sustain such an action the promise must be express,1 but it has been held by other courts that the promise may be implied from the acts of the debtor as well as expressly proved.2

Consideration for Promise. It is the established rule in the United States that an assignment for a valuable consideration, with notice to the debtor, imposes on him an equitable and moral obligation to pay the assignee, which is a good consideration for an express promise to that effect. This has been held to be a sufficient consideration in England also, but some of the recent authorities there seem to consider that a new and additional consideration, as forbearance or something equivalent, should induce the promise of the debtor to the assignee.5

(d) Under Statutes.-The rule of law requiring the assignee of a chose in action to sue in the name of the assignor is now generally abolished, and it is provided by statute in most states that the assignee, as the real party in interest, may maintain the action in his own name;6 and in some states the

1. Express Promise.-Parkhurst v. Dickerson, 21 Pick. (Mass.) 307; Dubois v. Doubleday, 9 Wend. (N. Y.) 317.

Mere Consent to Assignment Not Sufficient.In order for the assignee of an insurance policy to recover in his own name, there must be an express promise by the obligor to be responsible to the assignee, even though the assignment be made with his consent. Jessel v. Williamsburgh Ins. Co., 3 Hill (N. Y.) 88.

2. Implied Promise. Carlyle v. Carlyle Water, etc., Co., 140 Ill. 445; Barger v. Collins, 7 Har. & J (Md.) 213; Stewart v. Rogers, 19 Md. 98.

3. Consideration for Promise-Connecticut. -The assignment of a chose in action will be a good consideration for the promise of the debtor to pay the assignee, who may maintain an action in his own name on such promise. I Swift's Digest (Rev.) of the Laws of Connecticut 438.

Maine. Smith v. Berry, 18 Me. 122; Warren v. Wheeler, 21 Me. 484.

Massachusetts.-Crocker v. Whitney, 10 Mass. 319 (but see Rand's note to this case); Derby v. Sanford, 9 Cush. (Mass.) 263 (per Shaw, C. J.). See also Skinner v. Somes, 14 Mass. 107.

New Hampshire.-Currier v. Hodgdon, 3 N. H. 82; Morse v. Bellows, 7 N. H. 549, 28 Am. Dec. 372 (per Upham, J.); Edson v. Fuller, 22 N. H. 183.

Rhode Island.-Clarke v. Thompson, 2 R. I. 146.

Vermont.-Moar v. Wright, 1 Vt. 57; Bucklin v. Ward, 7 Vt. 195; Stiles v. Farrar, 18 Vt. 444. See also Phalan v. Stiles, 11 Vt. 82. Contra-Illinois. To enable the assignee of a chose in action to sue thereon in his own name there must be something more than a mere promise on the part of the debtor to pay the assignee. There must be a communication and a new arrangement between all the parties, by which the assignor's claim upon his debtor, and his liability to the assignee, are extinguished. McKinney v. Alvis, 14 Ill. 33. See also Lindley v. Simpson, 45 Ill. App. 648. And see, as to rule in Georgia, Kendrick v. Glover, I Ga. Dec. 63.

See further that the assignment of a chose in action is a good consideration for a promise,

Greene v. Bartholomew, 34 Ind. 235; Whittle v. Skinner, 23 Vt. 531.

4. English Rule.-Innes v. Dunlop, 8 T. R. 595. See also Fenner v. Meares, 2 W. Bl. 1269; Price v. Seaman, 4 B. & C. 525, 10 E. C. L. 400.

5. I Chit. Pl. 18. See also Wharton v. Walker, 4 B. & C. 163, 10 E. C. L. 302; Oble v. Dittlesfield, 1 Vent. 153; Forth v. Stanton, I Saund. 210, and note 1.

It would seem that in England the rule at present is to require the consideration of forbearance or some other new consideration, to enable the assignee to proceed in his own See DeBarry v. Withers, 44 Pa. St. 356; Moar v. Wright, 1 Vt. 57.

name.

See generally the title CONSIDERATION.
6. Statutory Right of Assignee to Sue in His
Own Name.-1 Stimson Am. Stat. Law 4032.
Arizona.-Sroufe v. Soto (Arizona, 1896), 43
Pac. Rep. 221.

Arkansas.-The assignee of bonds, bills, notes, etc., for the payment of money or property, may sue thereon in his own name. Block v. Walker, 2 Ark. 4; Purdy v. Brown, 4 Ark. 535; Owen v. Lavine, 14 Ark. 389; Worthington v. Curd, 15 Ark. 491.

California.-Lazard v. Wheeler, 22 Cal.
139; More v. Massini, 32 Cal. 590.
Indiana.-Strong v. Clem, 12 Ind. 37, 74
Am. Dec. 200.

Iowa.- Goodnow v. Litchfield, 63 Iowa

275.

Kansas.-Stewart v. Balderston, 10 Kan.

131.

Maine.-National Exch. Bank v. McLoon, 73 Me. 498.

Michigan.-Final v. Backus, 18 Mich. 218; Cook v. Bell, 18 Mich. 387; Grant v. Smith, 26 Mich. 201; Upham v. Dickinson, 38 Mich. 338.

A written contract for the sale of land is such a chose in action as can be sued on by the assignee in his name, under Michigan Comp. L., § 4159, Laws 1863, p. 102. The statute embraces every right of property which was ever assignable in equity or capable of survivorship to the executor. Cook v. Bell, 18 Mich. 387.

Minnesota.-Tuttle v. Howe, 14 Minn. 145, 100 Am. Dec. 205.

Missouri.-Goodger v. Finn, 10 Mo. App.

assignee may sue either in his own name or in that of the assignor.1

Effect of the Statutes. It has been held that this statutory provision, and the further clause found in the statutes of several states, that this section shall not be deemed to authorize the assignment of a thing in action not arising out of contract, does not affect the assignability of choses in action in any respect; no new right of action is created, nor authority given to assign a right of action not before assignable. The only change made by the

226; Walker v. Mauro, 18 Mo. 564; Smith v. Schibel, 19 Mo. 140; Long v. Constant, 19 Mo. 320, 61 Am. Dec. 559; Peters v. St. Louis, etc., R. Co., 24 Mo. 586; Long v. Heinrich, 46 Mo. 603; Snyder v. Wabash, etc., R. Co., 86 Mo. 623, 29 Am. & Eng. R. Cas. 237. The assignee of an open account cannot recover thereon in Missouri in his own name without some proof of the assignment. Turner v. Hayden, 33 Mo. App. 15.

Nebraska.-Mills v. Murry, 1 Neb. 327. Nevada.-Carpenter v. Johnson, I Nev. 331. New Jersey.-Under the Practice Act of 1855, the assignee of a chose in action for a valuable consideration, if the assignor be dead, may sue for and recover the same in his own name. But it is an essential condition that the assignment be made for a valuable consideration. Andrews v. Rue, 34 N. J. L. 402.

New York.-Johnston v. Bennett, 5 Abb. Pr. N. S. (N. Y. Super. Ct.) 331; Platt v. Stout, 14 Abb. Pr. (N. Y. Supreme Ct.) 178; Billings v. Jane, 11 Barb. (N. Y.) 621; Butler v. New York, etc., R. Co., 22 Barb. (N. Y.) 110; Smith v. New York, etc., R. Co., 28 Barb. (N. Y.) 605, 16 How. Pr. (N. Y.) 277; Genet v. Howland, 45 Barb. (N. Y.) 566, 30 How. Pr. (N. Y.) 360; Van Rensselaer v. Owen, 48 Barb. (N. Y.) 61, 33 How. Pr. (N. Y.) 16; Graves v. Spier, 58 Barb. (N. Y.) 349; Sheldon v. Wood, 2 Bosw. (N. Y.) 267; Drake v. Smith, 12 Hun (N. Y.) 532: Jackson v. Daggett, 24 Hun (N. Y.) 204; Sharp v. Edgar, 3 Sandf. (N. Y.) 379: Hastings v. McKinley, i E. D. Smith (N. Y.) 273; Munson v. Riley, 2 E. D. Smith (N. Y.) 130; Monahan v. Story, 2 E. D. Smith (N. Y.) 393; McKee v. Judd, 12 N. Y. 624, 64 Am. Dec. 515; Richtmeyer v. Remsen, 38 N. Y. 206.

Where a contract for the payment of money has been assigned for the benefit of a third person, the assignee may sue thereon in his own name, under the New York Code, as a trustee of an express trust. Cummins v. Barkalow, I Abb. App. Dec. (N. Y.) 479, 4 Keyes (N. Y.) 514.

North Carolina.-Moore v. Nowell, 94 N. Car. 265.

Ohio.- Hall v. Cincinnati, etc., R. Co., I Disney (Ohio) 58; Allen v. Miller, 11 Ohio

St. 374.

Oregon.-Little v. Portland, 26 Oregon 235. Texas.-Devine v. Martin, 15 Tex. 30; Smalley v. Taylor, 33 Tex. 668.

The common-law rule that the legal title of a chose in action was not assignable is not in force in Texas, and an assignee of such right of action, holding both the legal and equitable title, should sue thereon in his own name. Winn v. Fort Worth, etc., R. Co. (Tex. Civ. App. 1896), 33 S. W. Rep. 593.

Virginia.-Tyler v. Ricamore, 87 Va. 466.

West Virginia.-Thomas v. Linn (W. Va. 1894), 20 S. E. Rep. 878.

Wisconsin.-Smith v. Chicago, etc., R. Co., 23 Wis. 267; Tyson v. McGuineas, 25 Wis. 656; Webber v. Quaw, 46 Wis. 118.

Canada.-Blair v. Ellis, 34 U. C. Q. B. 466. An Assignment by Way of a Pledge to secure the payment of money is not such an assignment as would enable the assignee, under 35 Vict., c. 12, § 1, O., to sue in his own name. Hostrawser v. Robinson, 23 U. C. C. P. 350.

Accrued Cause of Action- Michigan. - The right to transfer an accrued cause of action is secured in Michigan by statute, and such a right cannot be defeated. Thus a provision in a fire insurance policy that it shall be forfeited if assigned without the company's consent cannot defeat an assignment of such a policy made after the loss without the consent of the company. Roger Williams Ins. Co. v. Carrington, 43 Mich. 252.

Real Party in Interest.-The assignee of a chose in action, by a valid written assignment, is the "real party in interest," although the money, if recovered, is to go to others. Allen v. Brown, 44 N. Y. 228, affirming 51 Barb. (N. Y.) 86; Meeker v. Claghorn, 44 N. Y. 349; Sroufe v. Soto (Arizona, 1896), 43 Pac. Rep. 221; Anderson v. Reardon, 46 Minn. 185; Struckmeyer v. Lamb (Minn. 1896), 65 N. W. Rep. 930. See also Ward v. Hughes, 8 Ont. Rep. 138. But see Hall v. Erwin, 60 Barb. (N. Y.) 349. Compare, in Nebraska, Hoagland v. Van Etten, 23 Neb. 462.

The assignee of a note and account sued on is the "real party in interest," within the meaning of the Colorado Code, although the consideration for the assignment is not to be paid until after recovery. Bassett v. Inman, 7 Colo. 270.

Right of Assignor to Sue.-If the assignment divests the assignor of all title, both legal and equitable, to a cause of action, he is not entitled to sue. Beck v. Rosser, 68 Miss. 72; East Texas F. Ins. Co. v. Coffee, 61 Tex. 287.

But if, notwithstanding the assignment, the legal title remains in him he can maintain the suit. Allison v. Phoenix Assur. Co., 87 Tex. 593. See Winn v. Fort Worth, etc., R. Co. (Tex. Civ. App. 1896), 33 S. W. Rep. 593. 1. Action in Name of Assignor or of Assignee.— McDonald v. Laughlin, 74 Me. 480; Park v. Toledo, etc., R. Co., 41 Mich. 352. See also Mims v. Swartz, 37 Tex. 13.

Under the South Carolina Act of 1798, the assignee of a bond was not compelled to sue in his own name; he might sue in the name of the assignor. Coachman v. Hunt, 2 Rich. (S. Car.) 450.

2. Question of Assignability Not Affected by Statute. Pomeroy on Remedies and Remedial Rights, § 144.

statutes is to transfer with the beneficial interest the right of action also in those cases where the court, before the statutes were enacted, would recognize and protect the rights of the assignee.1

b. OF THE PARTY LIABLE 2-Before Notice. The debtor or party liable on an assigned chose in action is not affected by the assignment until he has notice thereof, and consequently he may set up against the claims of the assignee any defense acquired before notice that would avail him against the assignor, had there been no assignment. Thus payment by the debtor to the assignor, or any compromise or release of the assigned claim by the latter. before notice, will be valid against the assignee and discharge the debtor.3

But after Notice the debtor cannot do anything to prejudice the rights of the assignee; he cannot avail himself of any subsequent payment, discharge, or release of the claim assigned, nor acquire any new obligations of the assignor and offset them to the prejudice of the assignee.*

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