by merely omitting to inform a subsequent incumbrancer or assignee that he has a prior charge (c).

Moreover, on a purchase from a mortgagee of a fund standing in the name of trustees, it is not an essential blot on the title that notice of the incumbrance was not given to the trustees, if it can be shown that no notice has been given by any incumbrancer subsequent to such mortgage; but otherwise the title may be bad (d). Notice will not generally be effective beyond the amount, if any, named in the notice (e).

A subsequent assignee's knowledge of a prior incumbrance may preclude him from priority over the former assignee who did not give notice of assignment. Thus A. advanced money on a policy which was deposited with him, but gave no notice to the company. B. afterwards advanced money on the policy, which the assignor promised to deliver to him, and it was further expressed in writing that the policy was to be assigned to B. B. gave notice to the company of his loan and memorandum of deposit. B. frequently applied to the policy-holder (assignor) for the policy, but the latter made various excuses, and died, leaving it in the possession of A. It was held, that the circumstances of the case were such as to put B. on inquiry at the time of the loan, and to fix him with constructive notice of A.'s security, and that the title of A., as in possession of the policy, must prevail over that of B., although B. gave notice to the company and A. did not (ƒ).

Where there are rival assignees, and both give notice of their assignments at the same time, the assignees will rank in order of date of their respective assignments (g), or, as it has been put, "the notices being simultaneous,

(c) Ex parte Garrard, 5 Ch. D.61. (d) Hobson v. Bell, 2 Beav. 17, 24, 25.

(e) Woodburn v. Grant, 22 Beav. 483.

(f) Spencer v. Clarke [1878], 9 Ch. D. 137.

(g) Calisher v. Forbes, L. R. 7 Ch. Ap. 109,

the elder must be preferred to the younger security" (h). When there are conflicting rights, for the determination of which it is necessary to ascertain the actual priority, the law will take notice of the fractions of a day (i).

It is not sufficient, for the purposes of displacing or obtaining priority over another incumbrancer or assignee, that notice should have been given to a person who may become a trustee, even though he subsequently does become such trustee. He must actually be trustee at the time notice is given to him (j). Nor will notice to a trustee's general agent, or legal adviser, be a sufficient notice, unless such agent be expressly or impliedly authorized to act in that manner and matter on the principal's behalf (k).

Again, where debts due to a partnership firm were assigned, upon the dissolution, by the retiring partners to the continuing partner, and no notice of the assignment was given to the debtors, it was held upon the bankruptcy of the partners, that such debts remained within the order and disposition of the partnership within the Statute of James (1); nor was a mere notice to the debtors to pay to one of the partners deemed a sufficient notice to take the case out of the Statute of James (m).

Again, where an assignee is unable to give the necessary notice, but has otherwise done all in his power

(h) Johnstone v. Cox [1880], 16 Ch. D. 576.

(i) Tomlinson v. Bullock, 4 Q. B. D. 230, 232.

(j) Somerset v. Cox, 33 Beav. 634; Webster v. Webster, 31 Beav. 393; Buller v. Plunket, 1 Jno. & H. 441; Yates v. Cox, 17 W. R. 20; Addison v. Cox, L. R. 8 Ch. Ap. 79; Roxburghe v. Cox, 17 Ch. D. 520.

(k) Willes v. Greenhill, 29 Beav 392; Rickards v. Gledstanes, 3 Gif. 298; Saffron Walden, &c. Bdg. Soc. v. Rayner, 14 Ch. D.

406; Re Russell's Policy Trust, L. R. 15 Eq. 26; Arden v. Arden, 29 Ch. D. 702; Re Cousins' Trust, 31 Ch. D. 671; Hester v. Hester, 34 Ch. D. 616; Re Hall, 37 Ch. D. 712; Tate v. Hyslop, 15 Q. B. D. 368; Re Frewen, 60 L. T. 953; English Investment Co. v. Brunton, (1892) 2 Q. B. 706.

(1) Ex parte Burton [1822], 1 G. & J. 207; Ex parte Usborne,

Id. 358.

(m) Ex parte Sprague, 4 De G. M. & G. 866.

towards what is tantamount to taking possession, he will not lose his priority over a subsequent assignee by reason of such inability. Lex neminem cogit ad vana seu inutilia peragenda (n). And so, it seems, the same holds good where the assignee, through infancy or otherwise, is unable to give the necessary notice, his priority will not thereby be defeated; at any rate, not by the assignor's trustee in bankruptcy (0).

But the equitable doctrine of notice, as laid in Dearle's Case, does not apply to shares in companies registered under the Companies Act, 1862 (p), nor does it appear to apply to shares in companies not so registered. And although it is not applicable to assignments of chattel interests in realty (q), yet it does affect the assignment of the proceeds of the sale of real estate (), and of moneys secured by debentures chargeable on real estate (s); and where a person is equitably entitled to moneys secured on real estate (f), or to a portion to be raised out of real estate, whether by sale, mortgage or otherwise (u), such interest is not deemed to be an interest in real estate, and consequently the assignees of such choses in action must give the requisite notice.

If the fund or other chose in action affected be in Court, no such notice is needed; but the proper course is to obtain a stop-order on the fund, which will have the same effect as notice (r).

(n) Feltham v. Clark [1847], 1 De G. & Sm. 313; Langton v. Horton, 1 Hare, 549; Johnstone v. Cox, 16 Ch. D. 571.

(o) In re Mills, (1895) 2 Ch. 564.

(p) Société Générale v. Tramways Union, 11 Ap. Ca. 20; Colonial Bank v. Whinney, Id. 426; Bradford Banking Co. v. Briggs, 12 Ap. Ca. 29; Simpson v. Molsons' Bank, (1895) Ap. Ca. 270.

(4) Wiltshire v. Rabbits, 14 Sim. 76.

(r) Lee v. Howlett, 2 K. & J.

531; Arden v. Arden, 29 Ch. D. 702.

(8) Christie v. Taunton, (1893) 2 Ch. 175.

(t) Daniel v. Freeman, 11 Ir. Rep. Eq. 233.

(u) Lee v. Howlett, 2 Kay & J. 531; Consol. Co. v. Riley, 1 Gif. 371.

(v) Greening v. Beckford, 5 Sim. 195; Warburton v. Hill, Kay, 470; Pinnock v. Bailey, 23 Ch. D. 497; Mack v. Postle, (1894) 2 Ch. 449.

But it is not necessary to register a legacy charged upon land situated in a register county, and such nonregistration will not affect the assignee's priority (w).

It has been held that the assignees in bankruptcy who neglected to give notice lost their priority equally with particular assignees (x).

SUBJECT TO EQUITIES.

The assignee of a chose in action generally takes it subject to all the equities which obtain against the assignor as affecting or attaching to the subjectmatter (y). In other words, whatever defence, counterclaim, set-off, or other partial or full answer the debtor or fund-holder would be entitled to raise and set up against the assignor's claim, he may also prefer against the assignee; and this right extends up to the time when the person who is bound, under the assignment, to pay has notice of the assignment or incumbrance.

Thus, where a son upon his marriage was to receive from his mother, as a portion with his wife, exactly as much as his intended father-in-law was to allow to his daughter upon the marriage, and privately, without the knowledge of his mother, who treated respecting the marriage, the son gave a bond to the intended fatherin-law to pay back seven years after 1,0007. of the intended wife's portion in consideration of the fatherin-law making the wife's portion 3,000l. instead of 2,000l. only; and the bond was subsequently assigned

(w) Malcolm v. Charlesworth, 1 Keen, 63; Arden v. Arden, supra.

(x) In re Barr's Trusts, 4 K. & J. 219; Stuart v. Cockerell, L. R. 8 Eq. 607; In re Russell's Trusts, L. R. 15 Eq. 26.

(y) Turton v. Benson [1718], 1 P. Wms. 496; In re Milan Tramways, Ex parte Theys, 22 Ch. D. 122; see also Winch v. Keeley, 1 T. R. 619; Row v. Dawson,

1 Ves. 331; Pope v. Onslow, 2 Vern. 286; King v. Lacey, Bunb. 337; Whitacre v. Pawlin, 2 Vern. 229; Brown v. Heathcote, 1 Atk. 162; Mangles v. Dixon, 3 H. L. Ca. 702; Smith v. Parkes, 16 Beav. 119; Rolt v. White, 31 Beav. 520; Chartered Bank of India v. Henderson, L. R. 5 P. C. 501; 2 Spence, 863-865; Ord v. White, 3 Beav. 357.

by the father-in-law for the benefit of his creditors; it was held that the bond being void in equity in the hands of the father-in-law, could not be made a better bond by assignment in the hands of his creditors, although taken without notice of the son-in-law's fraud (z). The bond was void in the hands of the assignor, and consequently equally void in the hands of the assignee (2). In another case, debentures under the common seal of a joint stock company incorporated under 7 & 8 Vict. c. 110, were given to A. in July, 1854, in pursuance of an arrangement made between A. and the chairman of the directors, which was a fraud on the company. These debentures were afterwards purchased by B. in the market in the ordinary course of business. The transfer to B. was registered in the books of the company, and interest was paid to July, 1855, inclusive, but the matter was not made known to the shareholders till December in that year, when an investigation of the affairs of the company took place, in consequence of which the directors resigned, and the further payment of interest was refused. It was held : that although B. was a bonâ fide purchaser for value without notice, yet being the purchaser of only a chose in action not assignable at law, he must take it subject to the equities attaching to it, and that, under the above circumstances, neither the registration nor the payment of interest had the effect of a confirmation of B.'s title, and that he ought to be restrained from suing at law upon the debentures (a).

Again, some legatees (who were also the testator's next of kin) commenced an action in the Probate Division against the executor of the will, claiming a revocation of the probate, and while that action was pending

(z) Turton v. Benson, supra; see also Barnett v. Sheffield, 1 De G. M. & G. 371.

(a) Athenaum Life Assurance Soc. v. Pooley [1858], 3 De G. & Jo. 294; Graham v. Johnson, L. R. 8 Eq. 36.