The law recognized from early times certain exceptions to the non-assignability of choses in action in the following cases:
1. The crown could make an assignment of a claim due to it, and an assignment to the crown was equally effective.6 This doctrine has been held applicable to assignments to the United States Government.7
2. Executors and administrators and in some cases heirs were permitted from very early period to enforce contractual rights due to the deceased persons whom they represented,8 and became subject to the liabilities of such persons to the extent of the assets received.
3. Assignees in bankruptcy were the creation of statute; and bankruptcy statutes have vested in such officers the contractual choses in action of the bankrupts whom they represent. These statutes make the assignee or trustee in bankruptcy the real owner of the chose of action, so that after the day fixed by statute for the transfer of the debtor's estate, a payment to him by one who owed him money would not discharge the debt even though the payment was made in good faith in ignorance of the bankruptcy.9 liabilities due from the bankrupt become provable claims against his estate.10
6 Com. Dig. Assignment, D; Allen's Case, Owen, 113; Lambert v. Taylor, 4 B. & C. 138.
7 United States v. Bufoid, 3 Pet. 12, 7 L. Ed. 266; United States v. White, 2 Hill, 59, 37 Am. Deo. 374.
8 Y. B. 20 & 21 Edw. I, 304, 374; Wheatley v. Lane, 1 Wms. Saund. 216a.
9 Howard v. Crompton, 14 Blatch. 328; Butler v. Mullen, 100 Mass. 453; Stevens v. Mechanics' Bank, 101 Mass. 109, 3 Am. Rep. 325; Bruce v. Anderson, 176 Mass. 161, 57 N. E. 354; Duffield v. Horton, 73 N. Y. 218. See also more generally on the title transferred by bankruptcy, Willis v. Freeman, 12 East, 656; Cole v.
Coles, 6 Hare, 517; fie Caloott, [1898 2 Ch. 460; Conner v. Long, 104 U. S. 228, 232, 26 L. Ed. 723; Everett p. Judaon, 228 U. S. 474, 33 S. Ct. 568,57 L. Ed. 927; Bailey v. Baker Ice Much. Co., 239 U. S. 268, 276, 36 S. Ct. 50, 60 L. Ed. 275; fie Gregg, 1 Hask. 173; Re Lake, 3 Biss. 204; Sicard v. Buffalo, etc., Ry. Co., 15 Blatch. 525; Rand p. Iowa Central Ry., 186 N. Y. 58, 78 N. E. 574, 116 Am. St. Rep. 530. In England an assignee in bankruptcy must give notice to the debtor of the assignment to him of the bankrupt's choses in action in order to protect his title against competing rights. See infra, Sec. 435.
10 See infra, Sec. 1983 et seq.
rity, and after maturity though they lose the attribute of negotiability they are still fully assignable.11
5. Certain covenants in conveyances, including leases, are said to run with the land; that is, - ownership of the land may involve a right to enforce a covenant or an obligation to perform it.
" The test whether a covenant runs with the land or is merely personal is whether the covenant concerns the thing granted and the occupation or enjoyment of it, or is a collateral and personal covenant not immediately concerning the thing granted. If a covenant concerns the land and the enjoyment of it, its benefit or obligation passes with the ownership, but to have that effect the covenant must respect the thing granted or demised, and the act to be done or permitted must concern the land or estate conveyed." 12
The law upon this subject has grown up rather in connection with the law of real property and since it is ordinarily considered in that connection will not here be discussed, though analytically the subject belongs with contracts. It is then the assignment of contractual rights and duties not falling within these exceptional cases which will be considered in this chapter.