
    * Joseph Foster & Al., Assignees of James Andrews a Bankrupt, versus John Lowell, Esq.
    Where money belonging to A is in the hands of B, who also held a demand in favor of a creditor against A, with directions to make an attachment of A’s property, it was agreed between A and B that B should retain the money for the use of A’s creditor, and that B should cause A’s property to be attached, and that this agreement should be reduced to writing: this was not done, and A becoming bankrupt, his assignees recovered the money of B in an action for money had and received.
    Assumpsit for money had and received. Upon the trial of the cause before Parker, J., at the last November term in this county, the following facts were in evidence, as appears from the judge’s report.
    The defendant was assignee of the estate, &c., of two bankrupts, viz., Ebenezer Lewis and Elijah Williams, on which estates two dividends were declared, one on the eighth of July, 1802, and the other on the twelfth of September, 1803. James Andrews was a creditor to both estates, and the dividends belonging to him in Mr. Lowell’s hands, amounted to 364 dollars 34 cents, for which sum a verdict was rendered in this case.
    In January, 1803, a commission of bankruptcy issued against said Andrews, on an act of bankruptcy committed after the first order of dividend above-mentioned, and the present plaintiffs were duly appointed his assignees, and an assignment of all his estate, effects, &c., was duly made by the commissioners to them.
    Before the bankruptcy of Andrews, and before said first dividend was declared, there was placed in the hands of Mr. Lowell, a demand in favor of the Salem Marine Insurance Company, against said Andrews, for collection ; upon which demand a writ was issued and given to an officer, with directions to obtain security. When the officer called to make service of the writ, which was on the fifth of April, 1802, Andrews went to Mr. Lowell, and agreed with him, that the money whi h should come into his hands, as assignee to Lewis and Williams, belonging to Andrews, should be retained by Lowell, on account of this demand of the Salem Insurance Company, and further agreed to assign over to said Company, or to said Lowell, for their benefit, his claims on said estates, of which said Lowell was assignee, as aforesaid.
    * No attachment was made in the suit against said [*309] Andrews, but the action against him was entered and prosecuted until his bankruptcy. No assignment was executed by Andrews; and no further transactions appear to have taken place between him and said Lowell.
    
    On the tenth of January, 1804, the said Insurance Company, by Jacob Ashton, Esq., their president, proved their debt against said Andrews, before the commissioners of bankruptcy, having deducted 320 dollars, as the probable amount of the money in Mr. Lowell’s hands, from the estates aforesaid. Mr. Lowell being then in Europe, it did not appear that the company knew the amount of the said dividends, or of the net proceeds thereof, which might belong to them.
    If, upon these facts, the plaintiffs ought to recover the amount of both dividends, judgment to be rendered according to the verdict; if they ought to recover any part, then the verdict to be altered accordingly ; if they are not entitled to recover any thing, a general verdict to be entered for the defendant, and judgment for his costs.
    The cause was argued at this term by C. Paine for the plaintiffs, and by Jaclcson and Dutton for the defendant.
    
      Dutton,
    
    being called on by the Court to show that the assignment of Andrews to Lowell was a valid one, contended that the assignment, being made bona fide, and for a valuable consideration, was sufficient to pass the property. Andrews was then in good circumstances, and had a right to appropriate this money to the payment of the debt he owed the company, without incurring the imputation of fraud upon his other creditors. He certainly could not disaffirm a Contract thus fairly made, and the plaintiffs, his assignees, are but the successors to his rights and duties, and they take subject to all the bankrupt’s equity. 
    
    In the case of Lempiere vs. PasJey, 
       there was an assignment of goods at sea before the bankruptcy, but the bill of lading, not being at hand, was not endorsed until after the bankrupt-[*310] cy; yet the assignment was held good. Our case *is stronger than that, as here the property was actually in the defendant’s possession.
    Where a paroi agreement is in part executed, it need not be reduced to writing.  Here Andrews may be said to have executed this contract in part by leaving the money in the defendant’s hands, and omitting to demand it. The defendant executed his part of the agreement by rescinding his orders to the officer to obtain security of Andrews by a special attachment of his property.
    If, however, the Court should be of opinion, that writing was ne cessary to the validity of this contract, Andrews, whose fault it was that no writing was made pursuant to his engagement, is estopped, and so are his assignees, from making the exception.
    
      Paine, for the plaintiffs,
    insisted that this property, being merely contingent, was not assignable.  No dividends had been ordered, so the amount pretended to be assigned was unascertained. Such an assignment might possibly be good as against Andrews himself; but certainly not as against his assignees, whose whole interest and duty is in behalf of the creditors.
    But if it had been assignable at law, yet it was never, in fact, assigned ; not even in the understanding of the parties. Andrews retained the notes, his only title to the dividends, which would have been delivered to the defendant, had they intended an actual and real transfer of the debt. It is found in the case also that a written assignment was intended, as supposed necessary to complete the contract. It does not appear that the defendant ever endorsed the moneys received upon the note of Andrews to the Insurance Company, which he would very naturally and properly have done, had he considered them as validly transferred.  Nor is there any evidence that the company, the real creditors of Andrews, ever assented to the transaction, or even knew of it. It was, in truth, but a proposed bargain, intended to have * been [*311] concluded, but never matured. A material part of the bargain, viz., that the agreement should be reduced to writing, and executed by the parties to it, was never carried into effect; this never having been done, the whole was void.
    The case of Lampriere vs. Pasley was very different from the case at bar. There every thing was done, which was then in the power of the parties. All the papers which the debtor possessed were passed over to the creditor.
    But should the opinion of the Court incline to support this trans action, still we say that the defendant can retain no more than 320 dollars, the amount credited by the company, when proving their claim upon Andrews before the commissioners.
    
      Jackson, in the close,
    read the opinion of the Court of King’s Bench, as delivered by Ashurst, J., in which he considered that the principles which would support the present defence were fully maintained.
    Whether this was a valid assignment or not, it gave to the company a legal lien on the money in the defendant’s hands. They relinquished a security in their hands, gave up a pledge, in consideration of which it was agreed that this money should stand pledged. This was no contingent debt, except as to its amount. If, as in the case of Hatch vs. Brooks, an assignment by writing without seal was valid, it was equally so by parole, if not within the statute of frauds. It was, however, agreed to be put in writing, and nothing but the loches of Andrews prevented it. It does not lie in his mouth, then, nor in that of his assignees, to take the exception. The only difficulty is as to the difference between the sum in the defendant’s hands, and the sum deducted on that account by the company. But this admits of an easy adjustment by the commissioners, before whom the parties must again appear, whatever may be the decision of the Court in this case.
    
      
      
        Ex parte Dumas, 1 Atk. 232. — Hatch vs. Brooks, ante, vol. ii. 293.
    
    
      
       2 Term Rep. 485.
    
    
      
      
        Earl of Aylsford's case, 2 Str. 783. — Floyd vs. Buckland, 2 Freem. 268 — Leake vs. Morris, 2 Chan. Cases, 135. — 1 Fonblanque, 179, 180, 187.
    
    
      
       Fonblanque, 202, note g, and the cases there cited.
    
    
      
      
        Perkins vs. Parker, ante, vol. i. 117.
    
   The opinion of the Court (excepting the Chief Justice, who, having been of counsel, did not sit in the cause) was afterwards delivered by

Sedgwick, J.

[After reciting the facts, as before detailed.] The question arising in this case is between the creditors of Andrews generally, and one of them, the Salem Insurance Company, Who is entitled to the money ?

* We have been disposed, if we could have done it [*312] consistently with the rules of law, to give validity to the agreement between Andrews and the defendant; because we believe it was a fair and honest transaction. But when we consider that the parties themselves, at the time of the agreement, contemplated an assignment which was never made, as the completion and evidence of their contract; that no memorandum in writing was at the time made of the agreement; that neither of the dividends had ever been made or credited by the defendant to the insurance company, although one of them had been received by him before Andrews became a bankrupt, —we think that to sanction such loose, incomplete, and unexecuted contracts, in the cases of bankruptcy and insolvency, would authorize practices extremely mischievous. We think, therefore, that the verdict must stand.

Judgment according to the verdict, 
      
       [It does not appear, from the facts reported, that the agreement was intended to depend upon any memorandum of it in writing. And certainly no writing was necessary to give such an agreement validity. — Curtis vs. Morris, 8 Pick. 280.—Jones vs Witter, 13 Mass. Rep. 304. — Dunn vs. Snell, 15 Mass. Rep. 485. — Titcomb vs. Thomas, 5 Gr. 282. — Clark vs. Rogers, 2 Gr. 147. — Ford vs. Stuart, 19 Johns. 342. — Quinn vs. Marblehead Insurance Company, 10 Mass. Rep. 476. — Briggs vs. Dorr 19 Johns 95. —Prescott vs. Hall. 17 Johns. 284. — Robbins vs. Bacon, 3 Gr. 349.—Vose vs. Handy, 2 Gr. 342. — Onion vs. Paul, 1 Har. & Johns. 114. — Mowry vs. Todd, 12 Mass. Rep. 284. — Ed.]
     