§ 563. The assignment of a chose in action is a sufficient consideration for a promise by the assignee, unless it be void for illegality or other sufficient reason.1 An assignment of a chose in action will not, at the common law, however, confer upon the assignee a right of action in his own name against the original debtor, unless such debtor either expressly promise to pay the assignee, or unless the assignment be made with his assent, in which case the law implies a promise from him to the assignee, the consideration of which is the discharge of liability to the assignor in respect of the claim.2
§ 564. There are, however, certain exceptions to this rule, which obtain at law in favor of negotiable instruments, and which are created by the policy of the law, to answer the demands of public convenience. Wherever, therefore, the contract is negotiable, if it be payable to order, it may be assigned by mere indorsement, and if it be payable to bearer, a mere delivery constitutes a sufficient assignment.3 In equity, however, this distinction between negotiable instruments and instruments not negotiable is wholly disregarded. Every bond fide assignment for a valuable consideration is considered as a declaration of trust, and confers upon the assignee the same rights of action against the original debtor as the assignor himself would have.1
1 See Graham v. Grade, 13 Q. B. 548; Whittle v. Skinner, 23 Vt. 532; Edson v. Fuller, 2 Fost. 185; Harrison v. Knight, 7 Tex. 47; Sherman v. Barnard, 19 Barb. 301. For a full consideration of. this subject, see ante, ch. xiv.
2 Tiernan v. Jackson, 5 Peters, 597; Crowfoot v. Gurney, 9 Bing. 372; Hodgson v. Anderson, 3 B. & C. 842; Baron v. Husband, 4 B. & Ad. 611; 2 Story, Eq. Jur. § 1039. See Price v. Seaman, 4 B. & C. 525; Edson v. Fuller, 2 Fost. 185; Graham v. Gracie, 13 Q. B. 548; Whittle v. Skinner, 23 Vt. 532.
3 Fenner v. Meares, 2 W. Bl. 1269; Israel v. Douglas, 1 H. Bl. 239; Mowry v. Todd, 12 Mass. 283; Jones v. Witter, 13 Mass. 307; Crocker v. Whitney, 10 Mass. 319; Coolidge v. Ruggles, 15 Mass. 388; Lampet's Case, 10 Co. 48 a; Thallhimer v. Brinckerhoff, 3 Cow. 623; Com. Dig. Assignment, D.; Tiernan v. Jackson, 5 Peters, 597; Williams v. Everett, 14 East, 582; Crowfoot v. Gurney, 9 Bing. 372; Hodgson v. Anderson, 3 B. & C. 842; Baron v. Husband, 4 B. & Ad. 611; Mandeville v. Welch, 5 Wheat. 277.
§ 565. Again, not only possibilities, expectancies, and contingent rights may be assigned in equity, but may be made the subject of a contract which could be enforced upon the happening of the event on which the contingency is founded, and not before.2 An unliquidated account has been held assignable.3 Courts of law, however, now follow the doctrine of equity, as far as possible, without infringing upon established principles of common law; and the beneficial interest of the assignee is so far protected, that it has even been held the defendant may set off a debt due to the assignee in like manner as if the suit had been brought in his name.4
§ 566. Whenever assignments are illegal or against public policy, they will not be sustained either in equity or law; and, therefore, will constitute no consideration for a promise.5 Thus, the assignment of his pay by an officer in the army or navy;6 or an assignment which savors of maintenance;7 or the assignment of a right of action for a tort,8 - will not support a contract.
§ 567. Where a chose in action is assigned to the government, no express promise is necessary from the original debtor, and the government may sue in its own name.9 But where the assignment is of a claim barred by the statute of limitations, it acquires no new validity thereby.1
1 2 Story, Eq. Jur. § 1040, 1055; Langton v. Horton, 5 Beav. 9; Trull v. Eastman, 3 Met. 121; Goring v. Bickerstaff, 1 Cas. Ch. 8; 1 Madd. Ch. Pr. 437; 1 Fonbl. Eq. B. 1, ch. 4, § 2, and note g; Com. Dig. Chancery, 2 H. Assignment; Duke of Chandos v. Talbot, 2 P. Wms. 603; Story on Bills of Ex. § 199, 201.
2 2 Story, Eq. Jur. § 1040, 1040 b; Stokes v. Holden, 1 Keen, 145; Wells v. Foster, 8 M. & W. 149. See § 469.
3 Wescott w. Potter, 40 Vt. 272 (1867), overruling the dictum of Red-field, J., in Whittle v. Skinner, 23 Vt. 531.
4 Corser v. Craig, 1 Wash. C. C. 424.
6 See Greville v. Attkins, 9 B. & C. 462; Waldo v. Martin, 4 B. & C. 319.
6 Flarty v. Odium, 3 T. R. 681; Wells v. Foster, 8 M. & W. 149; Davis v. Duke of Marlborough, 1 Swanst. 79; Stone v. Lidderdale, 2 Anst. 533; 2 Story, Eq. Jur. § 1040 d to 1040/.
7 Prosser v. Edmonds, 1 Younge & Coll. 481, 496. See post, § 578, 579.
8 Gardner v. Adams, 12 Wend. 297; Commonwealth v. Fuqua, 3 Litt. 41.
9 Bac. Abr. Prerogative, 2, 3; The King v. Twine, Cro. Jac. 180.