1790.
and by Fisher for the latter. There being two pleas; one affirmative and the other negative, a preliminary discussion arose between the counsel, as to the right of beginning; which, the President terminated by declaring it to have been long settled, that where there are two pleas, and the proof of one of them lies upon the plaintiff, he shall always open the cause.
In support of the claim of Reede & Forde, it was argued, that the goods had been sold to G. Inglis on the credit of the legacy, and not upon his personal credit; that the assignment was of a date prior to the delivery of the goods, so cautiously had they conducted themselves in order to avoid a contrary construction; and that the year observed for this payment did not elapse till sometime after the sale of the goods had been completed. It was remarked to have been the intention of the testator to afford a personal relief to his brother, and not to furnish a fund for the payment of his debts; from which it was concluded, that the construction necessary to the opposite claim, being so contrary to that particular intention, ought at least be strongly supported by the reason and justice of the case.
But reason and justice co-operate with the testators intention. There was no notice either to Coxe, or to Reede & Forde, of the alledged assignment, in favor of Willing & Morris; for, although it was intimated to Coxe, that there were claims subsisting against the legatee, he had no reason to expect, that an actual assignment of the legacy would ever be pretended. Notice is indeed essential to the validity and effect of an assignment; for, being an equitable transfer, it must be taken subject to every equitable circumstance. In the present case, however, there was no assignment in fact, or in law, but merely an offer to assign. It is true, that an incomplete conveyance will, in some instances, be carried into effect by a court of equity; but the court will never exercise such a jurisdiction, in aid of a creditor, who did not trust to the particular fund, against the claim of a creditor who did. In England, a judgment creditor does not trust to the lands: and, therefore, articles made for a valuable consideration, and the money paid, will in equity bind the estate, and prevail against any judgment creditor, mense between the articles and the conveyance 1 P. Wms. 282. But there was not even a sufficient consideration for the pretended assignment to Willing & Morris. The commissions on the Jamaica assignments had amounted to 6 or £700, and the balance paid to G. Inglis on 1ft December l783 amounting to £276, was due to him in his own right; but the debt which he had contracted with Willing & Morris was a partnership debt; and to compel him to surrender his legacy, merely to obtain his own money, was an uncon-