This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Under the influence of the doctrines of equity,1 the common-law rule forbidding assignment gradually broke down and finally degenerated into a mere rule of pleading. Contracts which were assignable in equity could be sued on at law, but the action had to be brought in the name of the assignor.2 Originally a power of attorney was given to the assignee to bring an action against the debtor in the name of the assignor, but eventually the assignee was allowed to bring such action without express words authorizing him to sue in the name of the assignor.3 The authority of the assignee was sufficient to justify the attorneys in bringing the action in the name of the assignor.4 At the same time the assignor, though a formal party, was a substantial and necessary party,1 and an action could not be Drought in the name of the assignor after his death; 6 nor, if it were thus brought, could the declaration be amended by substituting the name of the executor or administrator of the assignor as the nominal plaintiff in place of the deceased assignor.7 The assignor had a right to security against any liability for costs,8 but if this were given, the assignee had sole control of the action.9 The assignor could not dismiss the action, and a judgment of dismissal under a collusive agreement between the assignor and the debtor, is not a bar to a subsequent action by the assignee.10 The assignor could not, by any act of his, impair the rights of the assignee, at least after notice was given to the debtor.11 The assignor could not release the cause of action;12 he could not receive payment of the debt so as to affect the rights of the assignee;13 nor were his declarations against interest admissible when made after assignment.14
23 See Sec. 2241 et seq.
24 Plowman v. Riddle, 14 Ala. 169; Field v. Maghee, 5 Paige, 559; Rogers v. Traders' Ins. Co., 6 Paige 583; Sedgwick v. Cleveland, 7 Paige 287; Coale v. Mildred's Admr., 3 Har. & J. (Md.) 278; Varney v. Bartlett, 5 Wis. 276.
25 England. Brace v. Harrington, 2 Atk. 235.
United States. Boon v. Chiles, 33 U. S. (8 Pet.) 532, 8 L. ed. 1034; O'shaugnessy v. Humes, 129 Fed. 953.
Massachusetts. Allyn v. Allyn, 154 Mass. 570, 28 N. E. 779.
Ohio. McGuffey v. Finley, 20 Ohio, 474
Virginia. Tatum v. Ballard, 94 Va. 370, 26 S. E. 871.
1 See Sec. 2239.
2 England. Master v. Miller, 4 T. R. 320.
United States. New York Guaranty Co, v. Water Co., 107 U. S. 205, 27 L.
ed. 484; Shaffer v. Federal Cement Co., 225 Fed. 893 [judgment modified, Federal Cement Co. v. Shaffer, 229 Fed. 1021, 143 C. C. A. 662].
Arkansas. Baker-Matthews Mfg. Co. v. Grayling Lumber Co., 134 Ark. 361, 203 S. W. 1021.
Illinois. Congress Construction Co. v. Libbey Co., 199 111. 398, 65 N. E. 357 [affirming, 101 111. App. 279].
Kentucky. Marshall v. Craig, 6 Ky. (3 Bibb.) 291.
Massachusetts. Foss v. Lowell Five Cent Savings Bank, 111 Mass. 285; Leach v. Greene, 116 Mass. 534.
Ohio. Townsend v. Carpenter, 11 Ohio 21.
3 Allen's Case, Owen 113 (a case involving an assignment by the crown).
4 Massachusetts Construction Co. v. Kidd, 142 Fed. 285.
5 Karrick v. Wetmore, 22 D. C. App. 487.
The interest of the assignee was such that it was sufficient consideration for a promise by the debtor to the assignee to pay the debt to the assignee, and if the debtor made such promise, the assignee could maintain an action at law in his own name against the debtor.15 A promise by the debtor to the assignor to pay the debt to the orderof the creditor was held to authorize a subsequent assignee to bring an action at law in his own name for money had and received to his use.16
6Karrick v. Wetmore, 22 D. C. App. 487.
7Karrick v. Wetmore, 22 D. C. App. 487.
8 Illinois. Chapman v. Shattuck, 8 111. 49.
Maine. Southwick v. Hopkins, 47 Me. 362.
Massachusetts. Fay v. Guynon, 131 Mass. 31.
New Hampshire. Gordon v. Drury, 20 N. H. 363.
Texas. Allen v. Pannell, 51 Tex. 165.
9 Welch v. Mandeville, 14 U. S. (I Wheat.) 233, 4 L. ed. 79; Southwick v. Hopkins, 47 Me. 362; Elsberg v. Honeck, 76 N. J. L. 181, 68 Atl 1090.
10 Welch v. Mandeville, 14 U. S. (1 Wheat.) 233, 4 L. ed 79.
11 Legh v. Legh, 1 B. & P. 447; Webb v. Steele, 13 N. H. 230; Raymond v. Squire, 11 Johns. 47.
12 Ransom v. Jones, 2 111. 291; Marr v. Hanna. 30 Kv. (7 J. J. Mar.) 642.
23 Am. Dec. 449; Martin v. Hawkins, 15 Johns. (N. Y.) 405. See Sec. 2264 and 2277.
13 England. Brandt v. Dunlop Rubber Co. , A. C. 454.
Iowa. Kithcart v. Kithcart, 145 Ia. 549, 30 L. R. A. (N.S.) 1062, 124 N. W. 305.
Massachusetts. Buttrick Lumber Go. v. Collins, 202 Mass. 413, 89 N. E. 138.
New York. Ten Broeck v. DeWitt, 10 Wend. (N. Y.) 617.
Ohio. Welsh v. Childs, 17 O. S. 319.
Wisconsin. Pier v. Bullis, 48 Wis. 429, 4 N. W. 381.
14 Dazey v. Mills, 10 111 67; Wing v. Bishop, 85 Mass. (3 All.) 456; Frear v. Evertson, 20 Johns. (N. Y.) 142; Hough v. Barton, 20 Vt. 455.
15 England. Israel v. Douglas, 1 H. Bl. 239; Wilson v. Coupland, 5 Barn. & Ald. 228.
Florida. Hooker v. Gallagher, 6 Fla. 351.
When this stage was reached, the assignee was regarded at law, as he was in equity, as the real party in interest, but at law the old procedural rule survived and the action still had to be brought in the name of the assignor. In other respects, assignment had developed from giving to the assignee a mere personal right against the assignor to recover the proceeds of the transaction between the assignor and his debtor, to giving to the assignee a claim against the debtor directly, which the assignee could assert against the debtor, though by an action in the name of the assignor.