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tuted for the tenant, and such former tenant discharged. Stone v. Whiting, 2 Stark. 235; Thomas v. Cooke, Id. 408; Matthews &c. v. Sorwell, 8 Taunt. 470; Phipps v. Sculthorpe, 1 Barn. & Ald. 50; Nickells v. Atherstone, 10 Adol. & El. N. S. 944; 3 Eng. Com. Law Rep. 331, 405; 4 Id. 101; 59 Id. 944; Schieffelin v. Carpenter &c. 15 Wend. 400. And an analogous principle holds in respect to other contracts than those of a tenant.
Where it is admitted that a defined and ascertained sum is due from A to B, and that a larger sum is due from C to A, and the three agree that C shall be B's debtor instead of A, and C promises to pay B the amount owing to him by A, an action will lie by B against C. Wilson &c. v. Coupland &c. 5 Barn. & Ald. 225, 7 Eng. Com. Law Rep. 77. One case in Virginia has some of the features of this class. Peyton &c. v. Stratton &c. 7 Grat. 380. It is a general rule as to such cases that it lays upon the plaintiff to shew that at the time when the defendants are supposed to have promised to pay him the debt owing to him by the third party, there was a debt ascertained to be due to that party from the defendants. Fairlie v. Denton &c. 3 Barn. & Cress. 395; 15 Eng. Com. Law Rep. 246. And it must appear that the plaintiff agreed to look to the defendant instead of his original debtor; that the debt from such debtor to the plaintiff was extinguished. Cuxon &c. v. Chadley, 3 Barn. & Cress. 591, 10 Eng. Com. Law Rep. 191; Wharton v. Walker, 4 Barn. & Cress. 163, 10 Eng. Com. Law Rep. 302.
These cases then in effect hold that even at common law a chose in action is assignable with the assent of the three parties concerned.
2. When creditor assigns, and debtor promises to pay
The next enquiry is what is the obligation of a debtor who at the time his creditor assigns gives no express assent. In Massachusetts and Maryland an assignment by a party of his money in another's hands with notice to that other imposes on him an equitable and moral obligation to pay the money to the assignee; and though this obligation is not suf ficient at common law to enable the assignee to maintain an action thereon in his own name, it is yet a good consideration for an express promise to that effect. It is no objection to such an assignment that it is of a debt due on open account or even of an unliquidated balance of account. If the defendant having notice of the assignment promises to pay
what shall appear to be due from him, he is liable for what shall so appear. Nor does it make any difference if instead of a debt now due, the assignment is of money which is expected to become due at a future day to the assignor. When the contingency happens and the money is due, the debtor is liable for the amount on his promise to the assignee. Jackson, J. in Crocker & wife v. Whitney, 10 Mass. 326; Kingsley &c. v. New England Mut. F. I. Co. 8 Cush. 400; Omon v. Paul, 1 Har. & J. 114; Allston's adm'r v. Contie's ex'or, 4 Id. 351. There are other cases deciding that a promise in writing delivered over by the payee to another for an adequate consideration, the promiser having notice and promising to pay the assignee, will justify an action by the assignee upon such promise in his own name. Lamar v. Manro, 10 Gill & J. 50; Gordon v. Downey, 1 Gill 51. Such action has been maintained, although the name of the promisee was not signed upon any part of the note. Mowry v. Todd, 12 Mass. 281; Jones v. Witter, 13 Id. 307. It has been maintained without producing an assignment in writing. 1 Har. & J. 114, 15.
In Virginia an action of assumpsit has been maintained upon the promise of an obligor to pay the amount of his bond to a third person if such person would accept a transfer thereof. Cleaton v. Chambliss, 6 Rand. 86. In this case, the obligors in a bond proposed, for valuable consideration, to transfer the same to a third person, and, after this proposition, the latter had a conversation with one of the obligors, in which that obligor promised him that if he would take the bond from the obligee, he the obligor would pay him the sum of money specified in the same, when it should become due. The person to whom the promise was made, took a transfer of the bond without any written assignment, and afterwards brought suit in the name of the obligee, for his own benefit, on the bond. In that suit, non est factum was pleaded, and a verdict and judgment rendered for the defendant. An action of assumpsit was then brought upon the promise made before the transfer. The declaration set forth the foregoing facts. It averred that the bond had not been altered from the time of the promise until the rendition of the judgment, and concluded with charging the defendant's liability. Upon demurrer to the declaration it was held to be good.
3. Where a bond or note is sold and delivered, but no promise made to the purchaser, nor any written assignment made to him, what are his rights.
If two men agree for the sale of a debt and one of them
gives the other credit in his books for the price, that may be a good assignment in equity. Heath &c. v. Hall &c. 4 Taunt. 327; Kimball v. Huntington, 10 Wend. 680. These cases shew that courts of law take notice of such assignments. They protect the assignee in various ways. Welch v. Mandeville, 1 Wheat. 233.
By the sale and delivery of a bond or note, though without endorsement or written assignment, the purchaser becomes the beneficial owner. Although not recognized in a court of law as the owner, yet he is recognized as the agent, (and if he have a power of attorney) as the attorney in fact of the assignees; and may for his own use carry on a suit in their name for the debt or for a cause of action arising collaterally in the original suit. Waterman v. Williamson, 13 Iredell
When the transferree as agent of the obligee to receive the money has received it, how then stands the right to the money? The moment it is received it vests in the transferree as legal owner. For the chose in action of which the obligee was the legal owner is extinguished by an act which he has authorized to be done, to wit: the reception of the money: the money vests in the transferree as legal owner by force of the contract of sale, which on the receipt of the money becomes executed in the same manner as if the obligee had himself received the money and handed it to the transferree in execution of the contract. If the transferree instead of going himself to the obligor send a third person for the money, the instant he receives it it becomes the money of the transferree, and if such third person pay it to the obligee the payment is in his own wrong, and the money may be recovered by the transferree in an action for money received. Hokes's ex'or v. Carter's adm'r, 12 Iredell 324.
5. How assignment may be made by writing.
In a case in Massachusetts, it was doubted by one of the court whether, without deed, a promise in writing, though not under seal, could be assigned, so as to convey an equitable interest to the assignee. But the rest of the court were of opinion, and many subsequent decisions held, that it might; and such may be considered as established doctrine. Wood v. Partridge, 11 Mass. 491.
As late as 1814, it was laid down in that state that an assignment of an interest under seal must be by deed; in other words, that the instrument of transfer must be of as high a nature as the instrument transferred. No case had then occurred VOL. II.-17
there of an attempt to assign a bond or covenant or other contract under seal by a mere delivery over to the intended assignee, with the name of the assignor in blank or with such words of transfer as are usually employed in the assignment of a parol or written promise. Wood v. Partridge.
The rule as to this matter in other states is different from that of Massachusetts. Hale v. Schultz, 3 McCord 218. In the southern states-to wit: in Virginia, North Carolina, South Carolina and others-it has long been the practice to transfer bonds for payment of money. 1 Hill 377. And in these transfers a common mode of passing them has been by a blank endorsement. 1 Bay 392.
6. At common law assignee had no right to sue in his own
At common law the right of an assignee to sue in his own name on an executory contract was (in the absence of any express assent of the debtor) restricted to the cases mentioned ante, p. 77, 8, in chapter 7, treating of covenants running with the land; and to the cases of bills of exchange, mentioned ante, p. 222, in chapter 25. Changes have been made by statutes; in respect to instruments declared negotiable in the cases mentioned in chapter 20, ante, p. 164-173; and in respect to instruments not negotiable in the cases mentioned in the present chapter. In cases not embraced by such statutes, it must still be borne in mind that an assignee cannot sue in assumpsit on a contract made by the defendant with the assignor. Standen v. Chrismas, 10 Adol. & El. N. S. 141, 59 Eng. Com. Law Rep. 151.
7. Change made in Pennsylvania by the act of 1715.
The Pennsylvania act of May 28, 1715, recited in the preamble "that it hath been held that bonds and specialties under hand and seal, and notes in writing signed by the party who makes the same, whereby such party is obliged or promises to pay unto any other person or his order or assigns, any sum of money therein mentioned, are not by law assignable or endorsable over to any person so as that the person to whom the said bonds, specialties, note or notes, is or are assigned or endorsed may, in their own names, by action at law or otherwise, recover the same." The act then provided for such assignment and endorsement toties quoties. And it declared that the person or persons to whom the assignment or endorsement is made may, in his, her or their name or names, sue at
law "for the recovery of the money mentioned in the bond, specialty or note, or so much thereof as shall appear to be due, at the time of the assignment, in like manner as the person or persons to whom the same was or were made payable, might or could have done;" and that "the assignors shall not, after the assignment, have power to release any of the debts or sums of money really due by the said bonds, specialties or notes." 1 Dall. 443.
The variance between this act and the statute of Ann, has been regarded as intentional, not accidental. The words, so much as shall appear to be due, are deemed to relate to the time of trial. The construction of the act is that the assignee takes at his own peril; that he stands in the same place as the obligee, so as to let in every defalcation which the obligor had against the obligee at the time of the assignment or notice of the assignment; that the only intent of the act is to enable the assignee to sue in his own name and prevent the obligee from releasing after assignment. It was so decided in 1776. Wheeler &c. v. Hughes &c. 1 Dall. 23. And it was considered afterwards that bonds and promissory notes were, by the act, placed exactly on the same footing, except that bonds were to be assigned under hand and seal and in the presence of two or more credible witnesses. McCullough v. Houston, Id. 443.
If the bond was without good consideration, the assignee held it subject to the same equity as the assignor, notwithstanding the obligor had, after the assignment, promised the assignee to pay it. Ludwig v. Croll, 2 Yeates 464. It is different where the obligor's promise was made before the assignment, and in confidence thereof the assignee took the same. Carnes v. Field &c. Id. 541; Weaver v. McCorkle, 14 S. & R. 304. It may then be insisted that the obligor has, by his conduct, precluded himself from a defence which he might otherwise have set up. McMullen v. Wenner &c. 16 Id. 21. That is, it may be so insisted by a plaintiff who is not a bare donee but an assignee for value. Edgar v. Kline, 6 Barr 331.
Where, cotemporaneously with the execution of the bond and the assignment thereof, the obligor expressly agreed that the bond should be paid at all events when due, and that he would not buy up any set-off against it, a set-off brought forward in violation of this agreement will not be allowed. Henness v. Page, 3 Whart. 275.
On the authority of this case, it was contended that where the bond contained a promise to pay a certain sum, at a specified day, "without defalcation," the obligor should not be