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ASSIGNMENT OF A CHOSE IN ACTION.
An assignment of a chose in action is a good consideration of a promise." Such assignment vests an equitable interest in the assignee, which courts of law protect. And though the mere assignment does not authorize the assignee to sue the claim in his own name, yet it is regarded as an authority to sue in the name of the original promisee; and the courts will not permit the latter to interfere to the assignee's prejudice.” Where a contract is, in its nature, negotiable, and is expressly so made, (as bills of exchange, and promissory notes payable to order or bearer), the promisor is liable to an indorsee or bearer; the original consideration, if there were one, or the policy of the law, if there none, sustains the promise. But where the contract is not technically negotiable, an express promise to pay the assignee "is necessary, in order to enable him to sue in his own name. The English books mention a new consideration as necessary to entitle the assignee thus to sue;” but in Massachusetts such express promise is sometimes said to be supported by the moral obligation of the promisor, arising from the original debt, &c. and notice of the assignment. A much sounder and more satisfactory basis, for the consideration of such promise, would seem to be the discharge of the original claim. Such discharge is necessarily implied as a condition of the promise, or as an effect of its performance." It seems to have been on this ground that it was formerly held, as has been seen, that forbearance by an assignee,
* 1 Sid. 212; 2 Bl. Rep. 820; 7 D. & R. 14; S. C. 4 B. & C. 528.
* See Bac. Ab. Assignment; 14 Mass. R. 107; 16 Mass. R. 451; 1 Bos. & Pul. 447. 3 Johns. 425; 1 Johns. Cas. 411; 2 Johns Cas. 121,258.
* 1 Saund. 210, note 1.
* See 13 Mass. R. 307; 12 Mass. R. 281; 10 Mass. R. 319; 15 Mass. R. 388: 4 Esp. Rep. 204; 1 Freem. 312.
who had no letter of attorney to sue and release, was not a sufficient consideration for a promise to pay him. By the statutes or local usages of several states in the union, assignees are authorized to sue, in their own name, on assigned bonds, and other contracts. Such also is the law of Scotland. An assignment to the king empowers the assignee to sue in his own name. So of an assignment by the king." Of course, no express promise is necessary to charge the original party. The consideration is the original debt, which the law transfers to the assignee, and which the law also intends that the party promised to pay to him, because such is the party's legal liability. It follows, that forbearance by the assignor, in these cases, is no consideration for a new promise to him; for he has no power to retard the king's suit, &c." The United States may sue, in their own name, on a claim assigned to the government. But such assignment of a claim barred by the statute of limitations, gives it no new validity.” Pay of officers in the army and navy, in Great Britain, is not allowed to be assigned." So of sailor's wages, by a statute passed in the reign of George the second. Of course, a promise to pay the assignee, as well as a promise made in order to procure an assignment, would be void for want of consideration.
ACCEPTING PART IN SATISFACTION OF THE WHOLE.
A promise to take a less sum, in satisfaction of a greater, is without consideration and void; and after taking it and
agreeing to discharge the debtor, the creditor may recover the balance.' But if a sealed acquittance be given, in satisfaction of the whole, on receiving part, or if the debtor pay a less sum, either before the day, or at another place, and the creditor receive it in full satisfaction, the law is different.” So if the creditor receive some specific article, in satisfaction, though it be of much less value than the whole sum due.” If, on the faith of a creditor's agreement to accept a part of his debt, in full satisfaction, a third person is induced to become surety for the debtor, on the ground that he will be discharged on easy terms; or other creditors are induced to relinquish their demands on the debtor—the creditor cannot recover the balance; as it would be a fraud on the surety, or other creditor." In some of these cases, the plaintiff failed to recover the residue of his debt, on the ground that his agreement had induced the debtor to make an assignment of all his property, and a recovery would be a fraud on him." T. M.
ART. II.-PRELIMINARY REPORT OF THE CRIMINAL LAW COMMISSIONERS OF MASSACHUSETTS.
[In several preceding numbers of our journal, we have kept our readers informed of the steps which have been taken towards a codification of the common law of Massachusetts; and the commissioners having now made a preliminary report, which we propose to republish, it seems proper to preface it with a brief account of the proceedings thus far in relation to this important subject. In January, 1836, the legislature of Massachusetts passed a resolve,
authorizing the appointment of five commissioners, “to take into consideration the practicability and expediency of reducing to a written and systematic code, the common law of Massachusetts or any part thereof, and to report thereon to the next legislature, subjoining to their report a plan or plans of the best method, in which such reduction can be accomplished.” In pursuance of this resolve, Messrs. Joseph Story, Theron Metcalf, Simon Greenleaf, Charles E. Forbes and Luther S. Cushing, were appointed commissioners; and, in January, 1837, they made a report to the legislature, in favor of the project of codification. Their report is republished in the seventeenth volume of this journal. It was received with favor by the legislature; and a resolve was passed, authorizing the appointment of five commissioners, to begin the work of codification, by reducing “so much of the common law as relates to crimes and punishments and the incidents thereof, to a written and systematic code.” The commissioners were also directed to specify separately such alterations and amendments, as they might deem expedient, and to report the code to the legislature. Messrs. Charles Jackson, Willard Phillips, John Gray Rogers, Luther S. Cushing and Samuel B. Walcott, were appointed the commissioners. In the succeeding winter, the first named gentleman resigned, and James C. Alvord was appointed on the commission. The proceedings of the commissioners, in the execution of the trust confided to them, are fully set forth in the report which follows. We deem it proper to add, that the subject of the specimen, annexed to the report, is one which requires a greater length and fulness of “exposition,” than almost any other branch of the criminal law, and, in reference to which the decided cases and textbooks afford very copious materials for illustration. No other title, with the exception of larceny, perhaps, occupies so large a portion of our works of criminal jurisprudence, as that of homicide.]
The commissioners applied themselves to the work committed to them, early after their appointment, and have continued to devote themselves to it as assiduously as they have found it practicable to do; and recently have been able to bestow upon it more of their attention, and more effectively, than in the early stages of their labors. They deemed a preliminary examination of the criminal law, generally, to be absolutely essential to the forming of a plan which should meet the views of the legislature. In this part, they found their labors more difficult, and felt the responsibility to be the more pressing, since among the codes and systems of criminal law that have been published, they did not find any one that was satisfactory to them, as a model, or that seemed to them to correspond to the intentions of the legislature, or that was sufficiently well adapted to the condition of our jurisprudence and the habits of our community. The precise form they have adopted, they will explain more particularly in a subsequent part of this report. When they had substantially agreed on the form to be adopted for the code, and proceeded to construct parts of it, many subordinate questions arose, which required much discussion and consideration, and which must be settled as they arose, since otherwise the different members could not work in concert, and the results of their labors would not be of a homogeneous character. Besides the difficulties and the labor of the work itself, the legislature will readily suppose, that the commissioners found other hindrances to their progress in private duties and engagements and circumstances, which it was quite out of their power to avoid. And though it is incomparably more material what code shall be reported, than whether it shall be reported at a little earlier or later period, still the commissioners consider themselves to be pledged to keep the important work entrusted to them constantly in view, and to use their utmost endeavors to bring it to a completion, as rapidly as the great labor and difficulties it involves, and the incidental interruptions and delays, which cannot be avoided, will permit. It will be apparent that the work is of a nature, which does not admit of the completion of any part, until the whole ground has been explored, and, at least, the materials collected and arranged for every other; since each part must be framed in reference, and be adapted to the others. The code will consist of, first, the provisions relating to crimes and punishments generally; secondly, the definition and description of particular crimes and their punishments; thirdly, procedure; fourthly, pleadings, and fifthly, evidence. The part, naturally first in order in the execution