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kicking out the intruder, leaving him to his legal remedy.

IN

NOTES OF CASES.

N Re Duzer, Chan. Div., 54 L. T. Rep. (N. S.) 134, the question was as to a trade-mark in "Melrose Favorite Hair Restorer." Bacon, V. C., said: "The question before me is whether this manufacturer, the present applicant, who for many years has sold his commodity under the trade name which he is now desirous of having registered, is prevented by thisact from having it so registered because one of the words which he has used as part of the name is said to be a fancy word in common use There are innumerable instances of the sale of particular commodities with all sorts of distinct appellations not necessarily geographical names. In particular in the perfumery trade, there have been for centuries all sorts of purely fanciful names which have been given to various commodities. The argument here is, that inasmuch as Melrose is a well

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of debt collecting is doomed! County court practitioners may tremble in their shoes, and 'gentlemen who never pay their tailors' bills may prepare to encounter a new infliction! For according to a circular which it is announced has been issued to the traders of Birmingham, a system of recovering debts is about to be inaugurated which threatens to put all others in the shade. The name of the new undertaking is 'The Birmingham Uniformed Collection Agency,' and its object is described as being the recovery of bad, doubtful or troublesome debts.' The circular, after mentioning the difficulty which exists in recovering debts by ordinary legal methods from people who do not wish to pay, continues: 'Why is this? Because there is no actual publicity in county court actions which can shame such an individual in the eyes of his neighbors, as would be the case from the repeated visits of the uniformed gentlemen who will act as our collectors. Yes, we intend to make life very pleasant for the man who owes debts around this neighborhood, and is able to pay, but wont. We are in business to collect accounts from just such custo-known place, and one which has a geographical sigmers, and if there is one who does not come down after we have turned our batteries on him, we are afraid it will be an awkward case. The way of the Uniformed Collection Agency (this title is copyright) is this: Such persons as desire our services become subscribers to our plan, and pay a fee of 58. per annum. When the agency receives a case, an ordinary and gentlemanly collector is at once sent to the debtor to solicit payment of the amount due. If this is of no avail we send another collector, who wears a striking uniform with the word 'collector' in very distinct letters on the band of his hat. This collector visits the debtor at his private residence and business address three successive days (if necessary). If the third visit does not result in obtaining the money the collector then wears a hat on the band of which are the words 'Collector of Doubtful Debts.' His orders are to call daily on the debtor, both at his private residence and place of business, and demand payment as often as is necessary. These calls soon attract the attention of the neighbors, and become the talk of the neighborhood — the very effect our agency aims at, and the very shame of which produces the desired effect; for who could boldly face more than half a dozen calls from the gentleman with the suggestive uniform and hatband? The consequence is that an arrangement satisfactory to the creditor is almost always effected.'" We shall await the working of this society with interest. It occurs to us that the law will hardly regard a nuisance for the collection of debts as legal. It was recently held libellous to advertise in a newspaper a "want" for a debtor to pay a bill (Zier v. Hoflin, 33 Minn. 66; S. C., 53 Am. Rep. 9), and in another case it was held libellous to exhibit furniture as for sale to pay a "deadbeat's" account. There are legal ways of collecting accounts, and if they are unsuccessful the debtor is entitled to protection against such annoyances. Probably in most cases he will protect himself by

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nification, it ceases, when applied to a bottle of
pomatum, to be a fanciful expression. In my opinion
it is proved to be a fanciful expression, and not one
which is in common use in connection with the
commodity to which it is applied. * * That
the word may have a different signification nobody
will dispute, but I am asked whether upon this la-
bel, which is now sought to be registered, the word
'Melrose' is descriptive of a place. I say that it is
not; it neither is, nor was it meant to be so. If
therefore it is not descriptive of a certain geo-
graphical spot, can it be any thing but a fancy
word? What connection has this commodity with
Melrose? Upon a mere fancy he puts this name
and mark upon the commodity which he sells, so
that all the world may know that he is the manu-
facturer, and nobody else. It has been sold for
many years in the public market under that name
which he has adopted, and which is the very thing
which the act of Parliament says may be regis-
tered. It is a 'fancy word not in common use in
the trade in the goods with respect to which the
application is made.' Cases have been cited more
or less resembling that which is now before me, but
the case which was before Chitty, J., seems to me
to be as directly in point as any thing can be. I
can perceive no difference in substance between that
case and the one before me, and I do not differ in
the slightest degree from the decision of the
learned judge in that case. He had there, as I
have here, to construe the words of the act of Par-
liament; he had to find out, as I have to find out,
whether a word was a fancy word or a geographi-
cal word, and he came to the conclusion, in regard
to the word which was before him, as I do now
without hesitation with regard to the word 'Mel-
rose,' that it is not a geographical description, but
that it is a purely fanciful word; just as much a
fanciful word as 'Eureka' or 'Opoponax,' or any
other similar word, when applied to a particular

commodity, and that it is meant only to designate their commodity. It cannot be said that any perfumery in Melrose would be injured by this particular commodity being called Melrose. He could not adopt it there because it would not be a fancy word in regard to that particular trade, but he may choose any other word he likes. Any inhabitant may make Melrose horseshoes as much as he likes, but this particular word in connection with perfumery has become the absolute property of the present applicant. I do not rely at all upon the practice which has been followed in the comptroller's office, but it appears from the schedule to one affidavit that there are many instances in which the names of places have been registered. Now it has been discovered that there may be a difficulty in regard to such cases, and the comptroller says that the name of a place is objectionable. In my opinion the present applicant is perfectly well entitled to have his trade-mark of 'Melrose Favorite Hair Restorer' registered. The whole expression is a compound one, of which Melrose is one of the adjectives. It is a trade name or mark for the hair restorer of that particular name, and no other. I think therefore that the application to register must be granted." See note, 37 Am. Rep. 594.

transmit them in cars separate from those devoted to the carriage of freight, and this result can only be accomplished by requiring the carrier, on the one hand, and the passenger upon the other, to refrain from making passenger cars the receptacle for merchandise. Plaintiff must be presumed to know the legal effect of the contract he had made, and to be subject to its terms, conditions and limitations equally with the defendant. The fact that for ten years the defendant had permitted the county treasurers of Santa Clara county to carry with them upon its passenger trains the money which they were by law required to pay over to the State treasurer, neither enlarged nor abridged the contract between it and plaintiff. If defendant was not legally bound to extend this favor, its liberality to others, or to plaintiff himself, could not be urged as a binding rule for the continuance of such practice. The theory of plaintiff that by having accepted him as a passenger with knowledge of the money he had with him, the defendant became a common carrier of him and his money, though he retained possession of the latter, is not sustained by the authorities cited. Minter v. Pac. R. Co., 41 Mo. 504; Butler v. H. R. R. Co., 3 E. D. Smith, 571; Stoneman v. Erie R. Co., 52 N. Y. 429; Sloman v. Great Western R. Co., 67 id. 208; and Hannibal R. Co. v. Swift, 12 Wall. 262 were all cases in which the property was delivered to the carrier, and although not baggage, it was held that having received it with knowledge that it was not the ordinary traveling baggage of the passenger, the liability of a common carrier attached. We are clearly of opinion that the defendant was under no obligation, by virtue of its contract of passage with plaintiff as an individual, to permit him to carry with him in its passenger car the sum of money indicated, in the manner indicated, and weighing, as it must have done, between three and four hundred pounds. See note, 34 Am. Rep. 379.

In Pfister v. Central Pac. R. Co., California Supreme Court, July 19, 1886, it was held that a railroad company is not responsible for $92,000 in gold coin in satchels of a passenger as "luggage." The court said: "The right of plaintiff as a passenger must be determined by the contract he made with defendant. He purchased four first-class passenger tickets from San Jose to Sacramento, which entitled him and his three employees to transportation in the first-class passenger coaches of defendant between the points indicated, and gave to them a right to have their luggage, not exceeding one hundred pounds to each person, transported at the same time free of charge. It gave to them no right to travel in a baggage, express or freight car, but in the regular passenger car or cars of the defendant, and the contract gave to them no right to transport, either in their own charge or that of the defendant, any merchandise or property not included in the term 'luggage.' The law takes no note of what property a passenger carries upon his person, but beyond this he may not, by virtue of his contract for passage, carry, either free of charge or by paying an extra charge, property not included within the import of the term 'luggage.' Were it§ 268, note, and said: "The occurrence of an injury otherwise, it would be within the power of the passenger to convert the passenger coaches of a railroad company into vans for the transportation of merchandise, or to compel the carrier to do much the same thing by furnishing baggage cars for the conduct of ordinary freight. The orderly and expeditious transit of passengers and their baggage renders it necessary and proper for the carriers engaged in their transportation to run separate trains for their accommodation, or at least to furnish and

In Lawrence v. Green, California Supreme Court, August 17, 1886, it was held that where a plaintiff shows that he was injured by the overturning of a coach, caused by the breaking of one of its wheels while it was being driven round a curve, down grade, on a mountain road, where one side of the track was about a foot lower than the other, he has made out a prima facie case. The court cited Christie v. Griggs, 2 Camp. 79; Dawson v. Manchester, etc., R. Co., 5 L. T. Rep. (N. S.) 682; Shear. & R. Neg.,

through a defect in the vehicle is at least prima
facie evidence of negligence on the part of the car-
rier.
Shear. & R. Neg., § 268. The carrier must
have carriages adequate to the work to which they
are subjected, and must see that they are kept in
due repair. Whart. Neg., §§ 628, 629. But the
carrier is not liable for damages incurred through
latent defects which could not have been discov-
ered by examination, and which are not traceable
to any want of good business diligence in the man-

ufacturer.

Whart. Neg., § 631. The negligence | surance Co., 69 N. Y. 193; Hill v. Insurance Co., 10 Hun, 26."

of the defendants was established prima facie by proof that the wheel broke, and the coach was thus overturned, and there was no evidence to overcome the prima facie case-no evidence that the wheel was sound, or that the defect was latent. As the case was presented, was the court authorized to charge the jury upon the hypothesis that the accident would have happened if there had been no defect in the wheel? The fact that the road was a foot lower on the inner side did not perhaps prove, nor tend to prove, that the wheel was a good wheel. It left the unsoundness of the wheel still uncontested, and simply showed that the unsound wheel broke when subjected to the strain, or to the slide or lurch of the coach on the uneven ground. If the condition of the road was merely sufficient to create a suspicion that a sound wheel might have been broken under the circumstances, the jury would not be justified in acting upon a mere surmise or conjecture of the existence of a possible fact of which there was no real evidence. But even if it should be conceded that evidence that one side of the road was lower than the other, and that the coach lurched toward the lower side, tended to overcome the prima facie case of the plaintiff, it was for the defendants to overcome it. The defendants could not overcome the plaintiff's case, and show that the accident was not the result of their carelessness or negligence, except by proving how the accident did occur, and that it did not occur by reason of a defect in the wheel, or that such defect was latent." See 47 Am. Rep. 75.

CON

COMMON WORDS AND PHRASES.

INSOLVENCY.-In Daniels v. Palmer, Minnesota Supreme Court, July 6, 1886, the court said: "The term 'insolvency' is not always used in the same sense. It is sometimes used to denote the insufficiency of one's entire property and assets to pay all his debts. This is its popular and most general meaning. Herrick v. Borst, 4 Hill, 650. But it is also used, in a more restricted sense, to express the inability of a person to pay his debts in the ordinary course of business. This is the sense in which it has been invariably held to have been used in all the various bankrupt acts of England and America. In Bayly v. Schofield, 1 Maule & S. 338, it is said:

Insolvency,' as respects a trader, means that he is not in condition to pay his debts in the ordinary course, as persons carry on trade usually do; and it does not follow that he is not insolvent because he may ultimately have a surplus upon the winding up of his affairs.' So, in Shone v. Lucas, 3 Dowl. & R. 218, it is said: 'Insolvency,' within the meaning of the bankrupt laws, does not mean an inability to pay twenty shillings on the pound when the affairs of the bankrupt shall be ultimately wound up; but a trader is in insolvent circumstances when he is not in condition to pay his debts in the usual and ordinary course of trade.' The same definition has been given of the term as used in the insolvent law of Massachusetts, which, in respect to the matter now under consideration, is very similar to our own. In Thompson v. Thompson, 4 Cush. 127, Shaw, C. J., says: 'By the term 'insolvency,' however, as used in these statutes, we do not understand an absolute inability to pay one's debts at some future time, upon a settlement and winding up of all a trader's concerns; but a trader may be said to be in insolvent circumstances when he is not in a condition to pay his debts in the ordinary course, as persons carrying on trade usually do.' This definition has been repeatedly reasserted by the same court. Lee v. Kilburn, 3 Gray, 594; Vennard v. McConnell, 93 Mass. 561; Barnard v. Crosby, 6 Allen, 327. The same construction has been placed upon the term as used in the late United States bankrupt act. In Toof v. Martin, 13 Wall. 40, the court, after referring to the more general and popular meaning of the word 'insolvency,' add: But it is also used in a more restricted sense to express inability of a party to pay his debts, as they become due, in the ordinary course of business. It is in the latter sense that the term is used when traders and merchants are said to be 'insolvent,' and as applied to them, it is in the sense intended in the act of Congress.' To the same effect, see Wager v. Hall, 16 Wall. 599; Buchanan v. Smith, id. 308; Dutcher v. Wright, 94 U. S. 557; Merchants Bank v. Cook, 95 id. 342."

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YONTIGUOUS.-In Olson v. St. Paul Fire & Marine Ins. Co., Minnesota Supreme Court, July 14, 1886, it was held that a building erected at a distance of twenty-five feet is not to be construed as contiguous to another. The court said: "The situation of the buildings in question was not such as to warrant the court in adjudging them to be 'contiguous.' The term must be given its proper definition and meaning, as commonly received and understood, to the end that policyholders may not be misled or left in doubt as to their duty. See Webst. Dict., 'contiguous' and adjacent.' Plaintiff's building was separated and detached from other buildings when insured. It in fact remained so when destroyed. But the defendant insists that the term 'contiguous,' as here used, does not mean merely adjoining or immediate proximity, but that it is also applicable to objects near by,' and that, upon the facts of this case, it should be held that the shop was sufficiently near to be within the condition. This construction is not ad- WAGON. A hearse is a wagon. In Spikes v. missible. The matter would be left altogether too Burgess, 65 Wis. 428, the court said: "The simple doubtful and ambiguous for the protection of the question presented is whether a 'hearse' may be assured. We cannot hold that a building twenty-exempt from 'seizure or sale on execution' against five or any particular number of feet from a de- the owner. The hearse is claimed to be a tached dwelling is contiguous to it. Arkell v. In-wagon' within the meaning of this statute. It is

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THIS was a bill in equity by Edward B. James, set

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ting forth that one William H. Stewart had made a contract with the defendant city to build a schoolhouse; that Stewart entered upon said contract, and cially embarrassed on June 13, 1884; that a meeting of had nearly fulfilled the same, when he became finanhis creditors was held, and they voted to accept the offer of said Stewart, to pay the sum of twenty cents on the dollar in full settlement of their respective claims; that on June 21, 1884, for the purpose of en

described as a regular four-wheeled wagon - the. running gear being the same as any other wagon with a frame inclosed on the top, and with glass sides, front and back, and used exclusively for a hearse for carrying bodies to the cemetery. 'It is a carriage for conveying the dead to the grave.' Webst. Dict. It is the superstructure which adapts it to this particular use, and the use which gives it the particular name. But the question of exemp-abling him to carry out his contract with said city, tion is not dependent upon any distinctive use. The privilege of claiming a wagon as exempt is not confined to persons engaged in agricultural pursuits, nor any particular class of business. Knapp v. Bartlett, 23 Wis. 68. The learned counsel for the defendant admits that the privilege of exemption extends to every owner of a wagon, but insists that no vehicle can be a wagon, within the meaning of the statute, unless it is adapted to farm purposes, or the carriage of ordinary freight or commodities, or ⚫ living persons. Undoubtedly such a vehicle may be a wagon, but the term is general, and there are a variety of wagons, differing ir. style, form and dimensions, depending upon the character of the use, the nature of the business, and the pleasure or notions of the manufacturer or owner. 'A carriage or vehicle with four wheels' is a wagon. Worc. Dict. It simply means 'a wheeled carriage; a vehicle on four wheels, and usually drawn by horses; especially one used for carring freight.' Webst. Dict. 'A vehicle moved on four wheels, and usually drawn by horses.' Imperial Dict. The running gear of the hearse has the essentials of a wagon. With an ordinary superstructure no one would claim it was not a wagon. The character and style of the superstructure were merely to make it serviceable and attractive in a particular and very necessary line of industry. The mere fact that the superstructure differed from superstructures on most wagons did not prevent it from being a wagon. For the reasons given we hold it was a wagon."

OBLOQUY. This means censure and reproach. Bettner v. Holt, California Supreme Court, July,

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and to fulfill his agreement with the several creditors, the said Stewart applied to said James for a loan of money, whereupon the said James, in good faith and for the purpose aforesaid, let him have $575, and took an assignment of the sum of $600, due and to become due to said Stewart from the said city of Newton, and immediately thereupon the said James notified the said city of said assignment; that on June 26, 1885, said Stewart, by reason of the agreement of certain creditors to accept the offer of twenty cents on the dollar, filed a petition in insolvency in the county of Middlesex, and on July 10th following said Gilkey was duly elected assignee of said Stewart; that before and after the filing of his said petition said Stewart expended the greater portion of said $575 in further completion of his contract with the city, and made a proper and legitimate use of all of said sum; that at the time of filing said petition there was due said Stewart, under said contract, the said sum of $600 or more, though not then payable; that afterward the contract was completed, and a much larger sum became due, the most of which sum had been paid to said Gilkey as assignee, the said city reserving, on account of this assignment, a sum sufficient to pay the same; that said city has been ready and willing to make a severance of the sum due under said contract, to pay the said James the amount of said assignment, and the said Gilkey the balance, if it could legally do so, but has been forbidden so to do by said Gilkey, who as assignee aforesaid claimed the whole amount due under said contract. The prayer of the bill was, among other things, that the said city of Newton be enjoined from payment of the sum of $600 to the said Gilkey until the further order of the court, and that the sum of $600 might be decreed to be paid to the plaintiff by the said city of Newton.

Said James and said Stewart, at the time of the execution of the assignment or order, knew that said Stewart was actually insolvent, and had called a meeting of creditors, and that they had voted to accept twenty cents on the dollar of their claims. Said Stewart represented to said James that he was obtaining this money to assist him to complete the contract, and to effect the composition of twenty cents on a dollar, and assured him that he could do so. No action or vote was ever had or taken upon said assignment by the city of Newton, by the city council or either branch thereof, by any committee, or by any person authorized to bind the city. The assignee. Gilkey, when he was appointed, had substantially no fuuds of the estate of said Stewart in his possession, and in order to complete said contract, expended about $1,200 of his own funds, in labor and materials, in finishing the building, and paid off, out of the funds in the hands of the city, eventually paid him, mechanics' liens thereon amounting to about $500 besides. Said James actually paid and loaned to said Stewart the sum of $575 at the time of the execution of the assignment, which was the sum agreed upon between the two.

Hearing in the Superior Court before Knowltou, J., who reserved the case for the consideration of the full court.

C. C. Powers, for complainant.

W. S. Slocum, for defendant city of Newton. W. B. Durant, for defendant, Gilkey, assignee. FIELD, J. The assignment in this case is a formal assignment, for value, of "the sum of six hundred dollars now due and to become due and payable to me" from the city of Newton under and by virtue of a contract for building a grammar-school house, and it is agreed that this sum "shall be paid out of the money reserved as a guaranty by said city," and the assignee is empowered "to collect the same." There is no doubt that it would operate as an assignment to the extent of $600 if there can be an assignment, without the consent of the debtor, of a part of a debt to become due under an existing contract; and the cases that hold that an order drawn on a general or a particular fund is not an assignment pro tanto unless it is accepted by the person on whom it is drawn, need not be noticed. That a court of law could not recognize and enforce such an assignment except against the assignor, if the money came into his hands, is conceded. The assignee could not sue at law in the name of the assignor, because he is not an assignee of the whole of the debt. He could not sue at law in his own name, because the city of Newton has not promised him that it will pay him $600. The $600 is expressly made payable "out of the money reserved as a guaranty by said city," and by the contract, the balance reserved was payable as one entire sum, and at law a debtor cannot be compelled to pay an entire debt in parts, either to the debtor or to assignees of the debtor, unless he promise to do so. Courts of law originally refused to recognize any assignments of choses in action made without the assent of the debtor; but now, for a long time, they have recognized and enforced assignments of the whole of a debt, by permitting the assignee to sue in the name of the assignor under an implied power which they held to be irrevocable. Partial assignments such courts have never recognized, because they hold that an entire debt cannot be divided into parts by the creditor without the consent of the debtor. It is not wholly a question of procedure, although the common-law procedure is not adapted to determining the right of different claimants to parts of a fund or debt. The rule has been established, partially at least, on the ground of the entirety of the contract, because it is held that a creditor could not sue his debtor for a part of an entire debt; and if he brought such an action, and recovered judgment, the judgment was a bar to an action to recover the remaining part. There must be distinct promises in order to maintain more than one action. Warren v. Comings, 6 Cush. 103.

It is said that in equity there may be, without the consent of the debtor, an assignment of a part of an entire debt. It is conceded, that as between assignor and assignee, there may be such an assignment. The law, that if the debtor assents to the assignment in such a manner as to imply a promise to the assignee to pay to him the sum assigned, then the assignee can maintain an action, rests upon the theory that the assignment has transferred the property in the sum assigned to the assignee as the consideration of the debtor's promise to pay the assignee, and that by the promise, the indebtedness to the assignor is pro tanto discharged. It has been held by courts of equity which have hesitated to enforce partial assignments against the debtor that if he brings a bill of interpleader against all the persons claiming the debt or fund, or parts of it, the rights of the defendants will be determined and enforced, because the debtor, although he has not expressly promised to pay the assignee, yet asks that the fund be distributed or the debt paid to the different defendants according to

their rights as between themselves, and the rule 'against partial assignments, established for the benefit of the debtor. Superintendent of Public Schools v. Heath, 15 N. J. Eq. 22; Fourth Nat. Bank v. Noonan, 14 Mo. App. 243.

In many jurisdictions courts of equity have gone further, and have held that an assignment of a part of a fund or debt may be enforced in equity by a bill brought by the assignee against the debtor and assignor while the debt remains unpaid. The procedure in equity is adapted to determining and enforcing all the rights of the parties, and the debtor can pay the fund or debt into court, have his costs if he is entitled to them, and thus be compensated for an expense or trouble to which he may have been put by the assignment. But some courts of equity have gone further, and have held that after notice of a partial assignment of a debt, the debtor cannot rightfully pay the sum assigned to his creditor, and if he does, this is no defense to a bill by the assignees. The doctrine, carried to this extent, effects a substantial change in the law. Under the old rule, the debtor could with safety settle with his creditor, and pay him, unless he had notice or knowledge of an assignment of the whole of the debt; under this rule he cannot, if he have notice or knowledge of an assignment of any part of it. It may be argued, that if a bill in equity can be maintained against the debtor by an assignee of a part of the debt, it must be on the ground not only that the plaintiff has a right of property in the sum assigned, but also that it is the debtor's duty to pay the sum assigned to the assignee, and that if this is so, it follows that after notice of the assignmeut the debtor cannot rightfully pay the sum assigned to the assignor.

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The facts of this case however do not require us to decide whether a bill can be maintained after the debtor has paid the entire debt to his creditor, although after notice of a partial assignment. The city of Newton, in its answer, says, that it is willing to pay said balance to such person or persons as should be justly entitled to receive the same, whether said plaintiff or said Gilkey, as such assignee," and prays "that said plaintiff and said Gilkey may interplead and settle and adjust the demands between themselves, and that the honorable court shall order and decide to whom said sum shall be paid." This is in effect asking the aid of the court in much the same manner as if the city of Newton had brought a bill of interpleader, and the proceedings are not open to the objection that the court is compelling the city of Newton to assent to an assignment against its will. This is the first bill in equity to enforce a partial assignment of a debt which has been before this court. It has been often declared here that there cannot be an assignment of a part of an entire debt without the asseut of the debtor, but the cases are all actions at law, and in the majority of them the statement was not necessary to the decision.

In Tripp v. Brownell, 12 Cush. 376, the action was assumpsit to recover the amount of the plaintiff's lay as a mariner on a whaling voyage. The defense was an assignment of the balance due, made by the plaintiff and accepted by the defendants. This was held a good defense; the court saying: "It is in terms an assignment of the whole lay. It must be so by operation of law. It is not competent for a creditor to assign part of the debt, or create any lien upon it. The debtor or holder of the assignable interest cannot, without his own consent, be held legally or equitably liable to an assignee for part, and to the original creditor or another assignee for another part. Mandeville r. Welch, 5 Wheat. 277; Gibson v. Cooke, 20 Pick. 15; Robbins v. Bacon, 3 Greenlf. 346."

Gibson v. Cooke, ubi supra, was assumpsit, brought

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