Sec 836

The English common law, on grounds which it is not necessary here to discuss, does not permit the assignee of a contract to sue in his own name, though he is permitted to sue in the name of his assignor.4 Coke says the object was to discourage maintenance. Mr. Pollock regards the rule, and I think correctly, as "a logical consequence of the primitive view of a contract as creating a strictly personal obligation between the debtor and the creditor."5 In equity the right of the assignee to sue in his own name, was recognized at an early period; and the Joint debtor, paying more than his share, may recover from others.

Assignee by modern practice may sue.

Cott V. Canfield, 3 Cow. 194; Jenkins V. Hunt, 2 Rand. 446.

1 Kemp V. Finden, 12 M. & W. 421; Browne V. Lee, 6 B. & C. 689; Edger V. Knapp, 6 Scott, N. R. 707; Alexander V. Vane, 1 M. &.W. 511; Boulton V. Peplow, 9 C. B. 493; Fletcher V. Grover, 11 N. H. 368; Taylor V. Savage, 12 Mass. 98; Chaffee V. Jones, 19 Pick. 264; Campbell V. Mesier, 4 John. Ch. 334; Doremus V. Selden, 19 Johns. 213; Smith V. Hicks, 1 Wend. 206; see Murray V. Bogart, 14 Johns. 318. That co-debtors are entitled to contribution, see supra, sec 765; and see on this topic 1 Pars. on Cont. 32 et seq.

2 Lucas V. Ins. Co., 6 Cow. 635, and cases cited supra, sec 765.

3 Davies V. Humphreys, 6 M. & W. 153; Pitt V. Purssord, 8 M. & W. 538; Odlin V. Greenleaf, 3 N. H. 270; Chaffee V. Jones, 19 Pick. 260; Frith V.

Spragne, 14 Mass. 455. See supra, sec 760, for other cases.

4 See Pollock, 3d ed. 224; Wolff V. Oxholm, 6 M. & S. 99; Winchester V. Hackley, 2 Cranch, 342; Guthrie V. White, 1 Dall. 268.

5 To the same effect is 2 Spence's Eq. Jur. 850. See Koch, Forderungen, 3, 348. - "The rule that a chose in action cannot be assigned, means in effect that no one can transfer to another the right to bring an action for such a claim in the name of the transferee or assignee. This holds good, whether the right to bring an action be only what may be called a possible right of action, such as A. has against X. the moment a contract is entered into by X. with him; or an actual right of action, such as A. has against X. when X. has broken a contract with A. or has done a wrong to A. Hence, the rule may.

English judicature act of 1873, "creates a legal right modelled on the equitable right, but confined to cases where the assignment is absolute, and by writing under the hand of the assignor, and express notice in writing has been given to the debtor."1 Independently of this provision, an assignee, in England, is empowered by statute to sue in his own name on thus be stated: A. cannot transfer or assign to B. the right to sue X., so as to enable B. to sue X. in B.'s name, either on a contract made with A. or for a tort done to A." Dicey on Parties (Am. ed. 1879), 67. But "this nicety is not now so regarded as to render (an assignment) really ineffectual. It is, on the contrary, in substance, a valid and constant practice, although in accordance with the ancient principle, the form of assigning a chose in action is in the nature of a declaration of trust, and an agreement to permit the assignee to make use of the name of the assignor, in order to recover the possession. And, therefore, where in common acceptation a debt or bond is said to be assigned over, it must still be sued in the original creditor's name, for the bringing of which suit the person to whom it is transferred has sufficient authority." 2 Steph. Com. 6th ed. 45, 46; cited Dicey, ut supra, 69; Gibson V. Cooke, 20 Pick. 17. - By the Roman law the assignment of a debt was not permitted. Micklenbruch, Lehre von der Cession der Forderungsrechte, 3 Auf. 1836; Schmid, Grundlehren der Cession, 1866; Puchte, in Weiske's Rechts-Lex. II. 636; Unterholzner, I. 598; Vangerow, III. sec 574-6; Winds-cheid, II. sec 329. The reason given is that the intrusion of a new creditor changes the character of the duty arising from the debtor, and gives the contract a new quality. There is no such thing, so it was argued, as a contract to pay money without a distinctive payee, whose characteristics qualify the obligation. To strike out one payee and put in another, is to establish a new contract, requiring the consent of both parties. If a creditor, therefore, according to the old Roman law, wished to make over a debt due him to a third party, he could only do so by granting the use of his name to such third party. The "assignee" in such case is not an ordinary "procurator," but a procurator "in rem suam." This limitation, however, was not permanently applied. In the course of time, to adopt Winds-cheid's exposition (Wind. sec 329), it became the general practice for the assignee to sue in his own name. The actio, to adopt the terms finally accepted, was suo nomine, but at the same time was an actio utilis, not directa. The principle that the obligatio continued to belong to the original creditor was adhered to; the change was that the actio to enforce this obligation, as well as the fruits of the obligation, were given to the assignee. This distinction, however, is no longer recognized in the modern Roman law, by which an assignee of a debt has the same jus as his assignor.

That a creditor cannot, without his debtor's consent, assign a part of his claim, see Beardslee V. Morgnor, 73 Mo. 22. As to divisibility see supra, sec 233, 338, 511, 552; infra, sec 899, 979.

1 Pollock, 3d ed. 225. See Fairlie V. Denton, 8 B. & C. 395; Master V. Miller, 4 T. R. 340; Seddon V. Senate, 13 East, 73; McKinney V. Alvis, 14 Ill. 33.

"promissory notes, bills of lading, bail bonds, replevin bonds, administration bonds, life and marine policies of insurance, and choses in action belonging to companies within the company act."1 Similar legislation exists in most jurisdictions in the United States. Generally, also, bills of exchange and promissory notes are assignable by custom;2 but there must be an acceptance of bills to charge the acceptor, and "the holder of a cheque cannot maintain an action in his own name against the drawees, though they have sufficient funds of the drawer, if they refuse to accept it."3 It is also to be remembered that " the assignment of a debt may be effected in law so as to give a right of action to the assignee by means of a binding agreement between the assignor, the assignee, and the debtor, to the effect that the debt shall be discharged as against the assignor or original creditor, and a new liability created for the debt in favor of the assignee."4 - At law, therefore, the old rule exists mainly in reference to sealed obligations, and to non-accepted drafts or orders, while in equity it has ceased to exist.5 - In some states in this country, by statute, assignees are entitled in all cases to sue in their own names.6