quent person from being deceived as to the owner; and to hinder the assignor from fraudulently assigning his interest over again to another person.

And for that purpose one of the absolutely indispensable duties incumbent upon him is that of acquainting the individual, whoever he may be, from whom "payment" is to be demanded, with the fact of the change of ownership of the right to recover the money or enforce the duty obligatory upon him.

The assignee is generally entitled to all the remedies of the assignor. If there be collateral securities, the assignee will be entitled to the possession and benefit of them, unless it be otherwise arranged between the parties. And the assignee should see to it that everything is done whereby the assignor's rights and remedies are fully vested in him, and this may include the right to use the assignor's name as a party to an action for recovery of the subject-matter of the assignment.

Book VII.

PRACTICE.

CHAPTER I.

PARTIES.

FORMERLY if the interest assigned were an equitable chose in action, the assignee could always sue for its recovery in his own name in a Court of Chancery, and by filing a bill against the trustee could compel him to convey the legal estate to him (the assignee) without making the cestui que trust, who sold to him, a party to the suit (a).

So, if the assignment of a personal contract be defective in form merely, any promise by the person liable upon the contract to pay the demand or satisfy the claim in consideration that the assignee will give him time for payment, or forbear for a particular period from suing him, will enable the assignee to maintain an action in his own name upon such new contract or promise (b).

(a) Goodson v. Ellison [1826], 3 Russ. 583. Cp. Jones v. Farrell [1857], 1 De G. & J. 208. See also Blake v. Jones, 3 Anstr. 651; Cator v. Croydon Canal, 4 Y. & C. Ex. 405, 419; 8 Jur. 277, L. C.; Padwick v. Platt, 11 Beav. 503; Fulham v. McCarthy, 1 H. L. Ca. 703; Bagshaw v. Eastern Union Rail. Co., 7 Hare, 114; 13 Jur. 602; 14 Jur. 491; Pigott v.

Stewart [1875], W. N. 69.

(b) Addison, Contracts [1892], 208; Morton v. Burn, 7 Ađ. & E. 19; Reynolds v. Prosser, Hardr. 71; Forth v. Stanton, 1 Saund. 210, n. 1, n. (a); Jeff's v. Day, L. R. 1 Q. B. 372; Tatlock v. Harris, 3 T. R. 174, 180; Fairlie v. Denton [1828], 8 B. & Cr. 395; Kemp v. Watt [1886], 15 M. & W. 672.

Or, if the debtor were a party to, or in any other definite manner assented to, the transfer of the debt, the assignee could then, in his own name, sue the debtor upon an express or implied promise to pay (c).

And, of course, the bonâ fide holder for value of a negotiable instrument, could always sue for the sum in his own name.

Similarly, the various statutory enactments authorizing the transfer of certain choses in action have coupled therewith the right for the transferee to sue for the same in his own name (d).

But apart from the foregoing it was generally necessary and indispensable for the assignee to sue in the assignor's name, or, at any rate to make the assignor a party to the proceedings on one side or the other (e).

Even where the assignor had become bankrupt the action was obliged to be brought in his name, and not in that of the bankrupt's assignee in bankruptcy, for the latter could only sue on contracts in which the bankrupt was beneficially interested (f); and if after a charter-party the owner assigned and then became bankrupt, he still should sue (g).

If the assignor were dead, his executor or administrator had to sue (h).

The principle upon which this practice rested was that the Court of Chancery aimed at doing complete justice by deciding upon and settling the rights of all persons interested in the subject of the suit, so as to

(c) Israel v. Douglas, 1 H. Bl. 239; Baron v. Husband, 4 B. & Ad. 611; 1 Wh. & T. Eq. 130.

(d) 4 Anne, c. 16, s. 20; 11 Geo. II. c. 19, s. 23; Page v. Eamer, 1 B. & P. 381, n. (a); Phillips v. Price, 3 M. & Sel. 180; 51 Geo. III. c. 64, s. 4; Glyn v. Baker, 13 East, 509; 12 R. R. 414. But see Williamson v. Thomson, 16 Ves. 443; O'Callaghan v. Thomond, 3 Taunt. 82; 3 & 4 Anne, c. 9, 1; 10 Geo. IV. c. 56, s. 21.

8.

(e) Winch v. Keeley, 1 T. R. 619; De Pothonier v. De Mattos, El. B. & E. 467; Master v. Buller, 4 T. R. 340.

(f) Winch v. Keeley, supra; Chalmers v. Page, 3 B. & Ald. 697.

(g) Splidt v. Bowles, 10 East, 279; Morrison v. Parsons, 2 Taunt. 407; Chitty, Pleading [1844], 17.

(h) Brandt v. Heatig, 2 Moore, C. P. 184.

make the performance of the order of the Court perfectly safe to those who were compelled to obey it, and to prevent future litigation (i). For this purpose, it was necessary that all persons materially interested in the subject should generally be made parties to the suit either as plaintiffs or defendants, however numerous they might be (k). And consequently any person coming to the Court for relief should bring before the Court all such persons as were necessary to enable it to do complete justice; and should so far bind the rights of all persons interested in the subject as to render the performance of the judgment which he claims safe to the party called upon to perform it, by preventing his being sued or molested again respecting the same matter, and should for this purpose bring before the Court, either as co-plaintiffs with himself, or as defendants, or by serving them with notice of the judgment (1), all persons so circumstanced that, unless their rights were bound by the judgment of the Court, they might cause future molestation or inconvenience to the party against whom the relief was sought.

In general, where a plaintiff had only an equitable right in the thing demanded, the person having the legal right to demand it should be a party to the action; for if he were not, his legal right would not be bound by the judgment (m), and he might, notwithstanding the success of the plaintiff, have it in his power to annoy the defendant by further proceedings (n).

So, a trustee or other person in whom the legal estate is vested, must be made a party in all suits

(i) Richardson v. Hastings, 7 Beav. 323, 326; Hare v. L. & N. W. Rail. Co., 1 J. & H. 252; Daniel's Ch. Prac. [1882], 194.

(k) Mitford, Pleading, 163, 164; Partington v. Bailey, 6 L. J. N. S. Ch. 179; Cator v. Croydon Canal

Co., supra.

(1) Daniel's Ch. Prac. [1882], 197, 275-282.

(m) Mitford, Pleading, 179.

(n) Daniel, Ch. Prac. [1882],

202.

respecting the trust property, whether the trust be express or implied (o).

But it seems that a specific legatee, suing trustees for his legacy, need not make the executor a party, if he alleges that he has his assent (p). And an administratrix of an intestate, although she had assigned his interest in a partnership concern to his next of kin, was held to be the proper person to file a bill against the surviving partners to have the partnership accounts taken (9).

But it was not necessary that a person who had a legal interest should in every case be a party, where the whole equitable estate was assigned over (r). But this was by far rather the exception than the rule which stands (s). And so it was held that an assignor of a judgment was a necessary party to a suit by the assignee respecting it, although a power of attorney to sue were contained in the assignment (t); and so, formerly, it seems that the persons by whom shares were assigned to the plaintiff in a suit against directors alleging fraud, were obliged to have been made parties (u).

And again, A. effected two policies on his life for the purpose, as he expressly informed the company, of enabling him to give B. a security for a debt which exceeded the amount of the policies, and he deposited them with B., at the same time asking him by letter to instruct his, B.'s, solicitor "to prepare the necessary assignment," and B., however, never took any actual assignment. A. died insolvent, having made a will

(0) 9 Mod. 80; Wood v. Williams, 4 Mad. 186; 20 R. R. 291; Hichens v. Kelly, 2 Sm. & G. 264; Scott v. Nicoll, 3 Russ. 476; Dan. Ch. Prac. 203. (p) Smith V. Brooksbank, 7 Sim. 18, 21. But see Moor v. Blagrave, 1 Ch. Ca. 277.

(a) Clegg v. Fishwick, 1 Mac. & G. 294, 299; 12 Jur. 993.