ASSIGNMENT OF RIGHTS AT COMMON LAW. The benefits or rights under a contract may be assigned. But at Common Law, ex cept in the case of negotiable instruments, the rights under a contract cannot be assigned so as to enable the assignee to sue upon it in his own name, the action must be brought in the name of the assignor,• or his representatives. By a novation, or substituted agree ment, the parties might discharge the old agreement and substitute a new one. Thus, if A owes B a certain amount and B owes C the same amount, an agreement between the three that A shall pay C instead of B, and C shall accept A's payment instead of B's will be such a new agreement as will substitute C for B, the latter being discharged. The mutual promises constitute the consideration for the new agreement, hence there must be a definite agreement between the parties and the assignee. (Forter v. Pain, 63 Ia. 85; Am. Lumber Co. v. Mulcrane, 55 Mich. 622; Murphy v. Hanrahan, 50 Wis. 485.) IN EOUITY. In equity the rights tinder a contract may be assigned and the assignee maintain a suit upon it in his own name. The only exception to this is in the case of a contract for personal services, the right to which may not be assigned. The assignment to be supported in equity, and a suit maintained upon it, must conform to certain conditions. These are: i. A consideration must have been given by the assignee. 2. The person obligated under the contract is not liable until he has notice of the assignment, otherwise the assignment is valid from the moment made. 3. The assignee takes subject to all defenses that might have been set up against the as signor. (Anson on Cont. p. 222.) As regards notice, it is held that a payment by the debtor to his creditor without notice of the assignment of the claim is a good discharge. And that as between successive purchasers of a chose in action he who first gives notice to the debtor will be entitled to payment. (Judson v. Corcoran, 17 How. 615; Murdock v. Dick son, 21 Mo. 138.) But some cases hold that purchasers take title according to the priority of time, regardless of notice to the debtor. (Thayer v. Daniels, r i 3ll ass. 129; Summers v. Huston, 48 Ind. 230.) The rule as to the assignee taking subject to all de fenses good against the assignor may be varied by the express agreement of the parties, providing that an assignment shall be free from equities.
BY STATUTE. Choses in action, or rights arising from contracts are made assignable by statute in the several States, but the statutes are not uniform in their terms or construc tion. The statutes usually require the suit to be brought in the name of the real party in interest, and this authorizes the assignee to bring the action in his own name.
The rules applicable to assignments in equity apply largely to the cases of statutory assignments. Every right of property which was assignable in equity and survives to the personal representatives of the owner is assignable under the statutes. (Hoyt v. Thompson, 5 N. Y. 32o; Grand v. Ludlow, 8 0. St. 37.) The right and duty to render personal service cannot be assigned. (Chapin v. Longworth, 31 Ohio St. 421; Palo Pinta Co. v. Gano, 6o Tex. 249.) The right of action for a tort is not generally assignable, except such actions for torts as survive to the personal representatives. (Stew art v. Railway Co. 62 Tex. 246.) Actions for deceit, breach of promise of marriage, negligent injury to the person, malicious prosecution and the like are not as signable. (Dayton v. Fargo, 45 Mich. 153; Ward v. Blackwood, 41 Ark. 295.) The creditor can assign his claim without the assent of his debtor, but if the debtor has the right to pay the claim as a whole, a part of it cannot be assigned with out his assent. (Madeville v. Welch, 5 Wheat. 277.) No particular form of assignment is required, and if a parol assignment is good in equity it is good under the statute. The assignment may be conditional or for se curity. Notice to the debtor is not necessary as be tween the parties to the assignment, but should be given by the assignee if he wishes to protect himself from subsequent assignments by the assignor, or from payment being made to him by the debtor. (Farley's Appeal, 76 Pa. St. 42.) The assignee takes subject to equities in favor of the debtor at the time of the assignment. (Spinning v. Sullivan, 48 Mich. 5; Klceman v. Frisbie, 63 III. 482.)