And the declaration contained counts for money had and received to the use of the plaintiff in his said capacity, paid, laid out and expended, lent and advanced, and insimulcomputtassent.
Plea — General issue.
At the trial the plaintiff offered to prove the original indebtment of the defendant to Stillman Clarke, the assignment of the claim in question by said Stillman to the plaintiff; a notice of said assignment to the defendant, and a promise on the part of the defendant, after such notice, to pay the debt or the sum sued for to plaintiff as assignee; and further offered to prove the making of promises by defendant to the plaintiff to pay said debt, both before the death of Stillman Clarke and since. *Page 148 This proof was ruled out by the court, and the plaintiff having submitted to judgment, moved for a new trial upon exceptions to the ruling of the court. The law for many purposes recognizes the equitable interest of the assignee of a chose in action, not assignable at law. Thus it authorizes the assignee to sue in the name of the assignor, and to control the suit, exclusive of any interference by the assignor, and to receive payment of and discharge the judgment, which may be recovered in such suit. So the assignee is the proper party to receive payment of the debt, and to give a valid discharge therefrom to the debtor. And we think, where there is a debt and the debt has been assigned, and the debtor promises the assignee as such, to pay the debt, that the assignee may maintain an action in his own *Page 149 name, upon such express promises. The equitable interest of the assignee is a sufficient consideration for the express promise to pay. And we do not think it makes any difference, whether the chose in action assigned, be a written obligation or a debt due on an express or implied promise by parol, as for goods sold or services performed, or other meritorious cause of action. And we think an assignee to whom the debt has been assigned by the creditor for the benefit of his creditors, is as well entitled in his own name to maintain a suit upon an express promise of the debtor to pay him, as the assignee to whom the debt has been assigned for a valuable consideration for the benefit of the assignee.
The case of Carrier v. Hodgson, 3 New Hamp. 82, was the case of a written obligation to deliver neat stock. The obligation was assigned to the plaintiff, and the defendant promised to deliver the stock to him. And the court held, he might maintain an action in his own name on such express promise.
Barger et ux. v. Collins, 7. Harris Johns. 213, was the case of a partnership account due the firm. One of the partners assigned his interest in the debt to the other partner, and the amount of the debt was afterwards liquidated between such other partner and the debtor. The court held, that an express promise by the debtor to pay the plaintiff to whom his co-partner's interest in the debt had been assigned, would authorize the plaintiff to sue in his own name on such express promise. In that case the court also held that the acts of the parties were proper evidence of such new promise. See, also, Crocker v. Whitney, 10 Massachusetts, 316; Mowry v. Todd, 12 Mass. 281; Doty v.Wilson, 14 Johns. 378; *Page 150 Hawes v. Saunders, Cowper, 290; Fenner v. Meares, 2 W. Black, 1269.
Mr. Justice Story states it as a general rule, that a chose in action cannot be assigned unless the debtor assent to the transfer; "but," he continues, "if he does assent, then the right of the assignee is complete at law, so that he may maintain a direct action against the debtor upon the implied promise to pay him the same, which results from such assent." 2 Story's E Jur. § 1039. And this rule was recognized by the Supreme Court of the United States in Tiernan v. Jackson, 5 Peters, 597, 598. See also Israel v. Douglas, 1 H. Black, 239; Williams v.Everett, 14 East, 582.
We think, therefore, that the Court of Common Pleas erred in rejecting the offers of the plaintiff to prove the matters and things stated in the exceptions.
New trial granted.