rule. CONTRACTS, being things in action, were not assignable at common Common law law without the consent of both contracting parties, but this rule was subject to two exceptions-(1) that the Crown could assign a contract, and (2) that the holder of a bill of exchange could assign it by law merchant (a). But the general rule of equity was that a contract could be Rule in assigned, so as to give the assignee a right in equity to sue in his equity. own name thereon (b). A yearly tenancy is assignable, if not at common law, at all Yearly tenancy. events under the Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 6 (c). By 32 Hen. 8, c. 34, contracts between landlord and tenant con- Statutory right to cerning the land demised were annexed to the reversionary estate assign. therein, so that the assignee of both landlord and tenant might both sue and be sued upon them (d); bills of exchange and promissory notes are assignable under the Bills of Exchange Act, 1882, 45 & 46 Vict. c. 61 (e); the Policies of Assurance Act, 1867, 30 & 31 Vict. c. 144, and the Policies of Marine Assurance Act, 1868, 31 & 32 Vict. c. 86, give the assignees of life and sea insurance policies the right to sue thereon in their own names; the Bankruptcy Act, 1883, 46 & 47 Vict. c. 52, s. 50, sub-s. 5, repeating former enactments, provides that the choses in action of a bankrupt are to be deemed to have been duly assigned to his (a) See per Parke, B., Gaters v. Madeley (1840), 6 M. & W. 840, and per Blackburn, J., Crouch v. Crédit Foncier (1873), L. R., 8 Q. B. 374. (b) Watson's Compendium of Equity, tit.Contracts," Ch. V.; Row v. Dawson (1749), 1 Ves. 331, and notes to Ryall v. Bowles, 2 Wh. & T. at p. 765. (c) Allcock v. Moorhouse (1882), 9 Q. B. D. 366, C. A. (d) And see Conveyancing Act, 1881, ss. 10-12. (e) Ante, p. 452; and see Crouch v. Crédit Foncier, ubi sup., per Blackburn, J. CH.XXVI.s.1. trustee in bankruptcy; and the Judicature Act, 1873, 36 & 37 Assignment. Vict. c. 66, by sect. 25, sub-sect. 6, enacts as follows:Assignment of debts. Judicature Act, 1873. Absolute assignment. Brice v. Bannister. Direction of landlord to pay rent to creditor. Knill v. Prowse. Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be, and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor; provided always, that if the debtor, trustee, or other person liable in respect of such debt or chose in action shall have had notice that such assignment is disputed by the assignor or anyone claiming under him, or of any other opposing or conflicting claims to such debt or chose in action, he shall be entitled, if he think fit, to call upon the several persons making claim thereto to interplead concerning the same, or he may, if he think fit, pay the same into the High Court of Justice, under and in conformity with the provisions of the Acts for the relief of trustees. This sub-section gives no new right of action which did not exist before (f); but appears to invalidate a parol assignment, which was valid in equity before the Act (g). It has been said, however, that there are many cases in which there may be an equitable assignment independent of the sub-section (h). The words "absolute assignment" cover an assignment of moneys not yet due (i), or of debts to a creditor, the surplus to be paid to the assignor (k), but have been said not to cover the assignment of a mortgage by the mortgagee to his trustees with a proviso for re-assignment in a certain event (1). Where debts were assigned by mortgage in consideration of advances made and to be made by the assignees, and the mortgage deed contained a proviso for redemption and re-conveyance on repayment of all moneys advanced, this was held to be an absolute assignment (m). Where a landlord borrowed money of the plaintiff and gave him a letter addressed to a tenant of the landlord, of which letter the tenant had notice, directing him to pay the rent to the plaintiff until the order should be countermanded by the plaintiff, it was held that this was an absolute assignment within the sub-section, and that the plaintiff could sue the tenant for the rent (n). (f) Schröder v. Central Bank of London (1876), 24 W. R. 710. (g) See Re Richardson (1885), 30 Ch. D. at p. 397, per Kay, J. (h) See Annual Practice, p. 37; Pollock on Contracts, 6th ed., at p. 206. (i) Brice v. Bannister (1878), 3 Q. B. D. 569, C. A.; diss. Brett, L. J. (k) Burlinson v. Hall (1884), 12 Q. B. D. 347. (1) National Provincial Bank of Eng land v. Harle (1881), 6 Q. B. D. 626. (m) Tancred v. Delagoa Bay, &c., Co. (1889), 58 L. J., Q. B. 459, following Harle's case, supra, and disapproving Burlinson v. Hall, supra. (n) Knill v. Prowse (1884), 33 W. R. 163. of Contract. Effect of of notice. Brice v. Bannister. The effect of disregarding the notice of assignment, by payment CH.XXVI.s.1. of the original creditor notwithstanding such notice, will be that Assignment the debtor will have to pay the assignee as well. This appears from the very hard case of Brice v. Bannister (o). There a ship- disregard builder agreed to build a ship for the defendant, before completion of which the shipbuilder, being in debt to the plaintiff, by order in writing directed the defendant to pay the plaintiff 100l. out of moneys due or to become due from the defendant to him, and the plaintiff gave notice in writing of this order to the defendant, who however disregarded the notice, and afterwards paid the shipbuilder more than 1007., being the balance of the contract price, of which parts had been paid in instalments. It was held that there had been a valid assignment of the debt, and that the fact that the defendant had already paid the shipbuilder all the contract price was no answer to the assignee's claim. consent. Waggon Co. v. Lea. Upon the exact extent of the right of one party to assign a con- Extent of right to tract without the consent of the other there is no direct authority. assign Contracts for the payment of money, and contracts for the sale or without occupation of land, can beyond doubt be assigned by either party merely on notice to the other. As to other contracts, there is an admitted rule (which has been twice applied to contracts between author and publisher (p)), that they cannot be assigned if the individual skill or other personal qualifications of the assignor were relied on by the party contracting with him (q). In British Waggon British Co. v. Lea (r) the rule is stated to be "that where a person contracts with another to do work or perform service, and it can be inferred that the person employed has been selected with reference to his individual skill, competency or other personal qualification, the inability or unwillingness of the party so employed to execute the work or perform the service is a sufficient answer to any demand by a stranger to the original contract of the performance of it by the other party, and entitles the latter to treat the contract as at an end, notwithstanding that the party tendered to take the place of the contracting party may be equally well qualified to do the service." In that case, however, the Court not only held the particular contract before them-for repair of waggons-to be assignable, but intimated an opinion in favour of extending rather than narrowing the assignability of contracts. (0) Brice v. Bannister (1878), supra. (p) Stevens v. Benning (1855), 6 De G. M. & G. 223, App.; Hole v. Bradbury (1879), 12 Ch. D. 886. (q) Robson v. Drummond (1831), 2 B. & Ad. 303; Humble v. Hunter (1848), (r) British Waggon Co. v. Lea (1880), CH. XXVI. s. 2. Novation. Writing not necessary for novation. Life policies. SECT. 2.-Novation. There is no doubt, however, that with the consent of both contracting parties all contracts of any kind may be transferred, and the term "novation" has been introduced from the Roman Law to describe this species of transfer. Novation is where the two contracting parties agree that a third shall stand in the relation of either of them to the other. Most, if not all, the instances of it in English Law have arisen, either out of the amalgamation of insurance companies, or of changes in partnership firms, the questions being whether as a matter of fact the assured or the party contracting with a firm accepted the new company or the new firm as their debtor in the place of the old company or the old firm (s). This acceptance, which is the essence of novation, need not be evidenced by writing at common law, but may be inferred from acts and conduct. Ordinarily, it is not to be inferred from conduct without some distinct request (t). Where a firm consisted of two partners, and one died, the acceptance by a customer from the surviving partner in a bank, of a fresh deposit note for a balance of a debt due from a firm, has been held not sufficient evidence of novation to discharge the estate of the deceased partner (u). In regard to life insurance, however, it is enacted by s. 7 of the Life Assurance Companies Act, 1872, 35 & 36 Vict. c. 41, that where a life insurance company transfers its business to another company, no policyholder shall be deemed to have abandoned his claim against the transferor company, or to have accepted in lieu thereof the liability of the transferee company, "unless such abandonment and acceptance have been signified by some writing signed by him or by his agent lawfully authorised." Devolution on executors. SECT. 3.-Devolution. Under devolution or assignment by operation of law to executors or administrators, a larger number of contracts pass to a party not originally contracting than under assignment with notice without consent or novation with consent during the lives of the contracting parties. No notice or consent is required; the executors or adminis Devolution. trators of a party are bound as a general rule, so far as his assets will CH. XXV. s.3. extend, to perform all his contracts though not named therein (x), and they can also sue the party with whom he contracted. They are personally liable on the contracts of a lessee to repair, but not on his contract to pay rent (y). A tenancy from year to year devolves upon them, and they must give or receive notice to quit at the end of the current year of the tenancy (after the expiration of which notice, and not until then, they will be freed from the obligations of the tenant), or else they will be considered to be continuing tenants (z). Personal contracts, however, do not devolve upon executors. Of No devolution of personal this nature are-a contract to marry, a contract of service, and a contracts. contract for the exercise of personal skill, as to write a book, or paint a picture (a). The devolution of contracts in case of the bankruptcy of either Devolution on bankruptcy. of the parties by s. 50, sub-s. 5, of the Bankruptcy Act, 1883, to which we have already referred (ante, p. 213 et seq.), is subject to further elaborate provisions under s. 55 of the same Act for the "disclaimer" of onerous contracts in the manner therein mentioned. (x) Williams v. Burrell (1845), 1 C. B. 402; Wills v. Murray (1850), 4 Ex. 843, at p. 865; and see Ch. IX. s. 10. (y) See Woodfall, L. & T., Ch. VII. s. 10, and ante, p. 314. (z) See Doe v. Wood (1845), 14 M. & W. 682. (a) See Farrow v. Wilson (1869), L. R., 4 C. P. 744, and ante, p. 525, where it was held that a contract to serve as |