20. But the assignee may sue in the assign or's name, and the assignment will be con sidered valid in equity. See infra.
In equity, as well as at law, some chosen in action are not assignable on the ground that they are against public policy, as an officer's pay, or commission; 2 Anstr. 533; 1 Ball & B. Ch. 387; 1 Swanst. 74 ; Schwenk v. Wyckoff, 46 N. J. Eq. 560, 20 Atl. 259, 9 L. R. A. 221, 19 Am. St. Rep. 438; or the salary of a fudge; Morrison v. Deaderick, 10 Humphr. (Tenn.) 342; 5 Moore, P. C. 0. 219; contra, State v. Hastings, 15 Wis. 78; or of unearned pay of public officers generally ; Bliss v. Lawrence, 58 N. Y. 442, 17 Am. Rep. 273; Bowery Nat. Bank of New York v. Wil son, 122 N. Y. 478, 25 N. E. 855, 9 L. R. A. 706, 19 Am. St. Rep. 507; Inhabitants of Wayne Township v. Cahill, 49 N. J. L. 144, 6 Atl. 621; Schloss v. Hewlett, 81 Ala. 266, 1 South. 263 (but see contra, Johnson v. Pace, 78 111. 143; Manly v. Bitzer, 91 Ky. 596, 16 S. W. 464, 34 Am. St. Rep. 242; Brackett v. Blake, 7 Mete. [Mass.] 335, 41 Am. Dec. 442; and also August v. Crane, 28 Rep. 549, 59 N. Y. Supp. 583; and Ciples v. Blair, Rice Eq. [S. C.] 60, where costs and fees were distinguished from sal ary and held assignable) ; or claims for fish ing or other bounties from the government ; or rights of action for fraud or tort as a right of action for assault; or in trover; Gardner v. Adams, 12 Wend. (N. Y.) 297 (caner of a right of action in replevin; Foy v. R. Co., 24 Barb. [N. Y.] 382) ; or of the sale of fish not yet caught; Low v. Pew, 108 Mass. 350, 11 Am. Rep. 357; assignment by a prosecuting attorney; Ho Thurman, 111 Ky. 84, 63 S. W. 280, 98 t. Rep. 399; or by a sheriff to secure a promissory note; Bow ery Nat. Bank v. Wilson, 122 N. Y. 478, 25 N. E. 855, 9 L. R. A. 706, 19 Am. St. Rep. 507; a cause of action for deceit is assignable; Dean v. Chandler, 44 Mo. App. 338; and it seems that all rights of action which would survive to the personal representatives, may be as signed ; Butler v. R. Co., 22 Barb. (N. Y.) 110; Patten v. Wilson, 34 Pa. 299; Jordan v. Gillen, 44 N. H. 424; Walton v. Rafel, 7 Misc. 663, 28 N. Y. Supp. 10; so of a right of action against a common carrier for not delivering goods; Jordan v. Gillen, 44 N. H. 424; or for Injury to goods; Norfolk & W. R. Co. v. Read, 87 Va. 185, 12 S. E. 395. It is well settled that a mere expectancy or possibility is not assignable at law, conse quently wages to be earned in the future, not under an existing engagement, but under engagements subsequently to be made, are not assignable; Herbert v. Bronson, 125 Mass. 475; Bell v. Mulholland, 90 Mo. App. 612; Lehigh Valley R. Co. v. Woodring, 116 Pa. 513, 9 Atl. 58. If there is an existing employment under which it may reasonably be expected that the wages will be earned, then the possibility is coupled with an in terest and the wages may be assigned; Rod ijkeit v. Andrews, 74 Ohio St. 104, 77 N. E. 747, 5 L. R. A. (N. S.) 564, 6 Ann. Cas. 761; Mallin v. Wenham, 209 Ill. 252, 70 N. E. 564, 65 L. R. A. 602, 101 Am. St. Rep. 233; Edwards v. Peterson, 80 Me. 367, 14 Atl. 936, 6 Am. St. Rep. 207; Metcalf v. Kincaid, 87 Ia. 443, 54 N. W. 867, 43 Am. St. Rep. 391; Peterson v. Ball, 121 Ia. 544, 97 N. W. 79 ; Bell v. Mulholland, 90 Mo. App. 612; Kane v. Clough, 36 Mich. 436, 24 Am. Rep. 599; Manly v. Bitzer, 91 Ky. 596,16 S. W. 464, 34 Am. St. Rep. 242; Schilling v. Mullen, 55 Minn. 122, 56 N. W. 586, 43 Am. St. Rep. 475 ; Augur v. Packing Co., 39 Conn. 536; Gar land v. Harrington, 51 N. H. 409 ; Mulhall v. Quinn, 1 Gray (Mass.) 105, 61 Am. Dec. 414; and this is true though the employment is for no definite period and may be terminated at any time by either party ; Thayer v. Kel ley, 28 Vt. 19, 65 Am. Dec. 220. The distinc tion between the two classes of cases is well illustrated where a workman assigned all the wages he would earn in a year from his then employer, and having left that em ployment for two months and afterwards re turned to it, the wages of the second employ ment did not pass, being considered as a mere possibility ; O'Keefe v. Allen, 20 R. 1.
414, 39 Atl. 752, 78 Am. St. Rep. 884. It has been suggested that to prevent the assign ment of future earnings is in accordance with public policy; Woodring v. R. Co., 2 Pa. Co. Ct. 465; but while that is approved, it is suggested that such a policy must be a matter of legislative intervention ; 14 Harv. L. Rev. 379. The assignment by a master in chancery of his unearned fees is void; Shannon v. Bruner, 36 Fed. 147; as is the assignment by an executor of his fees before they are ascertained and fixed; In re Worthington, 141 N. Y. 9, 35 N. E. 929, 23 L. R. A. 97. A cause of action for malicious prosecution is not assignable even after ver dict; Lawrence v. Martin, 22 Cal. 174; But ler v. R. Co., 22 Barb. (N. Y.) 110; North v. Turner, 9 S. & R. (Pa.) 244; 6 Madd. 59; 2 M. & K. 592; nor is a right to recover damages for false imprisonment; Hunt v. Conrad, 47 Minn. 557, 50 N. W. 614, 14 L. R. A. 512; nor any rights pendente lite. Nor can personal trusts be assigned; Arkansas Valley Smelting Co. v. Min. Co., 127 U. S. 379, 8 Sup. Ct. 1308, 32 L. Ed. 246; as the right of a master in his apprentice; Graham v. Kinder, 11 B. Monr. (Ky.) 60; Davis v. Coburn, 8 Mass. 299; or the duties of a tes tamentary guardian; Balch v. Smith, 12 N. H. 437; nor a contract for the performance of personal services; Halbert v. Deering, 4 Litt. (Ky.) 9; or one involving a relation of Personal confidence; Burck v. Taylor, 152 U. S. 634, 14 Sup. Ct. 696, 38 L. Ed. 578 ; or one which couples the delegation of a duty with the transfer of a right. This was sub, stantially the ground of the case of Boston Ice Co. v. Potter, in 123 Mass. 28, 25 Am. Rep. 9, where a contract to supply merchan dize was held not assignable since "a man has the right to determine with whom he shall contract," which case has been much dis cussed, and its name coupled with the doc trine declared by it ; see 7 Columbia L. Rev. 32 ; 20 Harv. L. Rev. 424. In England courts have gone farther, holding that a contract was not assignable when the result would be to impose on one party a greater liability than be intended to assume ; [1901] 2 K. B. 811, where a contract to supply a small com pany was held not assignable to a powerful company with larger capital which would require much larger supplies, the court ex pressly declining to "accept the contention that only those contracts in which personal confidence or ability is involved cannot be assigned." An invention may be transferred by parol; Jones v. Reynolds, 120 N. Y. 213, 24 N. E. 279 ; every patent or interest there in is assignable ; R. S. U. S. § 4898 ; an as signment of a contingent remainder for a valuable consideration, while void in law, is enforceable in equity ; Watson v. Smith, 110 N. C. 6, 14 S. E. 640, 28 Am. St. Rep. 665. An assignment of the proceeds of sale of merchandize to be delivered in the future, where no contract exists requiring such de livery by the assignor, is not valid, even though notice of it was accepted by the as signee, and the amount actually due was not secured from garnishment by a creditor of the assignor ; O'Niel v. Kerr Co., 124 Wis. 234, 102 N. W. 573, 70 L. R. A. 338. But a valid assignment may be made of a portion of the contract price of a building contract ed to be erected by the assignor, but not yet erected, and such assignment need not be in writing nor accompanied by any transfer of I the contract itself ; Lanigan's Adm'r ,v. Cur rier Co., 50 N. J. Eq. 201, 24 Atl. 505. In the assignment of a chose in action it is essential that it be delivered; Lewis v. Mason's Adm'r, 84 Va. 731, 10 S. E. 529 ; Hodenpuhl v. Hines, 160 Pa. 466, 28 Atl. 825; a partial assignment of choses in action is good in equity, although the legal title re mains in the assignor ; Texas Western Ry. Co. v. Gentry, 69 Tex. 625, 8 8. W. 98; the assignment of a fractional part of a claim is good, where the party who is to pay does not object ; Kingsbury v. Burrill, 151 Mass. 199, 24 N. E. 36.