officer for the time being of a society. Such a document, whether treasurer, in the form of a promissory note (a) or of a bill of exchange (b), &c., for time being, is invalid, for the payee must be a person capable of being invalid. ascertained at the time of making the note or accepting the bill. There is no doubt that a contract in any other form to pay the treasurer for the time being would be equally inoperative to give any right of action to the person who should from time to time fill the office (c). But a promissory note payable to "the trustees of the W. chapel or their treasurer for the time being" is good: for it is considered that the trustees existing at the date of the note are the persons ascertained as payees, and that the treasurer is named only as their agent to receive payment (d). Contrivances of this kind have not, so far as we know, come before our courts of equity; indeed their chief object has been to avoid the necessity of suing in equity. Where the parties interested are numerous, the practice of equity allows a few or one to represent a class having the same interest; but a person not really interested could not be put forward as a representative (e). 4. We now come to the fourth rule, which we have expressed Rule 4. thus: Transfer of rights Persons other than the creditor may become entitled by repre- under consentation or assignment to stand in the creditor's place and to exercise his rights under the contract. We need say nothing here about the right of personal representatives to enforce the contracts of the person they represent, except that it has been recognized from the earliest period of the history of our present system of law (ƒ). With regard to assignment, the benefit of a contract cannot be assigned (except by the Crown) at common law so as to enable the assignee to sue in his (a) Storm v. Stirling, 3 E. & B. 832, 23 L. J. Q. B. 298; in Ex. Ch. nom. Cowie v. Stirling, 6 E. & B. 333, 25 L. J. Q. B. 335. (b) Yates v. Nash, 8 C. B. N. S. 581, 29 L. J. C. P. 306. (c) Pigott v. Thompson, 3 Bos. & P. 147. (d) Holmes v. Jaques, L. R. 1 Q. B. 376. (e) Cp. as to shareholders' suits Forrest v. Manchester, &c., Ry. Co. 4 D. F. J. 126, Robson v. Dodds, 8 (f) Subject to some technical tract. tract not at common law: Right to own name (a). The origin of the rule was attributed by Coke sue on con- to the "wisdom and policy of the founders of our law" in disassignable couraging maintenance and litigation (b): but there can be little or no doubt that it was in truth a logical consequence of the probable primitive view of a contract as creating a strictly personal obliorigin of gation between the creditor and the debtor (c). Anyhow, it has the rule. been long established that the proper course at common law is for the assignee to sue in the name of the assignor. It appears from the Year Books that attempts were sometimes made to object to actions of this kind on the ground of maintenance, but without success (d). The same rule is very distinctly stated by Gaius as prevailing in the Roman law (e). In equity assignee may sue. Limitations of assignee's rights. In equity the right of the assignee to sue in his own name has been recognized for some considerable time; it is perhaps impossible to say precisely for how long, but at any rate since the rules of equity have been at all systematic (f). However we are here concerned not so much with the existence of rights under a contract derived from the original creditor by assignment as with the limitations to which those rights are generally subject, the extensions of which they are sometimes capable, and the peculiar modes of transfer appropriate to the rights and duties arising out of some special kinds of contracts. The limitations are expressed in the explanations we have added to the rule, which are as follows: (a) Termes de la Ley, tit. Chose in Action. (b) Lampet's ca. 10 Co. Rep. 48a. For exposition of the rule in detail see Dicey on Parties, 115. (c) Spence, Eq. Jurisd. of Chy. 2.850. An examination of the earlier authorities has been found to confirm this view. The rule is assumed as unquestionable, and there is no trace of Coke's reason for it. The objection of maintenance was set up, not against the assignee suing in his own name, which was never attempted so far as we can find, but against his suing in the name of the assignor: see following note. (d) Y. B. 9 H. 6. 64, pl. 17; 34 H. 6. 30, pl. 15; 15 H. 7. 2, pl. 3 ; Brooke, Abr. 140b. (e) Gai. 2. 38, 39. Quod mihi ab aliquo debetur, id si velim tibi deberi, nullo eorum modo, quibus res corporales ad alium transferuntur, id efficere possum; sed opus est, ut iubente me tu ab eo stipuleris: quae res efficit ut a me liberetur et incipiat tibi teneri. quae dicitur novatio obligationis. Sine hac vero novatione non poteris tuo nomine agere, sed debes ex persona mea quasi cognitor aut procurator meus experiri. (f) There is a curious case in Y. B. 37 H. 6. 13, pl. 3, from which it seems that equitable assignments were then unknown. For collections of authorities on the modern doctrine of equitable assignments in general, see Lewin on Trusts, 496 sqq.; 2 Wh. & T. L. C. 734, notes to Ryall v. Rowles; Leake 601. 1st. Title by assignment is not complete as against the debtor without notice to the debtor, and a debtor who performs his contract to the original creditor without notice of any assignment by the creditor is thereby discharged. 2nd. The debtor is entitled as against the representatives, and, unless a contrary intention appears by the original contract, [this modification has been introduced, as we shall see, by a series of quite recent decisions] as against the assignees of the creditor, to the benefit of any defence which he might have had against the creditor himself. under Ju The Supreme Court of Judicature Act, 1873, (s. 25, sub-s. 6), Legal right creates a legal right modelled on the equitable right, but confined of assignee to cases where the assignment is absolute, and by writing under dicature the hand of the assignor, and express notice in writing has been Act, 1873. given to the debtor. more extensive: These restrictions are but partly known in equity. By the Inequity Statute of Frauds (29 Car. 2, c. 3, s. 9) "all grants and assignments of any trust or confidence" must be in writing signed by how far the assignor, and by s. 7 equitable interests in land must be governed by Stat. of created by writing. S. 9 does not at all events require writing Frauds, qu. for the creation in the first instance by the legal owner or creditor of an equitable interest in personal property or a chose in action: and it may be argued perhaps that its operation is altogether confined to interests in land by the context in which it occurs. The writer is not aware of any decision upon it (a). As for the notice to the debtor, the rule of equity is that it must be express but need not be in writing (b). There will therefore remain a great number of cases where the right is purely equitable, although the enlarged jurisdiction of every branch of the Supreme Court will make the distinction less material than formerly. Several partial exceptions to the common law rule have been In other made at different times by modern statutes, on which however it special cases by seems unnecessary to dwell. The more important instances are former these: East India bonds, 51 Geo. 3, c. 64, s. 4, which makes them negotiable. (a) See 1 Sanders on Uses (5th ed.) 343. (b) Re Tichener, 35 Beav. 317. statutes. Rules of Mortgage debentures issued by land companies under the Mortgage Debenture Act 1865, 28 & 29 Vict. c. 78, amended by 33 and 34 Vict. c. 20. Policies of life assurance: 30 & 31 Vict. c. 144. Policies of marine assurance: 31 & 32 Vict. c. 86. Things in action of companies (Companies Act 1862, s. 157) and bankrupts (Bankruptcy Act 1869, s. 111) assigned in pursuance of those acts respectively. As to the effect of registration under the present acts of previously existing companies, &c. in transferring the right to sue on the contracts made by the company or its officers in its former state, see the Companies Act 1862, s. 193, Lindley 1. 507, note (u). Transferable debentures may be issued by "county authorities" (i.e. justices in general, quarter, or gaol sessions, who for the purposes of the Act are incorporated, see s. 18) under the County Debentures Act 1873, 36 & 37 Vict. c. 35. Qu. are they negotiable? See ss. 5, 8, 20, 23. The ordinary rules of equitable assignment are fully illustrated in the treatises above referred to, especially Mr. Lewin's, and in this place we will only touch briefly on them before proceeding to the exceptions. 1. As to notice to the debtor. Notice is not necessary to comequitable plete the assignee's equitable right as against the original creditor assignment in general. himself, or as against his representatives, including assignees in Notice to bankruptcy (a): but the claims of competing assignees or incum debtor. brancers rank as between themselves not according to the order in date of the assignments, but according to the dates at which they have respectively given notice to the debtor. This was decided by the cases of Dearle v. Hall and Lover idge v. Cooper (b), the principle of which was soon afterwards affirmed by the House of Lords (c). The same rule prevails in the modern civil law (d) and has been adopted from it in the Scottish law (e): and the true reason of it, though not made very prominent in the decisions which established the rule in England, is the protection of the debtor. He has a right to look to the person with whom he made his contract to accept performance of it, and to give him a discharge, unless and until he is distinctly informed that he is to (a) Burn v. Carvalho, 4 M. & Cr. 690. (b) 3 Russ. 1, 38, 48. (c) Foster v. Cockerell, 3 Cl. & F. 456. (d) See Pothier, Contrat de Vente, §§ 560, 554 sqq. (e) Erskine Inst. Bk. 3, Tit. 5. look to some other person. According to the original strict conception of contract, ("à ne considérer que la subtilité du droit" as Pothier (a) expressed it) his creditor or his creditor's assignee cannot even require him to do this, any more than in the converse but substantially different case a debtor can require his creditor to accept another person's liability, and his assent must be expressed by a novation, i.e. a new contract superseding the first, by which he engages to accept another person as his creditor. Such was in fact the old Roman law, as is shown by the passage already cited from Gaius. By the modern practice the novation is dispensed with, and the debtor becomes bound to the assignee of whom he has notice. But he cannot be bound by any other assignment, though prior in time, of which he knows nothing. He is free if he has fulfilled his obligation to the original creditor without notice of any assignment; he is equally free if he fulfils it to the assignee of whose right he is first informed, not knowing either of any prior assignment by the original creditor or of any subsequent assignment by the new creditor (b). It is enough for the completion of the assignee's title "if notice be given to the person by whom payment of the assigned debt is to be made, whether that person is himself liable or is merely charged with the duty of making the payment" (c) e.g. as an agent entrusted with a particular fund. Notice not given by the assignee may be sufficient, if shown to be such as a reasonable man would act upon (d). All this doc- This does trine of notice has no application to interests in land but, subject to that exception, it applies to rights by trust as well as to those created by contract: the ficial interest being treated for this purpose exactly as if it were table intera debt due from the trustee. In the case of trusts a diffi- ests. culty may arise from a change (a) Contrat de Vente, § 550. (b) See per Willes, J. L. R. 5 C. P. at p. 594. Per Knight Bruce, L. J. Stocks v. Dobson, 4 D. M. G. 11, 17. (c) Per Lord Selborne, C. Addison v. Cox, 8 Ch. 76, 79. (d) Lloyd v. Banks, 3 Ch. 488. (e) Although the exception is fully established there is good authority for thinking it not very reasonable: see Lewin 502. Its (e): not apply created in land; but bene- does to all to interests of trustees: for it may happen effect is that equitable interests other equi |