takes it subject to *all the liabilities, and clothed with all the [*356] rights, which attached to it in the hands of the assignor; and this is in accordance with the maxim of the civil law, qui in jus dominiumve alterius succedit jure ejus uti debet.' We have already given one instance illustrative of this rule, viz., where an heir or executor becomes invested with the right to property against which the Statute of Limitations has begun to run. To this we shall add only one other example, as the same general principle will necessarily again present itself to our notice in connexion with the law of contracts, which has been reserved for especial consideration in a subsequent portion of this work.

Where, then, a person pays a bill of exchange on account and for the honour of a party to the bill, the person making such payment becomes a holder of the bill, as upon a transfer from the party for whom the payment was made; that is to say, he is put in the situation of an endorsee under such party, and is clothed with all the rights and liabilities incident to that character. Thus, if A. pays the bill for the honour of B., he thereupon has a right to consider himself as an endorsee under B., and, consequently, to give notice of the dishonour to him; and if B. thereupon gives a notice to the drawer, which is within the time, so far as he is concerned A. will have a right to adopt and take advantage of it as a notice given to himself:2-Qui alterius jure utitur eodem jure uti debet.3

Without pursuing further our inquiry respecting the quantity of interest in property which is capable of being transferred, we shall, [*357] secondly, proceed to consider briefly the *quality or nature of that interest; and we must commence our remarks upon this branch of the subject with observing, that there is an important distinction which must always be kept in view between the transfer of the right of property in a chattel, and the transfer of the right of action for the same; for instance, in the case just put, although it is true that the right of property in goods may be transferred by the endorsement over of the bill of lading, yet the original contract between the owner and the consignee is not thereby transferred so as to enable the endorsee to sue upon the bill of lading in his own name.*

1 D. 50, 17, 177, pr. For instance, fee-simple estates are subject, in the hands of the heir or devisee, to debts of all kinds contracted by the deceased.

2 Goodall v. Polhill, 1 C. B. 233, 242; E. C. L. R. 50.

4

3 Pothier, Tr. de Change, pt. 1, ch. 4, art. 5, s. 114.

• Thompson v. Dominy, 14 M. & W. 403;(*) ante, p. 355.

No doubt, indeed, he might, under the circumstances, have a remedy in trover for the recovery of the goods assigned, or their value; but this remedy is of a different nature from that which he would have had if the right of action on the contract, as well as the right of property in the goods, had been assignable. It is, indeed, a well-known rule of law, that a chose in action cannot in general be assigned so as to vest in the assignee a right of action upon it in his own name.1 Where, for instance, the drawer of a ticket in the Derby lottery sold it to the plaintiff before the race, and the horse named in it was ultimately declared to be the winner, it was held that an action for money had and received would not lie by the plaintiff against the stake-holder, there being no privity of contract originally between those parties, and the assignment of a chose in action not giving to the assignee a right of action. So, although an interest in a partnership, or an equitable interest in land, is a thing of value, [*358] and may be made the subject of a valid contract, yet it is not assignable at law, so as to enable the assignee to sue in his own name, for example, as copartner, or as owner of the beneficial interest;3 and, although it is perfectly legal, and in practice very common, to assign debts for the benefit of creditors, yet the assignee must sue for them in the name of the assignor. Even at law, however, the assignment of a debt will, in certain cases, give to the assignee a right to sue in his own name for its recovery; and, in order to constitute a good equitable assignment, it is in general sufficient if there be an engagement by the debtor that a particular fund shall be charged with or appropriated to the payment of the debt, although in equity it is usual, if it be not always indispensable, to make the assignor holding the legal title a party to the suit, as well as the assignee who is beneficially interested." Courts of equity will,

1 2 Bla. Com. 442; Lampet's case, 10 Rep. 48 Co. Litt. 232, b. See as to this rule the remarks of Buller, J., 4 T. R. 340.

2 Jones v. Carter, 8 Q. B. 134; E. C. L. R. 55. See, now, stat. 8 & 9 Vict. c. 109, which renders wagers illegal.

3 Tempest v. Kilner, 2 C. B. 300, 308; E. C. L. R. 52; per Buller, J., Master v. Miller, 4 T. R. 341.

Per Bayley, J., Price v. Seaman, 4 B. & C. 528; E. C. L. R. 10.

5 Per Buller, J., Tatlock v. Harris, 3 T. R. 180; Fairlie v. Denton, 8 B. & C. 395, 400; E. C. L. R. 15; Wharton v. Walker, 4 B. & C. 166; E. C. L. R. 10; Walker v. Rostron, 9 M. & W. 411;(*) Com. Dig., Action upon case upon Assumpsit (B. 1, 3). See, also, Ex parte Lane, 16 L. J., Bank. 4.

6 See 2 Story, Eq. Jurisp., 4th ed. 406.

7 Story, Eq. Plead., ss. 153, 154.

however, give effect to assignments, not only of choses in action, but likewise of property, in many cases, where such assignments would not be recognised at law as valid or effectual to pass titles; they will, for instance, support assignments of contingent interests, of expectancies, and of things resting in mere possibility, and they look upon the assignment of a debt as in its nature amounting to a declaration of trust, and to an agreement to permit the assignee to make use of the name of the assignor for its recovery.1

*Without attempting to enumerate the various rights which [*359] are assignable, either by the express act of the party, or by the operation of the law, we may observe generally, that the maxim, assignatus utitur jure auctoris, is subject to very many restrictions besides those to which we have just alluded; for instance, although the assignee of the reversion in land is, by the common law, entitled to sue upon covenants in law, and has, under the stat. 32 Hen. 8, c. 34, a right to sue on express covenants contained in the lease, yet the operation of this statute is confined to such covenants as are technically said to run with the land, that is, such as require something to be done which is in some manner annexed and appurtenant to the land itself. In like manner, although the general effect of the various provisions in the enactment relative to bankrupts is to give the assignees of an uncertificated bankrupt the beneficial interest in all property acquired and contracts entered into by him, yet when an injury is done to the person, feelings, or reputation of the bankrupt, and not to his property, the right of suit for such an injury does not pass to the assignees, but remains vested in, and must be exercised, if at all, by the bankrupt; and even where there is a consequential damage to the personal estate resulting from an injury to the person, as in the case of a breach of a contract to cure or to marry, the damage may be so dependent upon, *and insepa[*360] rable from the injury, that no right of action in respect of

1 2 Story, Eq. Jurisp., 4th ed. 386, 387.

2 Coote, L. & T. 314; Vyvyan v. Arthur, 1 B. & C. 414; E. C. L. R. 8; Harper v. Burgh, 2 Lev. 206.

3 Spencer's case, Rep. 16, 1st resolution. See Doughty v. Bowman, 16 L. J., Q. B. 414; S. C. affirmed in error, 12 Jur. 182; Standen v. Chrismas, Id., Q. B. 265; Wright v. Burroughes, Id., C. P. 6.

4 Hancock v. Caffyn, 8 Bing. 366, 368; E. C. L. R. 21; Howard v. Crowther, 8 M. & W. 603 ;(*) Drake v. Beckham, 11 M. & W. 319;(*) Judgment, Rogers v. Spence, 13 M. & W. 580, 581;(*) affirmed, 12 Cl. & Fin. 700; S. C., 11 M. & W. 191;(*) Clark v. Calvert, 8 Taunt. 742; E. C. L. R. 4. See, also, Ellis v. Russell, 16 L. J., Q. B. 428; Williams v. Chambers, Id. 230.

such consequential damage will pass to the assignee. So, the legal effect of marriage is to vest in the husband the right of reducing into possession the chattels real and choses in action generally of the wife, yet if he dies without having exercised this power, the above descriptions of property will survive to the wife; and, as we shall hereafter see, the rule, that a vested right of action is by death transferred to the personal representatives of the deceased, is subject to some important exceptions, and must, therefore, be applied with considerable caution. It is, moreover, a well-known principle, that the right of action ex delicto, for a tort either to the person or the property, cannot in any case be assigned, although, of course, the assignee of property is entitled to sue in respect of an injury thereto subsequent to the assignment.

The case of a pawn or pledge of a chattel, is, we may further observe, peculiarly illustrative of the principle, assignatus utitur jure auctoris, as also of the more technical legal rule, that the right of action for a tort cannot be assigned; for here the pawnor retains a property in the chattel, qualified, however, by the right vested in the pawnee; and a sale of the chattel by its owner would, therefore, transfer to the vendee that qualified right only which the vendor himself possessed. If, moreover, in the case supposed, the chattel pledged be injured by default of the pawnee, and while in his custody, the vendor, and not the purchaser, will be the proper plaintiff in an action to recover *compensation for the injury caused by a breach of contract, express or implied, inasmuch as the [*361] original contract of bailment was with him. If, however, a new contract be subsequently entered into with the purchaser, or, if the injury be by the destruction or conversion of the chattel after the sale, the latter party will be entitled to enforce the remedy, as having the property in the chattel at the time of the tort committed."

Again, the well-known distinction between absolute and special property may be adverted to generally, as showing in what manner, and under what circumstances, the maxim, that an assignee succeeds to the rights of his grantor, is, in a large class of cases, directly ap

1 Drake v. Beckham, 11 M. & W. 315; (*) Herbert v. Sayer, 5 Q. B. 965; E. C. L. R. 48; is an important case with reference to the right of an uncertificated bankrupt to sue.

2 Per Parke, B., Gaters v. Madeley, 6 M. & W. 426, 427; (*) Com. Dig., Bar. & Feme, (E).

3 See the maxim, Actio personalis moritur cum personâ, post.

4 Franklin v. Neate, 13 M. & W. 481;(*) Rogers v. Kennay, 15 L. J., Q. B. 381.

plicable. Absolute property, according to Mr. Justice Lawrence, is, where one having the possession of chattels, has also the exclusive right to enjoy them, which right can only be defeated by some act of his own. Special property, on the other hand, is, where he who has the possession holds them subject to the claims of other persons.1 According, therefore, as the property in the grantor was absolute or subject to a special lien, so will be that transferred to his assigneequi in jus dominiumve alterius succedit jure ejus uti debet ; and the same principle applies where a subsequent transfer of the property is made by such assignee.2

It will be evident, that, with regard to a legal maxim so comprehensive and so general in its application as that before us, little can be attempted beyond giving to the reader a brief and necessarily imperfect outline of such only of the various classes of cases exemplify

[*362] ing its meaning and qualifications *as may seem apposite to the end which has in this section been kept more particularly in view, that, viz., of presenting a compendious statement of the most practically useful and important principles connected with the transfer of property.

We shall, therefore, without occupying additional space in remarking upon the rule above illustrated, proceed at once to an enumeration of some few other kindred maxims, which are indeed of minor importance, but which, nevertheless, could not properly be omitted in even the most cursory notice of the above-mentioned branch of our legal system.

CUICUNQUE ALIQUIS QUID CONCEDIT CONCEDERE VIDETUR ET ID SINE QUO RES IPSA ESSE NON POTUIT.

(11 Rep. 52.)

Whoever grants a thing is supposed also tacitly to grant that without which the grant itself would be of no effect.

When anything is granted, all the means to attain it,3 and all the fruits and effects of it, are granted also, and shall pass inclusive,

1 Webb v. Fox, 7 T. R. 398.

2 See Cooper v. Willomatt, 1 C. B. 672; E. C. L. R. 50, as to a sale by bailee for hire.

3 See Dalton's Justice, p. 397, ed. 1655; cited, Evans v. Rees, 12 Ad. & E. 57, 58; E. C. L. R. 40; Argument, Reg. v. Mayor of London, 16 L. J., Q. B. 192.