Sec 837

An assignment of a chose in action in itself implies a right to use the assignor's name. Hence after such an assignment, in states where the assignee cannot sue in his own name, he can sue in the name of the assignor.7 Want of interest in the nominal plaintiff cannot be shown to defeat the suit.8 Nor does it make any difference whether the chose in action is a written or parol contract, or an express or implied promise.1 Whenever the assignment is valid, the assignee can sue in his assignor's name, if not in his own. In suits on insurance policies the assignor's name need not be used. "Upon an order, endorsed on the policy, to pay in case of loss to a third party, accepted by the company, or assented to by them, the payee may maintain an action, in his own name, on setting out the facts in his declaration."2

Assignment authorizes use of assignor's name.

1 Dicey, ut supra, 117.

2 Ibid.

3 Trunkey, J., Saylor V. Bushong, 12 Weekly Notes, 81, citing Bank of the Republic V. Millard, 10 Wall. 152; Carr V. Bank, 107 Mass. 45. See AEtna Bank V. Nat. Bank, 46 N. Y. 82.

4 Leake, 607, adopted in Dicey, ut supra, 118; infra, sec 852.

5 2 Story's Eq. Jur. sec 1040 et seq.

6 See Ch. on Pl. 16th Am. ed. (1879) 17; Aldricks V. Higgins, 16 S. & R. 212; Cox V. Hill, 6 Md. 274; Prioleau V. Bank, 16 Ga. 582; Smith V. Schibel, 19 Mo. 140; Mills V. Murry, 1 Neb. 327;.

Worthington V. Curd, 15 Ark. 491. In New Jersey, the assignment must be for a valuable consideration. Andrews V. Rue, 34 N. J. L. 402.

7 Supra, sec 526; Ch. on Pl. 16th Am. ed. 17; Winchester V. Hackley, 2 Cranch, 342; Smith V. Berry, 18 Me. 122; Hal-loran V. Whitcomb, 43 Vt. 306; Clark V. Swift, 3 Met. 392; Parkhurst V. Dick-erson, 21 Pick. 307; Moore V. Coughlin, 4 Allen, 335; Lyon V. Summers, 7 Conn. 399; Jessel V. Ins. Co., 3 Hill, 88; Norris V. Douglass, 2 South. 817; McKinney V. Alvis, 14 m. 33.

8 Raymond V. Johnson, 11 Johns. 488.

Sec 838

From what has been just said, the distinction between assignability and negotiability is marked. If a promissory note be made by X. payable to A. or order, and A. endorses it to D., D. is entitled to recover from X. without proof of consideration. If the suit were on an assignment instead of an endorsement, it would be necessary for the plaintiff to prove, (1) consideration, and (2), the fact that notice of the assignment had been given by him to the debtor. Negotiability excludes equities; assignability is subject to them. Negotiability gives the holder often a better title than the assignor, as where a bona fide holder takes a note tainted with fraud or gambling.3 But, * supposing there be no notice cutting off subsequent transactions between the original debtor and the original creditor, the assignee stands in the original creditor's shoes.4

Sec 839

No particular form is necessary, as a general rule, to constitute an assignment of a debt.5 When negotiable paper is payable to order, an endorsement is necessary to pass the title; but when payable to bearer, mere delivery is sufficient.6 An order by the creditor of any kind (unless there be a statutory limitation) will carry the debt, if properly served on the debtor. The first essential is that the order should be from the creditor to whom the debt is payable.1 Nor is it any longer necessary that the assignment should be by an instrument of the same solemnity as that which secured the original debt.2 It is enough if there be a transfer of the security, with directions to the debtor to pay to the assignee.

Assignability distinguished from negotiability.

No particular form is necessary.

1 Clarke V. Thompson, 2 R. I. 146; Currier V. Hodgdon, 3 N. H. 82.

2 May on Ins. 2d ed. sec 447; Chamberlain V. Ins. Co., 55 N. H. 249; Barrett V. Ins. Co., 7 Cush. 75; Lowell V. Ins. Co., 8 Cush. 127; Loring V. Ins. Co., 8 Gray, 28; Hastings V. Ins. Co., 73 N. Y. 141; Hartford Ins. Co. V. Olcott, 97 Ill. 439; see supra, sec 526.

3 Anson (Am. ed. 1880), 215, citing Conard V. Ins. Co., 1 Pet. 386; Peters V. Balistier, 3 Pick. 495.

4 As to negotiable paper, see supra, sec 795; as to bills of lading, see supra, sec 793; that outside of these exceptions a party without title cannot pass title see supra, sec 292, 734, 793.

5 2 Story Eq. Jur. sec 1043 et seq.; Ryall V. Rowles, 1 Ves. 348; Morton V. Naylor, 1 Hill, N. Y. 583.

6 Jones V. Witter, 13 Mass. 307;' Freeman V. Perry, 22 Conn. 617; see supra, sec 795.