Page:United States Reports, Volume 2.djvu/55

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is the best? Where the parties are equal in equity, the priority of right furnishes a fair rule for decision; and the claim of Willing & Morris is not only founded on a greater value in point of confidence, but on a superior title in point of date. The executors had early notice of it; they were justifiable in retaining the legacy to pay it; and the action now trying is sufficient evidence of their refusal (after being warned for that purpose) to recognize the adverse assignment.

The, having recapitulated the evidence as stated in the commencement of this report, proceeded in delivering the following charge to the jury.

, President—The action brought to recover the legacy in question, turns, in reality, upon a dispute between Reede & Forde (who have a right to use the legatee’s name on the occasion) upon the one hand, and Willing & Morris, upon the other. The assignees of the nominal plaintiff have produced a regular transfer of the legacy; and are unquestionably entitled to a favourable verdict, unless their claim is satisfactorily repelled by any circumstance of law or equity, arising from the defence which has been made.

It is objected to their claim, then, that Willing & Morris are entitled to the legacy, by virtue of a prior assignment; and although this assignment is not so regularly proved as the other; yet, the defendants counsel has argued, that it is equally effectual in point of equity. The facts respecting the alledged assignment to Willing & Morris are briefly, that G. Inglis, being entitled to a sum of money for his share in the commissions, arising from the sale of goods consigned to S. Inglis & Co. applied for payment to Willing & Morris, the surviving partners; that they refused, at first, to make the payment, insisting that they would retain the amount in satisfaction of a debt due to them from G. Inglis; but that eventually they complied, being strongly solicited by G. Inglis, who in his letters offered to serve them in any way, and particularly to make over his legacy. Now, it is contended, that this compliance must be taken to have been on the terms of the request; and that the terms amount, at least, to a promise of an assignment. The case upon the facts disclosed is not, indeed, free from doubt, but if the jury shall, upon the whole, be of opinion, that the parties, in paying and receiving the commissions, contemplated and intended a transfer of the legacy as a consideration, then, the law stated by the defendants being well founded, the promise to assign created an equitable right, and, without any further formality, vested the legacy in Willing & Morris. For, by making and accepting an offer, every bargain is consummated.

Much has been said on the point of notice; and, it is true, that if the obligee of a bond assigns it, notice ought to be given to