8 paid regardless of the state of accounts between the drawer and drawee. But the discussion seems generally to have been confined to an inquiry whether the order itself could be shown to amount to an assignment. For the reasons given this seems impossible. The fact, however, that an absolute order, negotiable or otherwise, has been given does not preclude the possibility that an assignment of the fund also has been made to secure the payment of the order. There is nothing in the writing to contradict such an intention. If a written assignent were given in connection with a check or other absolute order, it seems difficult to suppose the written assignment would not be given proper effect; and since an assignment need not be in writing, except as required by statutes, it seems to follow that any intent manifested by the drawer of an absolute order that a specific fund shall be assigned to secure payment of the order, would be as operative as a writing. The weight of authority sustains the position that such an intent may be shown orally.10 It was laid down by Story,11 that a bill of exchange or order which did not purport to be drawn on a particular fund became an assignment when accepted by the drawee and this statement is frequently repeated in the cases.12 It is, however, not strictly accurate. The acceptance creates a novation which is more than a mere assignment. The payee of the order acquires a new and direct legal right against the acceptor, which could always have been enforced by an action by the payee in his own name, and which is not subject to any defence which might have been set up against 7 This was so held in Hove v. Stanhope State Bank, 138 Iowa, 39, 115 N. W. 476; although the Negotiable Instruments Law, in force in Iowa, provides that a check is not an assignment. See supra, § 424, infra, § 430. 10 Fourth Nat. Bank v. Yardley, 165 U. S. 634, 644, 41 L. Ed. 855, 17 S. Ct. 439; Moore v. Lowrey, 25 Iowa, 336, 95 Am. Dec. 790; Risley v. Phoenix Bank, 83 N. Y. 318, 38 Am. Rep. 421; Throop Grain Cleaner Co. v. Smith, 110 N. Y. 83, 88, 17 N. E. 671; Mc Daniel v. Maxwell, 12 Ore. 202, 27 Pac. 952, 28 Am. St. Rep. 740; The First Nat. Bank of Wellsburg v. Kimberlands, 16 W. Va. 555. Where a bank book was delivered simultaneously with a check, and the rules of the bank required that the book must be presented in order to secure payment, there was held to be a valid assignment. Venturi v. Silvio (Ala.), 73 So. 45. 11 Mandeville v. Welch, 5 Wheat. 277, 5 L. Ed. 87. 12 See cases cited in notes to the preceding section passim. the drawer, 13 unless the acceptance is conditional.14 A drawee who was indebted to the drawer for the sum named in the order for the same reason is by his acceptance discharged from further liability to the drawer of the order. 15 An order by the creditor given directly to the debtor requesting him to pay a third person does not in the absence of notice to that person make him an assignee of the claim. The request is merely a revocable mandate. 16 If, however, the creditor should make a contract with his debtor that the latter should pay a third person, the original obligation would thereby be discharged, and under the new contract the rights of the person to whom payment was to be made would be governed by the principle applicable to contracts for the benefit of a third person." § 427. Orders on a drawee to pay when he has collected. Sometimes an order is given upon a drawee who has not yet collected the claim to which the order refers. That such an order operates as an assignment of the drawer's claim against the drawee when the money is collected, is unquestionable, 18 13 Walker v. Rostron, 9 M. & W. 411; Delaware County Commissioners v. Diebold Safe & Lock Co., 133 U. S. 473, 486, 33 L. Ed. 674, 10 S. Ct. 399; Barlow v. Lande, 25 Cal. App. 424, 147 Pac. 231; Page v. Danforth, 53 Me. 174; Burrows v. Glover, 106 Mass. 324; Thompson v. Emery, 27 N. H. 269; Hall v. Jones, 151 N. C. 419, 66 S. E. 350; Bentley v. Standard Fire Ins. Co., 40 W. Va. 729, 23 S. E. 584; McEneaney v. Shevlin, [1912] 1 Ir. Rep. 32. Cf. Carozza v. Boxley, 203 Fed. 673, 122 C. C. A. 69; Curtis v. Walpole Fire Co., 218 Fed. 145, 134 C. C. A. 140. In Getchell v. Maney, 69 Me. 442, 443, the court said: "In such cases the rights of the plaintiff as assignee are simply the consideration for the new contract, and the new contract is the ground of action. The suit is upon the defendant's promise to the plaintiff, and not 'upon the assignment,' or upon any right derived from the assignment ex vi facti." Similarly the New Jersey Court: "If, however, such an order had been given and accepted by [the debtor] the affair would have reached the stage of novation and [the debtor] would have been liable at law to [the assignee]." Lanigan v. Bradley & Currier Co., 50 N. J. Eq. 201, 214, 24 Atl. 505. 14 Hogan v. Globe Mut. &c. Assoc., 140 Cal. 610, 74 Pac. 153. 15 Buttrick Lumber Co. v. Collins, 202 Mass. 413, 418, 89 N. E. 138. 16 Brockmeyer v. Washington Nat. Bank, 40 Kans. 744, 21 Pac. 300; Schreiber v. Keller Engraving Co., 57 N. Y. Misc. 644, 108 N. Y. S. 658; Alvord v. Luckenbach, 106 Wis. 537, 82 N. W. 535. See also Glegg v. Rees, L. R. 7 Ch. 71, 74. 17 See McEneaney v. Shevlin, [1912] 1 Ir. R. 32, 278; Slaughter v. Bank of Texline (Tex. Civ. App.), 164 S. W. 27. 18 See supra, § 414. but whether it operates as an assignment of the claim before it is paid to the drawee, is not so clear. Some decisions hold that it is not an assignment and accordingly a garnishment of the ultimate debtor before he has paid to the drawee of the order is effective, 19 and also a settlement may be made by the drawer with the ultimate debtor.20 It seems, however, that such an order should operate as an assignment if the payee is intended to collect the claim and keep its proceeds. The drawer should hardly be allowed to act in derogation of the order. When he directs the drawee to pay what the latter collects, it is a natural inference that he impliedly undertakes that the drawee shall be allowed to collect without interference. If this implication is proper, the payee of the order has in effect a power which cannot be destroyed to collect the claim from the ultimate debtor through the drawee as an intermediary.21 § 428. Promises to assign or to pay out of a particular fund are not assignments. It is sometimes said that "every assignment of a chose in action is merely an executory contract which equity considers as executed, and which the law following equity regards as conferring certain rights which the assignor is bound to respect;"22 but there is a distinction between the enforcement by equity of an agreement which the parties intended to take effect as a 19 White v. Coleman, 130 Mass. 316; In re Cleary, 9 Wash. 605, 38 Pac. 79. But in Muller v. Kling, 209 N. Y. 239, 103 N. E. 138, a purchaser of a draft drawn on a foreign drawee secured by a draft in favor of the foreign drawee drawn on a debtor of the drawer was held entitled to the fund represented by the collateral draft as against an assignee for the benefit of creditors. And see Nesmith v. Drum, 8 W. & S. 9, 42 Am. Dec. 260. 20 Commonwealth v. Cummings, 155 Pa. 30, 25 Atl. 996; Lindsay v. Price, 33 Tex. 280. See also Clayton v. Fawcett's Adms., 2 Leigh, 19. In the case last cited the order had been accepted by the immediate drawee but the drawer had himself collected from the debtor. The payee sued the acceptor. The court held the acceptance in effect was only to pay when the claim was collected. The decision seems correct, but the court said also that the drawer "had a perfect right in law to revoke" the order before the drawee collected it. This seems questionable. 21 This view finds support in Spofford v. Kirk, 97 U. S. 484, 24 L. Ed. 1032; Nesmith v. Drum, 8 W. & S. 9, 42 Am. Dec. 260. 22 Williams v. Ingersoll, 89 N. Y. 508, 519. present transaction and an agreement which they intended to carry out in the future. It is of the essence of an assignment that the parties agree that the assignee shall immediately be the owner of the claim assigned, and shall have power to collect it without further action on the part of the assignor. Because such an agreement was not wholly effectual at law, equity gave effect to and in a sense specifically enforced the agreement of the parties, but such a case must not be confused with one where the parties make an executory agreement to assign in the future. Such an agreement is not in itself an assignment.23 Nor is an agreement to pay out of a particular fund an assignment of the fund or of any part of it to the promisee. 24 "The test, even of an equitable assignment, whether the debtor would be justified in paying the debt or the portion contracted about to the person claiming to be assignee."25 The distinction to be drawn 23 In re Stiger, 202 Fed. 791; National City Bank v. Torrent, 130 Mich. 259, 89 N. W. 938; State v. Lindsay, 73 Mo. App. 473; Arents v. Long Island R. Co., 36 N. Y. App. Div. 379, 382, 55 N. Y. S. 401; Lauerman Bros. Co. v. Riehl, 156 Wis. 12, 145 N. W. 174. See also Hale v. First Nat. Bank, 50 Ia. 642. 24 Christmas v. Russell, 14 Wall. 69, 20 L. Ed. 762; Dillon v. Barnard, 21 Wall. 430, 22 L. Ed. 673; Trist v. Child, 21 Wall. 441, 22 L. Ed. 623; Removal Cases, 100 U. S. 457, 25 L. Ed. 698; Smedley v. Speckman, 157 Fed. 815, 85 C. C. A. 179; Maier v. Freeman, 112 Cal. 8, 44 Pac. 357, 53 Am. St. Rep. 151; De Winter v. Thomas, 34 App. Cas. D. C. 80, 27 L. R. A. (N. S.) 634; Kelley v. Newman, 79 Ill. App. 285; Stearns v. Quincy Mut. Fire Ins. Co., 124 Mass. 61, 63, 26 Am. Rep. 647; Hale v. Dressen, 76 Minn. 183, 78 N. W. 1045; Fairbanks v. Welshans, 55 Neb. 362, 75 N. W. 865; Phillips v. Hogue, 63 Neb. 192, 88 N. W. 180; Lanigan v. Bradley and Currier Co., 50 N. J. Eq. 201, 205, 24 Atl. 505; Williams v. Ingersoll, 89 N. Y. 508, 518; Addison v. Enoch, 48 N. Y. App. Div. 111, 62 N. Y. S. 613, affd., 168 N. Y. 658, 61 N. E. 1127; Holmes v. Bell, 133 N. Y. App. D. 455, 124 N. Y. S. 301, affd., 200 N. Y. 586, 94 N. E. 1094; Donovan v. Middlebrook, 95 N. Y. App. Div. 365, 88 N. Y. S. 607; Bank of New Hanover v. Williams, 79 N. C. 129; Christmas' Adm. v. Griswold, 8 Oh. St. 558; Davis v. State Nat. Bank (Tex. Civ. App.), 156 S. W. 321, 327; Hicks v. Roanoke Brick Co., 94 Va. 741, 27 S. E. 596; Feamster v. Withrow, 9 W. Va. 296; Dirimple v. State Bank, 91 Wis. 601, 65 N. W. 501. See also Wylie's Appeal, 92 Pa. 196; Evans v. Rice, 96 Va. 50, 30 S. E. 463. But see Durham v. Robertson, [1898] 1 Q. B. 765, 769. 25 Donovan v. Middlebrook, 95 N. Y. App. Div. 365, 367, 88 N. Y. S. 607; citing Fairbanks v. Sargent, 117 N. Y. 320, 22 N. E. 1039, and see Trist v. Child, 21 Wall. 441, 444, 22 L. Ed. 623; Randel v. Vanderbilt, 75 N. Y. App. D. 313, 318, 78 N. Y. S. 124; Davis v. State Nat. Bank (Tex. Civ. App.), 156 S. W. 321. See also Schubert v. Herzberg, 65 Mo. App. 578, and cases cited in the two preceding notes. In Hargett v. McCadden, 107 Ga. 773, is between a promise that the promisor will pay out of a particular fund and an agreement that the promisee may collect a particular fund, or part of it, and may pay himself when he has collected. Therefore a promise to an attorney that he shall have as his compensation a certain share or payment out of a fund in litigation creates a valid partial assignment if the attorney is to collect the claim and pay himself by retaining his fee. 26 Whereas if the fund is to come into the hands of the client, and he is to make the payment, there is only a contract right.27 § 429. Whether promises to assign or to pay out of a fund create equitable liens. Where there is only a promise to collect and pay the promIsee when the collection is made, or a promise to make an assignment in the future, a claim to the fund, if allowed, must be based on the theory of an equitable lien given by the specific enforcement of a contract rather than on that of a present assignment; and to make it possible to contend that such enforcement should be given, it must first be established not only that a promise was made, but that such consideration was given for it as to fulfil the ordinary requirements of the law. A 775, 33 S. E. 666, the court reached a contrary conclusion quoting from Jones v. Glover, 93 Ga. 484, 487, 21 S. E. 50. "In order to infer an equitable assignment, such facts or circumstances must appear as would not only raise an equity between the assignor and assignee, but show that the parties contemplated an immediate change of ownership with respect to the particular fund in question, not a change of ownership when the fund should be collected or realized, but at the time of the transaction relied upon to constitute the assignment." But the true test is whether an immediate power is given to collect the money when it is due. If an immediate change of ownership must necessarily have been contemplated, an assignment of a future claim would never be possible unless the parties conceived themselves able to transfer immediately ownership to something not then existing. Cf. Kingsbury v. Burrill, 151 Mass. 199, 24 N. E. 36. 26 Wylie v. Coxe, 15 How. 415, 14 L. Ed. 753; In re Paschal, 10 Wall. 483, 19 L. Ed. 992; Canty v. Latterner, 31 Minn. 239, 17 N. W. 385; Terney v. Wilson, 45 N. J. L. 282; Marshall v. Meech, 51 N. Y. 140, 10 Am. Rep. 572; Wright v. Wright, 70 N. Y. 98; Patten v. Wilson, 34 Pa. St. 299; Milmo Nat. Bank v. Convery, 8 Tex. Civ. App. 181, 27 S. W. 828. 27 De Winter v. Thomas, 34 App. Cas. D. C. 80, 27 L. R. A. (N. S.) 634. In Ingersoll v. Coram, 211 U. S. 335, 29 S. Ct. 92, 53 L. Ed. 208, however, it was held a lien was created though the payment was to be made by the |