cases in which something short of an actual transfer and delivery of a chose in action will operate as an equitable assignment of the whole or some part of it (Dickerson v. Phillips, 1 Barb. 458; and see, further, Willard's Eq. Juris. 463). An assignment of a judgment is suffi

cient if it state correctly the title of the suit (i. e. the names of the partiesplaintiff and defendant) though the amount, the time when recovered, and the court in which it was rendered, be omitted (The People v. Fleming, 4 Denio, 137); and if in the title of the suit the middle letter of the plaintiff's name be omitted, it is immaterial (Aylesworth v. Brown, 10 Barb. 167). The word assigned, with the assignor's signature written on the back of an account, is a sufficient assignment (Ryan v. Maddex, 6 Cal. Rep. 247; Sexton v. Fleet, 2 Hilton, 478). Where a written assignment of a claim, with the name of the assignee left in blank, is delivered to a party with intent to transfer the same to him, it will operate to vest in him the title as assignee; but he may fill in the name of a third person, and deliver the instrument to the latter, and so transfer the title to him (Waldron v. Baker, 4 E. D. Smith, 440).

a. The defendant made and signed an order as follows: "Messrs. F. & L. pay J. L. or order $68 in such furniture as he may select, and charge same to my account for value received." On the back of this order J. L. wrote: "Pay to H. L.;" and signed his name thereto; held that the endorsement invested H. L. with all the rights of J. L., and entitled him to sue on said order (Lenz v. Jansen, 18 How. 265).

b. A written instrument for the payment of money upon a contingency, may be transferred by delivery merely, although drawn payable "to order." Such an instrument is not negotiable, and no indorsement is requisite to transfer the title. A delivery with intent to vest in the party all the payee's interest in it is sufficient (Loftus v. Clark, 1 Hilton, 310).

c. The rule that a bill payable to order must be transferred by indorsement applies only to make the instrument negotiable; but the transfer by delivery is sufficient to enable the holder to sue upon such a bill or note in his own name (Suvage v. Bevier, 12 How. 166; Billings v. Jane, 11 Barb. 620; White v. Brown, 14 How. 282; Houghton v. Dodge, 5 Bosw. 326; Sexton v. Fleet, 2 Hilton, 485; Brown v. Richardson, 20 N. Y. 472; 1 Bosw. 402; Farrington v. Park B`k, 39 Barb. 645; Gould v. Ellery, id. 163).

d. Consideration for assignment.-An assignee of a right of action is not bound to show that he gave any valuable consideration for the assignment. The owner of a cause of action may give it away if he choose, and the donee will have as good a right as though he were an assignee for value (Clark v. Downing, 1 E. D. Smith, 406; Beach v, Raymond, 2 id. 497; Mills v. Fox, 4 id. 220: Richardson v. Mead, 27 Barb. 178; Arthur v. Bro›ks, 14 Barb. 79; Merrick v. Brainard, 38 Barb. 574; Vogel v. Babcock, 1 Abb. 177; Allen v. Brown, 51 Barb. 93). In the absence of evidence to the contrary, it will be presumed the assignment was for a sufficient consideration (Eno v. Crooke, 10 N. Y. 60; Potter v. Chadsey, 16 Abb. 146), and in case of the assignment of a note that it was assigned before it became due (Andrews v. Chadbourne, 19 Barb. 147). Proof of a valuable consideration is only necessary to be made when a defense is set up, which, unless the plaintiff was a purchaser for value, would conclude him (James v. Chalmers, 5 Sand. 52; 6 N. Y. 214); and where the object is to prove that the alleged assignment to the plaintiff is a mere sham, and that although an assignment in form has been executed, it was executed under an arrangement that the recovery should be for the benefit of the alleged assignor; but the mere fact that there was no consideration does not alone amount to any thing (Burtnett v. Gwynne, 2 Abb. 81; and see Bell v. Drew, 4 E. D. Smith, 62; Merrick v. Brainard, 38 Barb. 575); and when in pleading, the assignment is alleged to have been for value received, the allegation as to value received is immaterial (Wilson v. Codman, 3 Cranch, 193; Vogel v. Babcock, 1 Abb. 177). Where one becomes the legal owner of a claim by assignment, it is immaterial to the debtor whether the assignee receives the money upon it in his own right or as a trustee (Hoogland v. Trask, 6 Rob. 540).

e. Proof of assignment.-An assignment is proved by the evidence of the payee of the note in suit that he had indorsed the note to the plaintiff, and that he had no interest in the note when sworn (Brown v. Richardson, 20 N. Y.472). The production by the plaintiff on the trial of an assignment to

himself, after due proof of the execution thereof by the assignor, is sufficient evidence of a delivery of such assignment (Story v. Bishop, 4 E. D. Smith, 423), and that it was delivered on the day it bears date (Bell v. Davis, 8 Barb. 210; and see Genter v. Morrison, 31 Barb. 155).

a. Parol proof to explain assignment.-An_assignment of a judgment absolute in form may be shown to have been made and received as security for loans (Storer v. Coe, 2 Bosw. 662; and see Lewando v. Dunham, 1 Hilton, 114).

b. Re-assignment.-The redelivery and surrender by the assignee to the assignor of the written assignment of a claim, and its acceptance by the latter, with the mutual understanding that the assignment is thenceforth to be void, operates as an equitable re-assignment of the claim to the original owner, and divests the assignee of his title (Ball v. Larken, 3 E. D, Smith, 555; and see Tomlinson v. Borst, 30 Barb. 47).

c. Implied warrantee in assignment.-In every assignment of an instrument, even not negotiable, the assignor impliedly warrants that the instrument is valid, and the obligor liable to pay it (Lile v. Hopkins, 12 Sme. & M. 302; see 2 El. and Bl. 849); and that there is no legal defense to its collection, arising out of his own connection with its origin (Delaware B'k v. Jarvis, 20 N. Y. 226); that the party was competent to contract (Erwin v. Downs, 15 N. Y. 574; that the amount is unpaid (Furness v. Ferguson, 15 N. Y. 439).

d. Assignment of principal carries collaterals.-Where a debt is assigned, the assignment carries with it all the collateral securities held by the assignor for its collection, although they are not mentioned or referred to in the assignment (Parmelee v. Dann, 23 Barb. 461; Sexton v. Fleet, 2 Hilton, 484). Thus the assignment of an undertaking given by a defendant in an action of claim and delivery carries with it the judgment in the action, semble (Morange v. Mudge, 6 Abb. 243). The assignment of a guaranteed note carries with it the guarantee (Gould v. Ellery, 39 Barb. 163); and the assignment of a debt necessarily carries with it, as an incident, a collateral mortgage (Jackson v. Blodgett, 5 Cow. 202), by which it is secured. So the assignment of a judgment carries with it the debt and any mortgage given to secure it; and if the assignment be of a part of the debt or judgment, it carries with it a similar part of the mortgage (Pattison v. Hull, 9 Cow. 747). An assignment of shares of stock in an incorporated company passes the growing profits of such shares (Kane v. Bloodgood, 7 Johns. Ch. R. 108; Willard's Eq. Juris. 462). An assignment by a defendant, who prevails in an action of claim and delivery of the judgment, and all moneys to be obtained by means thereof, or by any proceedings to be had thereon, transfers to the assignee any undertaking executed in the action, upon requisition made for the delivery of property to plaintiff; and the assignee may maintain an action upon such an undertaking (Bowdoin v. Colman, 3 Abb. 431; 6 Duer, 182). An assignment of "all my property and estate of every kind," or, "interest," transfers a right of action existing in favor of the assignor for the conversion of a chattel (McKee v. Judd, 12 N. Y. 622; Waldron v. Willard, 17 N. Y. 466). A sale of goods does not carry with it a right of action for their conversion (Hicks v. Cleveland, 37 Barb. 573). Where the assignment of the principal security carries with it all subsidiary securities, it is not necessary to allege in the complaint more than the assignment of the principal security (Hosmer v. True, 19 Barb. 106). An assignment of a judgment held not to carry with it a right of action for fraud in obtaining the judgment (Borst v. Baldwin, 30 Barb. 180). And the assignment of a right of action on a policy after a loss, held not to carry with it the policy (Courtney v. N. Y. Ins. Co. 28 Barb. 116).

§ 112. (Am'd 1849). Assignment of thing in action.

In the case of an assignment of a thing in action, the action by the assignee shall be without prejudice to any set-off or other de

fense existing at the time of, or before notice of, the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before due.

a. Effect of section. This section does not change the substantial rights of the assignor and assignee. In the action by the assignee, the defendant may avail himself of any defense he might have interposed had the action been by the assignor, and which existed in favor of the defendant against such assignor at the time of the assignment (Western Bank v. Sherwood, 29 Barb. 383; Beckwith v. Union Bank, 9 N. Y. 211; Myers v. Davis, 22 N. Y. 489), or in some cases at the time of receiving notice of the assignment (Solomon v. Holt. 3 E. D. Smith, 139).

b. Right of assignee.-An assignee takes the demand subject to all equities existing between the parties to the contract (Blydenburgh v. Thayer, 1 Trans. App. 221; 3 Keyes, 393; 34 How. 88; Western Bank v. Sherwood, 29 Barb. 383; Bush v. Lathrop, 22 N. Y. 535; Wood v. Perry, 1 Barb. 115; Ainslie v. Boynton, 2 Barb. 258). He stands in exactly the same situation as the assignor (Mangles v. Dixon, 3 Ho. of L. Cas. 702; 18 E. Law & Eq. R. 82; Roberts v. Carter, 24 How. 44; Butler v. N. Y. & Erie R. R. Co., 22 Barb. 110). This rule applies to an assignment of a warehouse receipt (Commercial Bank of Rochester v. Colt, 15 Barb, 506), and to assignments for the benefit of creditors (Maas v. Goodman, 2 Hilton, 275; Marine Insurance Co. v. Jauncey, 1 Barb. 486).

c. Where a liquidated demand not due is assigned, the debtor cannot set off a like demand he has against the assignor, but not due at the time of the assignment (Watt v. Mayor of N. Y. 1 Sand. 23), although the assignor was insolvent (Myers v. Davis, 22 N. Y. 489; see Beckwith v. Union Bank, 9 N. Y. 211; Wells v. Stewart, 3 Barb. 40; Robinson v. Howes, 20 N. Y. 84; Myers v. Davis, 22 N. Y. 489; Mass v. Goodman, 2 Hilton, 275; Herrick v. Woolverton, 42 Barb. 50).

d. In an action by an assignee, the defendant cannot set off a judgment for costs obtained against the plaintiff's assignor subsequent to the assignment, and in an action in which the said assignee took no part (Ogden v.. Prentice, 33 Barb. 160).

e. Notice.-Courts protect the rights of assignees against all persons having either express or implied notice of the assignment (Wilkins v Batterman, 4 Barb. 47; and see Williamson v. Brown, 15 Ñ. Y. 354). The assignee of a chose in action not negotiable may lose his title by omitting to give notice to the debtor of the assignment (Gibson v. Haggarty, 5 Trans. App. 143). But the assignee of a demand is not protected against the subsequent dealings of his assignor with the debtor, where the latter acts in good faith (Huntington v. Potter, 32 Barb. 300). A debtor who sees his obligation transferred by the holder to a bona fide purchaser, without giving any notice of his set-off, is estopped from setting up such set-off against the purchaser (Tylee v. Yates, 3 Barb. 222; and see Rae v. Lawser, 18 How. 23).

f. Costs.-The assignee of a cause of action, assigned after action brought, is liable to the defendant for costs, if he (the assignee) proceed in the action after the assignment; and in such a case he takes the demand cum onere, and is liable for the costs which had accrued before as well as those which arise after the assignment (10 Wend. 622; 20 ib. 630, 632). See section 321, post.

g. Admissions of assignor.-The declarations of an assignor of a chose in action, made while he is the holder, and before or after assignment, are not evidence against his assignee (Smith v. Webb, 1 Barb. 230; Tousley v. Barry, 16 N. Y. 497; Booth v. Sweezy, 8 id. 276; Garland v. Harrison, 17 Mo. R. [2 Ben.] 282; and see Schenk v. Warner, 37 Barb. 261; Osborn v. Robbins, id. 481; Foster v. Beals, 21 N. Y. 247; Jones v. East. Soc. Meth. Epis. Church, 21 Barb.. 161; Hanna v. Curtis, 1 Barb. Ch. R. 263 ; and see Peck v. Yorks, 47 Barb. 131),