with one fundamental legal conception

"right" where several are needed, or with one word to describe several fundamentally different jural relations. The criticism of my learned friend has convinced me more strongly than ever of the absolute necessity for both an exact, scientific analysis of fundamental legal conceptions and an equally exact and scientific terminology.10 Limits of space and time compel me to refer the learned reader to the article by my colleague already referred to for an adequate exposition of the fundamental conceptions and terminology which seem to me to be necessary to any adequate discussion of our problem. A detailed application of that analysis and terminology to the concrete problem of assignments is found in my original article."1

Stated in the terms of that analysis and terminology, my conclusions as to the jural character of the assignee's interest in the assigned claim may be restated briefly as follows: In the ultimate development of the common law, the assignee of a common law chose in action is in a court of law, after notice to the debtor, vested with all the rights, privileges, powers and immunities which go to make up that aggregate of jural relations commonly called the "legal ownership" of the chose in action; and, correspondingly, the assignor no longer is vested with the rights, privileges, powers and immunities which constitute so-called "legal ownership." As long ago as 1801 James Kent, then a Justice of the Supreme Court of New York, in deciding a case involving the legal effects of the assignment of a judgment, expressed the same idea clearly, in the following words:

"The assignee of the judgment is to be recognized by this court, as the owner, and all acts of the plaintiff [assignor] subsequent to the assignment, and affecting the validity of the judgment, were fraudulent. He has no more power over the judgment than a stranger." 12

10 The attention of the learned reader is called, as it was in my former article, to the fact that the fundamental analysis and terminology used is that set forth by my colleague Professor Hohfeld, in his article on "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning," 23 YALE L. J. 16. Without an analysis similar to that there presented I do not see how legal problems of any sort can be adequately analyzed.

For an application of the analysis to the field of contract, see the article on “Offer and Acceptance" by my colleague, Professor Corbin, 26 YALE L. J. 169.

11 29 HARV. L. REV. 819-821.

12 Wardell v. Eden, 2 Johns. Cas. (N. Y.) 258, 260 (1801).

An eminent Connecticut judge in an able opinion was equally emphatic in 1818:

"It is a well-settled principle of common law in Connecticut that the property in a chose in action may be assigned; and courts of law have long since recognized the property in the assignee as fully as courts of chancery." 13

As a corollary to my main proposition, it follows that the requirement that the suit in the common-law court be brought in the name of the assignor was substantially only a formality, demanding that a certain kind of title be given to the action; it did not as a rule affect the substance of things. On this point the able judge last quoted said in the same opinion:

"The old form of bringing the suit in the name of the obligee, is, indeed, continued; but it is now mere form.”

" 14

From this summary of the conclusions presented in my original article the learned reader will see clearly the inadequacy of the statement that I argue "that the assignee . should be regarded as having a legal rather than an equitable right."15 It ignores absolutely that very complexity of the jural relations involved which was not merely emphasized in my former article but made the very basis of my whole analysis and argument.

That this statement besides being inadequate as a description of my conclusions is also (though unintentionally so) quite misleading appears when we notice that it makes me argue that "the assignee . . . should be regarded as having a legal rather than an equitable right."16 Even if there be substituted for “a legal right" the words which I used, viz., "an aggregate of legal rights, privileges, powers and immunities," and for "an equitable right" the words "an aggregate of equitable rights, privileges, powers and immunities," the statement would still be a misdescription of my conclusions. It is not contended at any point in my article that the jural relations which go to make up the assignee's ownership of the claim became exclusively legal. Nowhere is it asserted that equity

13 Smith, J., in Colbourn v. Rossiter, 2 Conn. 503, 508 (1818). The italics are those of the present writer.

14 See a longer extract from the opinion, 29 HARV. L. REV. 830.

15 The italics are those of the present writer.

16 The italics are those of the present writer.

ceased to recognize the assignee as being the "owner" of the chose in action. The whole argument is that the rights, privileges, powers and immunities of the assignee become legal as well as equitable, instead of exclusively equitable. In my argument it is first pointed out that apparently there was a time in English legal history when the assignee's "ownership" of the claim was exclusively equitable.17 It is then shown how by degrees the common law, adopting the equitable view, ultimately came to recognize the assignee as owner.18 Of any view that equity ceased to regard the assignee as owner, because of this recognition of him by the common law court, there is no hint in anything that was said. Indeed, the following extract from the opinion by Smith, J., already referred to, quoted in my original article, shows that quite the contrary was intended:

"I speak not of chancery, merely. It is the same at law. There is no hostility between the different jurisdictions on this subject. . . . The courts of law have long since recognized the property in the assignee as fully as courts of chancery." 19

Surely if this means anything it means that the ownership of the assignee is concurrently legal and equitable, i. e., recognized and sanctioned both by common law and by equity. In view of prevailing modes of thought and use of terms, however, it is necessary to explain exactly what is meant by saying that a given jural relation is concurrently legal and equitable. This demands some consideration of the relations between law and equity as well as of the nature of legal and equitable rights and other jural relations.

II

Commonly jural relations are classified as either "legal" or "equitable." The fact that many jural relations are concurrently legal and equitable is not usually recognized.20 By the statement that a jural relation is concurrently legal and equitable is meant simply that it is recognized as valid and so is sanctioned by both courts. To apply this concretely to the case of assignments of choses in action, let us consider, for example, the jural relations

19

2 Conn. 503, 508 (1818). The italics are those of the present writer.

20 An accurate analysis of the situation is presented by Professor Hohfeld in his article upon "The Relations between Equity and Law,” II MICH. L. REV.

which arise upon the assignment of a common law debt. The right of the assignee to have the debtor pay the money to him, and the correlative duty of the debtor to pay the money to the assignee, are concurrently legal and equitable, not merely legal or equitable. That is, both courts recognize and sanction the right of the assignee and the duty of the debtor. To be sure, ordinarily the assignee may not sue the debtor in equity, either in his own name or that of the assignor, for the reason that he has an adequate remedy at law."1 It by no means follows that the right and its correlative duty are exclusively or purely legal, although that is commonly assumed. An accurate analysis shows that the right and duty are recognized and sanctioned by equity as well as by law. By refusing to interfere by injunction with the assignee's suit in a law court for the collection of the claim, the court of equity "indorses and sanctions the remedial proceeding in the law court," 22 and so the right itself. If the view of equity were that the debtor's duty to pay is not in equity as well as at law owed to the assignee but to someone else — the assignor, for example — an injunction to stop the assignee from collecting the claim by means of a common law proceeding would be the normal thing. Moreover, when occasion arises equity stands ready to aid the assignee if for any reason the effective assertion of his right to payment requires such aid.23 For example — referring now to the time when the testimony of parties to an action could not be had in a common law court if to establish his right the assignee needed testimony from the debtor, equity would enable the former to obtain it by bill of discovery, brought in aid of the action at law.24 So also if the assignee held the chose in action in trust for someone else and refused to enforce it for the benefit of the cestui, the latter could proceed directly by bill in equity against both assignee and debtor and compel payment by the latter.25 Where because of defects in the common law due chiefly to the technical rule requiring the action to be entitled with the name of the as

21 Hammond v. Messenger, 9 Sim. 327 (1838); Hayward v. Andrews, 106 U. S. 672 (1882). The latter case contains a review of the leading American authorities. 22 Hohfeld, 11 MICH. L. REV. 569.

23 Cf. the examples given by Hohfeld, loc. cit.

24 Of course to-day the modification of the common law rules of evidence usually renders such a course unnecessary.

25 Fogg v. Middleton, 2 Hill Ch. (S. C.) 591 (1837), and cases cited in AMES, CASES ON TRUSTS, 2 ed., 67.

signor the assignee could not sue at law, he could sue directly in equity in his own name.26

28

A careful consideration of the other jural relations involved the privileges, powers and immunities of the assignee - will show that they also are not exclusively legal 27 or exclusively equitable, but concurrently legal and equitable in the same sense. It is, for example, the privilege of the assignee to release the claim if he wishes, with or without receiving a consideration; he is under no duty to the assignor or others not to release, i. e., they have "no right" that he shall refrain from releasing. That the assignee has this privilege at law is shown by the fact that neither the assignor nor anyone else has a cause of action against him if he does execute a release. That the privilege is also equitable, i. e., recognized and sanctioned by equity, is obvious, for clearly equity would not only refuse to enjoin him from releasing if he had not yet done so but also hold him guiltless of any wrong if he had. To assert that the privilege was not equitable as well as legal would be to assert that in equity as distinguished from law he was under a duty to someone

presumably the assignor - not to release. If so, equity would at the instance of the one to whom the duty was owed grant an injunction to stop the giving of the release or, if it had been given, order its surrender and cancellation or give such other relief as the occasion demanded.29 Consideration of the other privileges of the assignee, with their correlative "no-rights" of others, shows that they are concurrently legal and equitable.30

31

The powers of the assignee and their correlative liabilities are also concurrently legal and equitable. For example, the power of the assignee to give a valid release to the debtor is recognized by both law and equity. If it were not concurrently legal and equitable, but merely legal, the chancellor would of course refuse to

26 Person & Marye v. Barlow, 35 Miss. 174 (1858).

27 "Exclusively legal" and "exclusively equitable" jural relations are considered more carefully at a later point in the discussion.

28 See the discussion of "no-rights" by Hohfeld, 23 YALE L. J. 32.

29 Compare the situation in early days when payment of a bond did not per se discharge it at law unless it were so conditioned.

30 For example, the privilege to transfer the claim to anyone else; the privilege not to enforce the claim by suit and thus to permit the statute of limitations to run,

etc.

31 See the scheme of jural "opposites" and "correlatives" in 23 YALE L. J. 30. One may of course have the power to do a thing and not the privilege of doing it.