Sec 846

It is open, however, to the parties to a contract to provide that in the hands of an assignee no set-off between the parties should be permitted.6 In law the debtor may preclude himself by means of estoppel from setting up a set-off or counter-claim,7 "which," comments Mr. Pollock, "really comes to the same thing, the doctrine of estoppel being a more technical and definite expression of the same principle.'"8 It has been consequently held that when there are transferable indentures subject to such limitation, the holder takes them free from any equities between the original parties. And a limitation to this effect has been held to exist where, in pursuance of an antecedent agreement, debentures are issued, payable to the holder or bearer,1 and where the debenture is put in the form of negotiable paper.2 But this implication does not arise merely from the fact that the debenture is made payable to holder or bearer.3 - That such debentures are issued in blocks, consisting of a series separately numbered, and that the object of the issue was to raise money in the market, are ingredients in determining the question whether the issuer of the debentures has estopped himself from setting up equities personal to himself against the holder.4 But in, England the original parties to such debentures cannot turn them permanently into negotiable instruments by an agreement that the debts of the original creditor should not be set off against any subsequent assignee. This agreement does not by its own force operate to enable an intermediate holder against whom equities exist to transfer a title free from such equities.5

Parties may contract to assign free from equities.

1 Freshfield's Trusts, L.R. 11 Ch. D. 198.

2 Addison V. Cox, L. R. 8 Ch. 76-9.

3 Pardee V. Piatt, 20 Conn. 402.

4 Lloyd V. Banks, L. R. 3 Ch. 488; Duncklee V. Mill Co., 3 Fost. 245. See generally as to necessity of notice, 2 Story's Eq. Jur. sec 1047; Williams V. Sorrell, 4 Ves. 389; Mangles V. Dixon, 3 H. L. C. 702; Rodick V. Gandell, 1 D. M. & G. 763; Ward V. Morrison, 25 Vt. 595; Jones V. Witter, 13 Mass. 304; Commercial Bank V. Colt, 15 Barb. 506.

When a debt was due from a person domiciled in Connecticut to a person domiciled in Massachusetts, and this debt was attached in Connecticut by a creditor of the payee, and the payee, between laying the attachment and judgment thereon, made an assignment, the attachment was held in Connecticut to take the debt as against the assignment, although it would have been otherwise under the law of Massachusetts. Upton V. Hubbard, 28

Conn. 274; So. Boston Iron Works V. Locomotive Works, 51 Me. 585.

5 Burn V. Carvalho, 4 M. & Cr. 690; Freshfield's Trusts, L. R. 11 Ch. D. 198; Thayer V. Daniels, 113 Mass. 129; Muir V. Schenck, 3 Hill, 228; Spain V. Hamilton, 1 Wall. 604. With regard to foreign bankrupt assignments, see Wh. Con. of L. sec 390.

6 Asiatic Banking Co. ex parte, L. R. 2 Ch. 391. In this case Lord Cairns said: "Generally speaking, a chose in action assignable only in equity must be assigned subject to the equities existing between the original parties to the contract; but this is a rule which must yield when it appears from the nature of the terms of the contract that it must have been intended to be assignable free and unaffected by such equities." See supra, sec 141, 795-797.

7 Webb V. Heme Bay, L. R. 5 Q. B. 642; sec 796-7.

8 Pollock, 3d ed. 231.