§ 464. In the next place, there may be a change of interest, duty, and responsibility between parties, growing out of an assignment of the old contract, or the novation or substitution of a new one,1 - and this we propose now to consider.
§ 465. By the old rule of the common law, the assignment of a chose in action was prohibited, on the ground that litigation would be thereby encouraged and suits multiplied.2 The only admitted exception was in favor of the king, the policy of the rule not applying to him.3 Nominally the same doctrine still obtains at law, but practically it has lost all its force, and degenerated into a mere form, while in equity it is totally disregarded,4 and every bond fide assignment for a valuable con-
1 Co. Litt. 232 b, Butler's note.
2 Master v. Miller, 4 T. R. 320; Lampet's Case, 10 Co. 48 a; Thallhimer v. Brinckerhoff, 3 Cow. 623. In Bacon's Abridgment, tit. Obligation, A., it is stated, that "a bond is a chose in action, which cannot be assigned over, so as to enable the assignee to sue in his own name; yet he has, by the assignment, such a title to the paper and wax that he may keep or cancel it."
3 Ibid.; Stafford v. Buckley, 2 Ves. 177, 181; Breverton's Case, Dyer, 30 b; Co. Litt. 232 6, note 1. And see United States v. Buford, 3 Peters, 30.
4 Gibson v. Cooke, 20 Pick. 17. Mr. Justice Dewey, in this case, says: "The doctrine of equitable assignments has been gradually extending to meet the convenience of trade and business, and has been favorably viewed in the courts of law, subject, however, to the legal principle, that in such cases the assignee can enforce his claim only in the name of the assignor, unless there be an express promise by the debtor to pay the assignee. Under this limitation choses in action generally may be the subject of an assignment; and debts which are contingent, and money yet to become due, may well be assigned, these circumstances only operating to postpone the liability of the debtor until the contingency happens and the money becomes payable." sideration is treated as a declaration of trust, conferring upon the assignee the same rights against the original debtor as the assignor himself would have had.1 And even if the assignment be without consideration, yet, if the debtor has made a new promise to the assignee, this has been held a valid assignment.2
§ 466. The doctrine formerly obtained that the instrument by which an assignment was made must be of as high a nature as the instrument assigned.3 But this rule has been very much modified, if not quite overthrown, by the late cases, and it seems that the assignment of a contract may now be executed simply by a transfer of the evidence of the contract.4 But there must be an actual delivery, - and a bare agreement to deliver, without any actual or symbolical transfer of the evidence of the contract, would be insufficient. Thus, an indorsement on an instrument, directing a debtor to pay to a third person a portion of the amount due, would not be operative as an assignment, so long as the instrument remained in the hands of the creditor, although the debtor had notice of the indorsement.6
§ 467. The policy of courts of equity has been to uphold and give effect to assignments in cases where they would not be supported at common law. No particular form is necessary in equity to constitute an assignment; any order, writing, or act by a creditor, which makes an appropriation of a fund belonging to him, in the hands of the debtor, being sufficient.1 The order should, however, be direct upon the debtor or person holding the funds of the drawer; and an authority given to a person not privy to the contract to receive and pay over funds in the hands of the debtor, would not constitute a sufficient assignment in equity.2 Thus, where A., the engineer of a railway company, being indebted to his banker, wrote to the solicitors of the company, authorizing them to receive the money due to him from the company, and requesting them to pay it over to the banker, and the solicitors, by letter promised the banker to pay him such money on receiving it, it was held, that the transaction did not constitute an equitable assignment of the debt, the solicitors not being privy to the contract, and that the letter of A. should have been to the company itself.3
1 2 Story, Eq. Jur. § 1040, 1055; Langton v. Horton, 1 Hare, 549; Trull v. Eastman, 3 Met. 121; Goring v. Bickerstaff, 1 Ch. Cas. 8; 1 Madd. Ch. Prac. 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; Hinkle v. Wanzer, 17 How. 353; Haskell v. Hilton, 30 Me. 419.
2 Smilie v. Stevens, 41 Vt. 321 (1868).
3 Wood v. Partridge, 11 Mass. 488; Perkins v. Parker, 1 Mass. 117; Brewer v. Dyer, 7 Cush. 338; Dennis v. Twitchell, 10 Met. 180.
4 Jones v. Witter, 13 Mass. 304; Dunn v. Snell, 15 Mass. 481; Dennis v. Twitchell, 10 Met. 180; Ford v. Stuart, 19 Johns. 342; Tibbits v. George, 5 Ad. & El. 107; Prescott v. Hull, 17 Johns. 284; Robbins v. Bacon, 3 Greenl. 346; Porter v. Bullard, 26 Me. 448; Vose v. Handy, 2 Greenl. 322. And see Currier v. Howard, 14 Gray, 511 (1860).
5 Whittle v. Skinner, 23 Vt. 531; Palmer v. Merrill, 6 Cush. 282.
1 2 Story, Eq. Jur. § 1043 to 1047; Row v. Dawson, 1 Ves. 332; Ex parte South, 3 Swanst. 393; Morton v. Naylor, 1 Hill, 583; Clemson v. Davidson, 5 Binn. 392; Crowfoot v. Gurney, 2 Moo. & S. 473; 8. C. 9 Bing. 372; Ryall v. Rowles, 1 Ves. 348; Burn v. Carvalho, 4 Myl. & Cr. 690.
2 Rodick v. Gandell, 1 De G. M. & G. 763; 15 Eng. Law & Eq. 22, 28; Garrard v. Lord Lauderdale, 3 Sim. 1. See post, § 450 et seq.
3 Rodick v. Gandell, 1 De G. M. & G. 763; 15 Eng. Law & Eq. 22. In this case Lord Truro commented thus on the authorities: "I think the case may properly be decided upon the main ground of equity made by the bill, that is, whether the letters relied upon constitute a valid equitable assignment of the debts due from the several railway companies mentioned in those letters, according to the law of this court, as pronounced by Lord Eldon in Ex parte South, 3 Swanst. 392, and by Lord Cottenham in Burn v. Carvalho, 4 Myl. & Cr. 690.