Sec 841

As has been elsewhere shown,7 the question whether the debtor's assent is sufficient to destroy the right of the original creditor to revoke the deposit. Weston V. Barker, 12 Johns. 281; Neilson V. Blight, 1 Johns. Cas. 205; and other cases cited Story on Cont. sec 483. But at common law, aside from statute, the original contract can only be destroyed by mutual consent.

1 Supra, sec 836 et seq.; Israel V. Douglass, 1 H. Bl. 242; Crocker V. Whitney, 10 Mass. 316.

2 Tibbits V. George, 5 Ad. & El. 115; De Bernales V. Fuller, 14 East, 590 n; Warren V. Wheeler, 21 Me. 484; Mowry V. Todd, 12 Mass. 281; Story on Cont. sec 471.

3 Doty V. Wilson, 14 John. 378; Bar-ger V. Collins, 7 Har. & J. 213.

4 Saylor V. Bushong, 12 Weekly Notes, 81; see Tibbits V. George, 5 Ad. & El. 115; Carrier V. Hodgdon, 3 N. H. 32; Edson V. Fuller, 22 N. H. 191; Crocker V. Whitney, 10 Mass. 316; Doty V. Wilson, 14 Johns. 378; Commercial Bank V. Hughes, 17 Wend. 94.

5 Supra, sec 787.

6 Infra, sec 852; Cromelien V. Mauger, 17 Penn. St. 169; De Barry V. Withers, 44 Penn. St. 356.

7 Wh. Con. of L. sec 735; supra, sec 796.

an assignment is formally valid is to be decided by the lex fori. It is a mere matter of process. If allowed by the lex fori, the assignee may sue in his own name, although forbidden by the foreign law to which the obligation is subject.1 But if an assignee cannot, in such cases, sue by the lex fori, the fact that he could have sued under the lex loci contractus, will not relieve him from his disability.2 - If the mode of assignment pointed out by a statute be not pursued, only an equitable interest vests in the assignee, and the suit must be by the assignor to his use.3 - Mere endorsement of a certificate of deposit in a savings fund will not entitle the endorsee to bring suit in his own name.4 - Whether paper is so far negotiable as to sustain a suit by the holder has been already considered.5 sec 842. An assignee of non-negotiable assets takes only what the assignor has to give; and hence, whatever equities the debtor might assert against the assignor at the time of the assignment he can assert against the assignee.6 "That the purchasers of non-negotiable demands, like the certificate here (a certificate of Assignment subject to equities between assignor and debtor indebtedness by a duly constituted public officer) from others than the original owner of them, can take only such rights as he has parted with, except when by his acts he is estopped from asserting his original claim, is established by all the authorities."1 "Where there is a chose in action, whether it is a debt, or an obligation, or a trust fund, and it is assigned, the person who holds the debt or obligation, or has undertaken to hold the trust fund, has, as against the assignee, exactly the same equities that he would have as against the assignor."2 After assignment debts due by the assignee to the defendant may be set off.3 The assignee of a debt is, therefore, put in the same position as is an undisclosed principal suing on a debt contracted by his agent. He is entitled to recover, but whatever he recovers is subject to any set-off or counter-claim due from the debtor to the creditor in the original transaction. The assignee takes the debt burdened with such set-offs or counter-claims.4 If, also, the claim is open to avoidance, when held by the assignor, the debtor can avoid it to the same extent when it is in the hands of the assignee.5 When, however, a claim is bona fide assigned for a sufficient consideration, and notice of this is given to the debtor, then any payment by him to the assignor will be regarded as collusive and inoperative.1

Lex fori determines whether assignee can sue in his own name.

1 Foss V. Nutting, 14 Gray, 484.

2 Supra, sec 526; Fisk V. Brackett, 32 Vt. 798; Usher V. D'Wolf, 13 Mass. 290; McRae V. Mattoon, 10 Pick. 49; Hay V. Green, 12 Cush. 282; Leach V. Green, 116 Mass. 536; see Wolf V. Oxholm, 6 M. & S. 99; Folliott V. Og-den, 1 H. Black. 131; Jeffery V. M'Taggart, 6 M. & S. 126; Levy V. Levy, 78 Penn. St. 507; Murrell V. Jones, 40 Miss. 565; Tully V. Herrin, 44 Miss. 626.

3 Tronb. & Haly Prac. by Brightly, sec 1664; Bunting V. R. R., 81 Penn. St. 254; cited supra, sec 797. In Massachusetts the only cases in which a third person has the exclusive right to the control of an action at law is when he has acquired the whole interest of the nominal plaintiff. Coffin V. Adams, 131 Mass. 133; citing Foss V. Lowell Bank, 111 Mass. 285.

4 Loudon Saving Fund V. Bank, 36 Penn. St. 498; see supra, sec 797, 836.

5 Supra, sec 795.

6 Wh. Con. of L. sec 364 et seq.; Ch. on Pl. 16th Am. ed. (1879) 17; Pollock, 3d ed. 227-9; Pinkett V. Wright, 2 Hare, 120; Murray V. Pinkett, 12 Cl. & F. 784; Ford V. White, 16 BeaV. 120; Clack V. Holland, 19 BeaV. 262; Littlefield V. Smith, 17 Me. 327; Bart-lett V. Pearson, 29 Me. 9, 15; Dix V. Cobb, 4 Mass. 508; Clarke V. Hawkins, 5 R. I. 219; Aldrich V. Campbell, 4 Gray, 284; Vanbuskirk V. Ins. Co., 14 Conn. 141; Murray V. Lylburn, 2 Johns. Ch. 441; Noble V. Oil Co., 76 Penn. St. 354; Sharts V. Await, 73 Ind. 304; Ellis V. Sisson, 96 Ill. 105; see Paine V. Lester, 44 Conn. 196; Pond V. Cooke, 45 Conn. 130; and other cases cited Wh. Con. of L. sec 334 et seq. 359, and see for further cases, infra, sec 1021 et seq.

1 Field, J., Cowdrey V. Vanden-burgh, 101 U. S. 575. That such an assignment may be of a future contingent interest (e. g. of a policy of life insurance), see Phipps V. Lovegrove, L. R. 16 Eq. 80; see to same effect Ingra-ham V. Disbrough, 47 N. Y. 421; Davis V. Bechstein, 69 N. Y. 440.

2 James, L. J., Phipps V. Lovegrove, L. R. 16 Eq. 80, 86; S. P., Lord St. Leonards, Mangier V. Dixon, 3 H. L. C. 702; Gochenauer V. Cooper, 8 S. & R. 187; Faull V. Tinsman, 36 Penn. St. 108; Finnell V. Nesbit, 16 B. Mon. 351; and see Morrow V. Bright, 20 Mo. 298. Pickering V. R. R., L. R. 3 C. P. 235, holds that " a creditor of A. who becomes entitled by operation of law to appropriate any beneficial interest of A.'s (whether an equitable interest in property or a right of action) for the satisfaction of his debt, can claim nothing more than such interest as A. actually had, and he can gain no priority by notice to A.'s trustee or debtor even in cases where he might have gained it if A. had made an express and unqualified assignment to him." This decision is stated by Mr. Pollock (3d ed. 229) to virtually overrule Watts V. Porter, 3 E. & B. 743.

3 Infra, sec 1020 et seq.

4 Cavendish V. Geaves, 24 BeaV. 163; Mitchell V. Winslow, 2 Story, 630; Hooper V. Brundage, 22 Me. 460; Trustees V. Wheeler, 61 N. Y. 88; Wood V. Mayer, 73 N. Y. 556; Metzgar V. Metz-gar, 1 Rawle, 227; see infra, sec 1025.

5 Graham V. Johnson, L. R. 8 Eq. 36.