49

thus giving jurisdiction to a circuit court of the United States, yet, where the controversy is between citizens of different States, the claimant can assign his claim to a citizen of the same State with the debtor, and thus prevent removing to the circuit court an action brought by the assignee in the State court.

An attorney is prohibited from buying claims for the purpose and with the intent of bringing suits thereon.50 The prohibition of the statute does not, however, extend to disabling him from acting as an assignee to enforce the claim in the interest of his client.51

The inducement frequently existing at common law to assign for the purpose of enabling the original party to testify as a witness no longer exists (save, perhaps, in very exceptional instances) under the New York statute, by which parties and interested witnesses may generally testify, except that assignors of a cause of action equally with the assignee are disqualified from testifying as against the representatives of or those deriving title from a deceased person or person of unsound mind.52 In the assignee's action, however, the assignor is not under the same liability to be examined as a party before trial, as he would have been had he himself sued; but may be compelled to make an affidavit for a motion, which could not be required of him were he a party.

53

3. Form.]— No formality is required in the transfer of a chose in action. An oral assignment is good, though a writing is desirable for the pupose of making proof.54 It is immaterial, as between the assignee and the debtor, whether the transfer was merely colorable and without a consideration, if the legal title has passed.55

49 Crawford v. Neal, 144 U. S. 585; Ashley v. Board of Super., 83 Fed. Rep. 534, 54 U. S. App. 450.

50 Code Civ. Pro., § 73.

51 See Wightman v. Catlin, 113 App. Div. 24, 98 N. Y. Supp. 1071, and cases cited.

52 N. Y. Code Civ. Pro., § 829.

53 See pp. 106, 107 of this volume.

54 Hanes v. Sackett, 56 App. Div. 610, 67 N. Y. Supp. 843. In Paige v. New York, 11 N. Y. Supp. 496, 33 N. Y. St. Rep. 844, the court refused to accept the oral proof of an assignment of monies due under a city contract. 55 Sheridan v. Mayor, 68 N. Y. 30.

FORM No. 267.

Assignment of claim; common form.

In consideration of the sum of [one dollar] to me in hand paid by Y. Z., of receipt whereof is hereby acknowledged, I A. B., of have sold, assigned, transferred, and set over to said Y. Z., his executors, administrators, and assigns, the [withinor, annexed account against M. N.,] together with any and all monies due and to grow due thereon. Hereby giving and granting to said Y. Z. full power and authority to collect, demand, receive and give good and valid acquittance therefor as against me, and in my name or otherwise to sue therefor. Witness my hand this

of

day of

19 .

[Signature.]

[Assignor's acknowledgment, for convenience in proving.]

I, A. B., of

FORM No. 268.

Assignment of cause of action.

for value received56 [or, in consideration

57 dollars received] from Y. Z., of hereby assign, transfer, and set over to said Y. Z. [here describe the claim; for instance, if on contract, annex instrument or bill of items, and then say] the claim or demand due me by M. N., of the within [or, annexed]

on

58 and all interest thereon59 [and said Y. Z., that the sum of day of

I hereby covenant to and with dollars with interest from the -is now due thereon].60

56 This is a sufficient statement of consideration as against the debtor, (Hendrickson v. Beers, 6 Bosw. 639), and if question should arise between the assignee and the assignor, or his creditors, it lets in evidence of the true consideration.

The debtor cannot question the consideration, nor object that there was none. Sheridan v. Mayor, 68 N. Y. 30; Stone v. Frost, 61 N. Y. 614.

57 Even a nominal consideration is enough as against the debtor, but stating only such, has in some jurisdictions been held to preclude evidence of the true consideration, even when offered in support of the instrument. But defendant may of course show that the assignment itself was illegal, as, for instance, that the assignee was an attorney and took the assignment for the purpose of suing. See Cretean r. Foote, 40 App. Div. 215, 57 N. Y. Supp. 1103; Stewart r. Welch,

19 ?

41 Ohio St. 483, 13 Cin. Wkly. L. Bul.

191.

58 An assignment of a debt transfers by implication a judgment or mortgage by which the debt is secured. Batesville Institute r. Kauffman, 18 Wall. 151.

An assignment of a judgment, and of all bonds and instruments taken in connection with the suit, includes a bond given to dissolve an attachment. George v. Tate, 102 U. S. 564. But an assignment of the "within" indorsed on a chattel mortgage does not suffice as an assignment of another title to the mortgaged chattel mentioned within.

59 The right to interest would usu ally be deemed to pass though not mentioned. Jermain . Lake Shore, etc., Ry. Co., 91 N. Y. 483, 493; Hudson Valley R. R. Co. v. O'Connor, 95 App. Div. 6, 88 N. Y. Supp. 742.

60 A covenant that the assignor has the right to assign is implied. Burt

[Another form, appropriate where incidental remedies for fraud, &c., may be involved] all claims and demands of every name, nature, and description that I may now have or be entitled to on account of the fifty shares of the capital stock in the Company which were subscribed for by me.61

[Another form, appropriate for unliquidated damages] all claims and demands for damages arising out of any breach of the covenant against incumbrances contained in a deed of premises situated in executed by M. N., of

dated the

day of

of Conveyances, page

of the county of

N., of

:

to me,

19 and recorded in Liber in the office of the clerk [or, register]

[Or thus] demands arising out of a joint adventure with M. in the purchase and fitting out of the barque , and supplying her with cargo for a voyage to Califor

[Or thus] all claims and demands against M. N., sheriff of County, arising out of his failure to return an execution against the property of O. P., the judgment debtor, in the action of within the time required by law, and by reason of his making a false return to such execution.63

บ.

[Where consent to use the assignor's name is desired, add] And I hereby constitute the said Y. Z. my attorney irrevocable, in my name or otherwise, but at its own proper cost, to take all proper legal measures for the collection thereof.64 WITNESS my hand and seal, this day of In presence of

[Signature of witness.66]

v. Dewey, 40 N. Y. 283. So is a covenant of genuineness of an evidence of debt, and against one's own acts, etc.

61 An assignment in substantially this form was held in Traer v. Clews, 115 U. S. 528, 538, to carry the right to sue for a fraud.

After a cause of action for conversion has accrued an assignment transferring the title to the converted property will enable the assignee to maintain an action upon that cause. McKeage . Hanover Fire Ins. Co., 81 N. Y. 38, aff'g 16 Hun, 239; s. P., Avila v. Lockwood, 98 N. Y. 32.

62 See Byxbie v. Wood, 24 N. Y. 607. where the assignee was held entitled to recover for money had and received, and, it seems, would have been entitled to recover for fraud.

19

[Signature.] [Seal.65].

63 See Jackson v. Daggett, 24 Hun, 204, where Zabriskie v. Smith, 13 N. Y. 322, as to the test of assignability, was criticised and not followed; and see Moore v. McKinstry, 37 Hun, 194.

64 The assignor of a chose in action cannot interfere with the rights of the assignee in a suit thereon, be the assignment either legal or equitable. Mandeville v. Welch, 5 Wheat. 277.

65 A seal is not necessary, even if the assignment affects an interest in real estate in New York. Real Prop erty Law, § 207; Horner v. Wood, 15 Barb. 371.

66 Acknowledgment by assignor is better than attestation by witnesses.

FORM No. 269.

Another form: - Assignment of share of attorney's contingent interest, to secure funds in prosecuting claims.67

Memorandum of agreement, made by and between A. B., of and Y. Z., of

:

WHEREAS, Said A. B. is acting as attorney for R. M., by authority of substitution from said M., who is acting as attorney in fact for M. S., and for M. P., the guardian of M. M., all of and whereas, said A. B. is desirous of the aid of said Y. Z. in an advance of money to the said A. B., to pay [specify ing expenses] to sustain the claim of said M. S. and M. P. against the government of for robbery and destruction of the lives of those whom they represent, under the treaty made between the

and the

on the

day of 19, and to prosecute said claim before a commission appointed by and between the two said nations, and now in session in the city of ; and whereas said A. B., by his agreement with the said claimants, is entitled to one-half of any amount to which he may establish claim before said commission, said A. B., in consideration of hereby agrees to, and does hereby assign unto the said Y. Z., one-half of the amount he is or shall be entitled to receive under and by virtue of his employment in the premises.

In WITNESS whereof we have hereunto set our hands [and seals] respectively, this day of

In presence of

19

[Signatures.] [Seals if desired.]

[Signature of witness].

67 Adapted from Peugh v. Porter, 112 U. S. 737, where such a contract was held valid in equity, though made before establishment of the claim and creation of the fund. See also Wilkinson v. Tilden, 14 Fed. Rep. 778, and note. Such assignments are viewed with suspicion and scrutinized closely; but being sometimes necessary, the law sanctions them when fairly made, even by an executor or administrator, or guardian. Taylor v. Bemiss, 110 U. S. 42; Jeffries v. Mut. Life Ins. Co., Id. 305.

The attorney's lien for services is preferred to a lien for advances for expenses. Goodrich v. MacDonald, 41 Hun, 235. As to the responsibili

ties incurred by such a contract in respect of maintenance, see Bradlaugh t. Newdegate, L. R., 11 Q. B. Div. 1, 31 Wkly. Rep. 792, holding the contractor liable. Otherwise of charitable assistance. Harris v. Briscoe, 1

Q. B. Div., C. A., 504.

An attorney cannot properly take an assignment of a chose in action, with the intent and for purpose of bringing a suit thereon. N. Y. Code Civ. Pro., § 73.

Under the N. Y. statute (Code Civ. Pro., § 66), the attorney has a lien on the cause of action. See 18 Abb. N. C. 23, where the cases under the common law and earlier statutes are collected in an extended note.

ARTICLE III.

AUTHORITY OF ATTORNEY.

[It is proper, though not necessary, for an attorney to require written authority to commence or defend an action.68 The court may inquire into his authority, if it be challenged by the adversary.69 In the case of an action to recover real property, or its possession,70 and in all actions in justices' courts, the attorney may be required to prove his authority. The court may refuse to act upon a petition signed by an attorney for a non-resident, who swears to his authority, but who fails to produce any evidence thereof.71 If the court find that the action was brought by the attorney without authority from the plaintiff, the complaint will be dismissed.]72

FORMS.

(270) General authority to appear. (271) Affidavit of attorney to authority in Justice's Court.

(272) Request to commence an ac

tion to recover real property.

(273) Affidavit by attorney thereto. (274) Notice of the same.

FORM No. 270.

General authority to appear in all suits.73

I hereby instruct and authorize A. B., attorney-at-law, to appear in my behalf in all suits that may be brought by or against

me.

[Date.]

[Signature.]

68 Bogardus v. Livingston, 7 Abb. Pr. 428; Howard v. Howard, 11 How. Pr. 80. Oral retainer sufficient authority. McAlexander v. Wright, 3 T. B. Monroe, 189.

69 Hollins v. St. L. & Chicago R. R. Co., 57 Hun, 139, 11 N. Y. Supp. 27, 25 Abb. N. C. 93; The Ninety-nine Plaintiffs v. Vanderbilt, 1 Abb. Pr. 193; Repub. of Mex. v. Arangoiz, 5 Duer, 643, aff'g 1 Abb. Pr. 437; Com'rs of Excise v. Purdy, 13 Abb. Pr. 434.

70 N. Y. Code Civ. Pro., §§ 1512-14.

71 Matter of Stephani, 75 Hun, 188, 26 N. Y. Supp. 1039.
72 Timpson v. Mock, 105 App. Div. 299, 94 N. Y. Supp. 664.

73 Except in Justices' Courts. By N. Y. Code Civ. Pro., § 2890, the authority of an attorney appearing in a Justice's Court may be conferred orally; but, unless admitted by the adverse party, must be proved, either by affidavit or oral testimony of the attorney, or another. The above form would not comply with the statute, being neither "affidavit or oral evi

dence."

Form No. 271 (below) is sufficient for the purpose.

Where the complaint as filed was verified by the attorney, and the verification contained the oath of the attorney that he was the attorney for the plaintiff, held, that this complied with the statutory requirement. Barnes v. Sutliff, 24 Misc. 526, 53 N. Y. Supp. 974.