Assignment of debt by of all the parties. against the assignor or original creditor, and a new liability created for the debt in favour of the assignee. Such an asagreement signment frequently takes place for the purpose of the assignor paying a debt due from himself to the assignee, which case has been put thus: "Suppose A. owes B. £100, and B. owes C. £100, and the three meet, and it is agreed between them that A. shall pay C. the £100; B.'s debt is extinguished, and C. may recover that sum against A. (a)." Where a similar relation existed between A., B., and C., and at A.'s request C. charged B.'s debt to A., in an account sent in to him, it was held that this was not sufficient to show that C. had discharged B., or that A. had rendered himself liable to C. for B.'s debt (b). In a similar relation between the parties, it was agreed between A. and B., that A., instead of paying B., should pay B.'s debt to C.; it was held that C., being no party to this agreement, acquired no right of action against A. (c). So, where B. sued A., and A. pleaded that, at request of B., he agreed with C. to pay him instead of B., the plea was held bad as not showing that B.'s debt to C. was discharged (d). Under such assignment as is above described, whereby the debtor undertakes to become liable to the assignee instead of the assignor, the assignee can sue the debtor only as, and when, the assignor might have sued him; thus, where the creditor of the defendant assigned his debt to the plaintiff, and the defendant agreed to the assignment and undertook to pay it to the plaintiff, but it appeared that the debt was one payable by instalments upon the completion of certain building works by the creditor, who had not yet entitled himself to recover it, it was held that the plaintiff was not entitled to recover (e). So, if the assignment of the debt is made conditionally, or if the debtor agrees to the assignment of the debt only conditionally, and contracts with the assignee to pay it only upon certain conditions, the assignee is entitled accordingly, and can recover against the debtor only upon the conditions being satisfied, and when the debt has thereby become absolute (a). tion of the The liability of the debtor to the assignee at law, being Considerafounded upon a new contract, and not on mere notice of the assignment as in equity, there must be a sufficient consideration to support the promise of the debtor to pay the assignee; for unless made upon some valid consideration such promise would not be binding (b). If, as in the case above supposed, A. owes B. £100, and B. owes C. £100, and it is agreed between them that A. shall pay C. the £100, and that B's. debt shall be discharged, the discharge of B. by C. is the consideration for the promise by A. to pay C.; so, forbearance by the assignee to sue the assignor for a debt, or giving additional time or credit to the assignor would constitute a sufficient consideration to support the agreement of the parties (c). ment of money re ceived. Where the debtor is indebted to the assignor for money Assignreceived to his use, the assent of the debtor to the assignment of the whole, or a certain amount of the debt, expressed to the assignee, operates as an effectual appropriation of the money to the use of the assignee, and entitles the assignee to recover such money from the debtor as received for his use (d). But where the debt assigned is not a claim for money received for the use of the assignor, or is an undefined part of a claim for money so received, the debtor becomes liable to the assignee only according to the special terms of the agreement in which he promises to pay him the debt (e). An order by a creditor upon his debtor requiring him to Order upon pay the whole or a portion of the debt to another person, (a) Wilson v. Coupland, 5 B. & Ald. 228; Hudson v. Bilton, 6 E. & B. 565; 26 L. J. Q. B. 27; and see Sewell v. Raby, 6 M. & W. 22; Hamilton v. Spottiswoode, 4 Ex. 200. (b) Liversidge v. Broadbent, 4 H. & N. 603; 28 L. J. Ex. 332. (c) Per Buller, J., Tatlock v. Harris, 3 T. R. 174, 180; ante, p. 608; Wharton v. Walker, 4 B. & C. 163, 166; Hodgson v. Anderson, 3 B. & C. 842, 856; Hutchinson v. Heyworth, 9 A. & E. 375, 403; and see Hamilton (d) See ante, p. 47; Israel v. (e) Per Littledale, J., Wharton v. Walker, 4 B. & C. 163, 166; and see Fairlie v. Denton, 8 B. & C. 395. debtor to pay to an- debtor to pay to another. Order upon given by the creditor to that person for a valid consideration, would alone amount in equity to an assignment of the debt, and upon presentment or notice of it to the debtor would become binding upon him (a). But in law, if such order is presented, the debtor, though justified in paying according to the order, is not bound to do so; and until he enters into a valid agreement with the assignee to pay him, he remains liable to the original creditor only, who may revoke the order before it has been acted upon (b). After the debtor has made a valid engagement with the assignee to pay him according to the order, the creditor can no longer revoke the order (c). An order made by the creditor on the debtor to pay another person, but not communicated to the latter, although it may justify the debtor in acting upon it, may be revoked, even in equity, at any time before it is executed, or some engagement is entered into with the third person to execute it (d). Assignment of liability. An order in writing given by a creditor upon his debtor in favour of a third party may amount to a bill of exchange, and is then not admissible in evidence without a stamp (e). The promise of the debtor to pay the debt to the assignee instead of the assignor, where the assignment is made in discharge of a debt due from the assignor to the assignee, does not for that reason become a promise to pay the debt of another within the Statute of Frauds (ƒ). Similarly, the liability for a debt, though not assignable by the act of the debtor alone, may be effectively transferred by a binding agreement of all the parties, to the effect that the original debtor should be discharged and the new debtor (a) See ante, p. 603. (b) Williams v. Everett, 14 East, 582; Wharton v. Walker, 4 B. & C. 163; Wedlake v. Hurley, 1 C. & J. 83; Brind v. Hampshire, 1 M. & W. 365; Malcolm v. Scott, 5 Ex. 601; see S. C. 3 Mac. & G. 29; Moore v. Bushell, 27 L. J. Ex. 3; Liversidge v. Broadbent, 4 H. & N. 603; 28 L. J. Ex. 332. (c) Hodgson v. Anderson, 3 B. & C. 842; Hutchinson v. Heyworth, 9 A. & E. 375; Walker v. Rostron, 9 M. & W. 411; Hamilton v. Spottiswoode, 4 Ex. 200. (d) Scott v. Porcher, 3 Mer. 652; Morrell v. Wootten, 16 Beav. 197. (e) Smith v. Nightingale, 2 Stark. 375; Firbank v. Bell, 1 B. & Ald. 36; Jones v. Simpson, 2 B. & C. 318; Pott v. Lomas, 6 H. & N. 529 ; 30 L. J. Ex. 210; ante, p. 603. (f) Hodgson v. Anderson, 3 B. & C. 842; ante, p. 128. accepted in his place. Thus, in the case above supposed of A. being indebted to B. and B. to C., by agreement of all the parties the debt of B. to C. may be discharged and A. may be accepted by C. as debtor in his place (a). A transfer of liability frequently occurs upon a change in a firm of partners, when the debts of the old firm may, by the agree ment of all the three parties,-the creditor, the old firm, and the new firm,-be effectually transferred to the new firm, so as to render the new firm liable to the creditor in substitution of the old firm, and to discharge the latter (b). And even when the only change in the firm is the retirement of one of the partners, the transfer may be effected, by the creditor accepting the liability of the continuing partners in discharge of the original joint liability of all (c). in law. There are some contracts which are exceptional to the Contracts assignable general rule of the common law, and are assignable, so that the assignee is entitled to sue upon them in his own name; of which the following are instances. The contracts arising on bills of exchange are an excep- Bills of extion to the general rule that a contract is not assignable, change. founded on the custom of merchants (d). The custom of merchants or the law merchant is judicially ascertained and recognized without proof; and evidence of particular usage of merchants is not admissible to the contrary (e). By the law merchant a bill of exchange made payable to order is assignable by indorsement, so as to vest the right of payment in the indorsee and entitle him to sue upon it; a bill of exchange made payable to bearer, or a bill of exchange made payable to order, and indorsed in blank, is assignable (a) Per Buller, J., Tatlock v. Harris, 3 T. R. 174, 180; and see Cuxon v. Chadley, 3 B. & C. 591; Kemp v. Watt, 15 M. & W. 672; Cochrane v. Green, 9 C. B. N. S. 448; 30 L. J. C. P. 97. (b) Hart v. Alexander, 2 M. & W. 484; and see Rolfe v. Flower, L. Rep. 1 P. C. 27. (c) Thompson v. Percival, 5 B. & Ad. 925; Kirwan v. Kirwan, 2 C. & M. 617; Lyth v. Ault, 7 Ex. 669; 21 L. J. Ex. 217, overruling Lodge v. (d) See Hansard v. Robinson, 7 B. (e) Edie v. East India Co., 2 Burr. 1216; Barnett v. Brandao, 6 M. & G. 630, 665; Brandao v. Barnett, 3 C. B. 519, 530, 535. Promissory notes. Title of indorsee not equities. by mere delivery, and conveys the right to the holder for the time being; unless a bill of exchange is made payable to order or to bearer, it is not assignable (a). At common law promissory notes were considered merely as evidence of a debt; the promisce could not sue upon the promise therein contained without proof of a consideration for the promise; and such instruments were not assignable within the custom of merchants (b). By the statute 4 Anne, c. 9, it was enacted that such notes "shall be assignable or indorsable over in the same manner as inland bills of exchange are or may be according to the custom of merchants." The effect of this statute is to place bills of exchange and promissory notes on precisely the same footing with respect to their negotiability (c). The assignment of a negotiable instrument by the custom affected by of merchants is more effectual than the mere assignment of a chose in action in equity, in that, if taken bonâ fide and for value, and before it is due, it gives the holder a good title, notwithstanding any defects in the title of previous holders of which he has no notice at the time of taking it; but if a person takes a negotiable instrument without value, or when overdue, or with notice, he takes it subject to all the equitable rights of previous parties to the instrument, which have arisen respecting it (d). Where a person took an instrument, which was negotiable by indorsement only, by mere delivery without indorsement, it was held that he was in the position of a merely equitable assignee, and subject to all the equities of the maker of the instrument against the assignor, and that his title could not be made good by a subsequent formal indorsement, after notice of such equities; so that, the instrument having been obtained from the maker by fraud, he could not recover upon it (e). Bills of Jading. A bill of lading is the document signed by the master |