susceptible of precise or definite statement. Formerly it was held that sealed instruments were not technically negotiable; but railway bonds, issued by corporations, with coupons payable to bearer, are now held to be negotiable securities and to pass by delivery. Thomas vs. Lee County, 3 Wal., 327; 2 Kernan, 626; 8 Gray, 575.

As, in England, an assignment to the king empowers him to sue in his own name, so, the United States may sue in their own name, on a claim assigned to the government. The mere delivery of a bond, note, account or other paper evidence of debt or claim, for a valuable consideration, is a valid assignment, if such delivery was intended by the parties as a transfer.

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Rights of action for personal wrongs, as battery, slander, &c., cannot be legally assigned; neither do they, mon law, survive to an executor or administrator. ment recovered in such an action may be assigned. Stone, 1 Allen, 566. In this case it was held, that a statute in Massachusetts, which provides that a right of action for assault and battery shall survive to the personal representative of the party, did not render that right of action assignable. In Zabriskie vs. Smith, 3 Kernan, 322, it was held, that a right of action for damages, caused by false and fraudulent representations of the solvency of a buyer of goods, was not assignable, and would not survive to the defrauded party's representatives. It has also been held, that a mere right of action for an unrecognized claim for unliquidated damages against common carriers, arising out of a tort, (wrong done to the goods,) was not assignable. 18 Barb., 500. See also on this subject, McKie vs. Judd, 2 Kernan, 622; Foy vs. Troy and Boston Railroad Co., 24 Barb, 382; Hall vs. Robinson, 2 Conn., 293; Whittaker vs. Gavit, 18 Conn., 527; North vs. Turner, 9 Serg. & R., 249.

It has been held, that a right of action for a mere personal tort does not pass by an assignment of a debtor's estate under a bankrupt or insolvent law. Spense vs. Rogers, 11 Mees.. & Welsby, 191; Spense vs. Rogers, 12 Clark & Fin., 700; Man's Appeal, 18 Penn. State, 249.

Notes payable in specific articles or in labor, and thereby rendered non-negotiable, (though perhaps in terms payable to order or bearer,) are generally held to be assignable. See Thompson vs. Armstrong, Breese, 323; Haskell vs. Blair, 3 Cush., 534; Gushee vs. Eddy, 11 Gray, 505. But some cases are the other way.

SECTION 2.

Of Voluntary Assignments by Debtors without proceeding under Statutes of Bankruptcy or Insolvency.

The assignment here referred to, is, where a debtor, finding himself unable to meet his obligations, voluntarily assigns his property to his creditors, or to a trustee for their benefit, with or without a stipulation of the discharge of the debtor. This is usually done by an indenture of three parts, (see forms appended to this chapter, Nos. 4 and 8,) in which the debtor conveys the property to the trustees, and the trustees covenant to apply the proceeds according to the terms of the instrument, and the creditors stipulate to receive their portion, and sometimes agree to discharge all claims.

The legal estate vests in the trustees, and a court of equity will compel the execution of the trust. In the absence of regulating statutes, an assigning debtor may prefer one or more creditors, by conveying the whole or a disproportionate share to them. An assignment will be rendered void, or voidable, by any reservation in favor of the debtor, which may deprive the creditors of a part of his property. Delivery of the instrument of assignment is usually sufficient to pass the property, and, if it be found in the hands of the assignee, this is sufficient delivery. If real estate is included in the assigned property, the instrument should be recorded. It has been made a question, whether one partner may make a valid assignment of the entire partnership effects, without the concurrence, or against the will, of the other. In New York it has been held, that, while a special assignment may be made directly to a creditor of the firm in payment of a debt due him, there is no implied authority, derived from the partnership relation, which would authorize one, without

the consent of the other, to make a general assignment for the benefit of creditors, giving preference to one class over another. Havens vs. Hussey, 5 Paige, 30. In some other States it is held, that either partner has full power to make such an assignment. Robinson vs. Crowder, 4 McCord, 519; Mills vs. Barber, 4 Day, 428. Corporations have the same right as individuals, at common law, to assign their corporate property to trustees for the benefit of their creditors.

This form of assignment has been a fruitful source of litigation, and from the many cases which have been judicially discussed, with reference to determining what provisions may be allowed and what provisions will render the assignment void, it may be convenient to select a few for reference. See, Kendall vs. New England Carpet Company, 13 Conn., 383; Dunham vs. Waterman, 17 N. Y., 9; Murray vs. Judson, 5 Selden, 73; 17 N. Y., 478; Dow vs. Platner, 16 N. Y., 562; Nicholson vs. Leavitt, 2 Selden, 510; Brigham vs. Tillinghast, 3 Kern., 215; Carpenter vs. Underwood, 19 N. Y., 520; Oliver Lee Bank vs. Talcott, 19 N. Y., 146; Barney vs. Griffin, 2 Comst., 365; Litchfield vs. White, 3 Selden, 438.

In New York, while the courts have upheld assignments preferring creditors, they have required that they be absolute and unconditional; appropriate the assignor's property to the immediate and unqualified payment of his debts; contain no reservation or condition for the benefit of the assignor; and be free from all provisions calculated to extort from the fears of a creditor a discharge or other favor.

To protect the assignee in his right to the assigned property, it is necessary that he take and retain possession thereof. The same rule holds here as in the case of an actual sale of property, where, as we have seen in the chapter on sales, retention of possession by the seller is presumptive evidence of fraud, susceptible in most of the States of an explanation consistent with good faith. Whether the presumption arising thereout is conclusive upon the parties, or whether it is merely prima facie and may be disproved, the highest courts of the different States are not agreed. Federal courts and

those of Virginia, Kentucky, Pennsylvania, and Connecticut, incline to hold it conclusive evidence of fraud; while Maine, Massachusetts, and most of the other States, allow the presumption to be controlled by evidence of good faith and fair consideration. In the New England States, and some of the others, the right of attachment upon mesne process frequently interferes with the satisfactory operation of these assignments, and they are generally practically superseded whenever statutes of bankruptcy or insolvency are in force.

A creditor, who does not agree with other creditors to a composition, is not bound: but those who do consent are bound to act in good faith, toward each other, as well as toward the debtor. Every instrument of general assignment for the benefit of creditors (sometimes called a composition deed) is, in its spirit, an agreement between the creditors as well as with the debtor; and any agreement by which advantage is secretly given to one creditor is void as to the other creditors, and cannot be enforced against the debtor himself; it being deemed to have been obtained under a species of moral duress and compulsion.

ASSIGNMENTS.

No. 1. ASSIGNMENT OF UNITED STATES LAND WARRANT, AND PROVISIONS RELATING TO TRANSFER THEREOF.

For value received, I, A. B., to whom the within Warrant, No. , was issued, do hereby sell and assign unto [this blank should not be filled until the warrant is located] and to his heirs and assigns forever, the said Warrant, and authorize to locate the same, and receive a patent there

FORM OF ACKNOWLEDGMENT WHERE THE VENDOR IS KNOWN TO THE OFFICER TAKING THE ACKNOWLEDGMENT.

County of day of

in the year

personally

State of On this appeared [here insert the name of the warrantee] to me well known, and acknowledged the foregoing assignment to be his free act and deed. And I certify that the said [here insert the name of the warrantee] is the identical person to whom the within warrant issued, and who executed the foregoing assignment thereof.

[Officer's signature.]

The assignment and acknowledgment must be endorsed upon the warrant.

FORM OF ACKNOWLEDGMENT WHERE THE VENDOR IS NOT KNOWN TO THE OFFICER AND HIS IDENTITY HAS TO BE PROVED.

County of day of

in the year

personally

On this came before me, [here insert the name of the warrantee,] and [here insert the name and residence of a witness], and the said [here insert the name of the witness] being well known to me as a credible and disinterested person, was duly sworn by me, and on his oath declares that he well knows the said [here insert the name of the warrantee], and that he is the same person to whom the within warrant issued, and who executed the foregoing assignment; and his testimony being satisfactory evidence to me of that fact, the said [here insert the name of the warrantee] thereupon acknowl edged the said assignment to be his free act and deed. [Officer's signature].

NOTE.-In legal instruments the names of the parties should be given in full. A certificate of the authority of the officer, to take acknowledgments, &c., should be appended, except where it is taken by the clerk of a court or a judge, using a seal.