prefer to avoid discussing a question not free from difficulty, and to express no opinion what limitation, if any, should be placed on the literal meaning of that term " (1).

Upon the above dicta it is submitted that the preponderating balance of opinion is in favour of a broader and more liberal interpretation and construction of the Judicature Act than that which is expressed in the judgments enunciated in the case of May v. Lane which we have here cited, or that, at any rate, the latter must be taken subject to much modification. Perhaps, while upon this topic, it may not be considered out of place to say that as long ago as 1875, when the new Act was just in operation, it was said by learned editors of the Act that, at least in theory, there seemed no reason why, if a man had been libelled or assaulted, he should not under this sub-section assign his right to damages, and notice being given to the defendant, the assignee bring the action in his own name (m).

And this view was also held by the majority of the editors of the Act in question, adding that choses in action include rights to recover damages for a tort, though a contract is the most usual instance (n), and that the section prevents all the unnecessary circumlocution which was previously involved in the course of recovery (0).

On the other hand, it has been held, that a mere "equity of redemption" is not a legal chose in action within the Act (p). But upon what principle such decision was based it is difficult to conceive, and perhaps may be said to be subject to review. Further, a bare promise to make "further advances" to a borrower creates no

(1) King v. Victoria Insurance Co., (1896) Ap. Ca. 254-256.

(m) Lely & Foulkes, The Judicature Acts, 1873 and 1875 (1st ed. 1875), p. 27.

(n) Colquhoun, Judic. Acts, 19;

Chitty, Practice, 99, n.; Mackeson & Forbes, Judic. Act, 34; 2 Spence, Eq. 852.

(0) Rogers, Judic. Act, 114. (p) Cronk v. McManus [1892], 8 T. L. R. 449.

debt or legal chose in action within the sub-section, if such a promise is not enforceable, and simply one of imperfect obligation (9).

And so, in another case, where a trader, who carried on the business of a theatrical costumier, contracted with a company to supply dresses for a ballet and keep them in repair for the sum of 407. a week for twelve weeks, commencing from a certain date; and the trader subsequently gave a charge upon such right and interest under the contract in favour of B. as security for an advance by B.; and the dresses were duly supplied to the company, but before any moneys became payable under the contract the trader became bankrupt; it was held, that the charge in favour of B. gave no title as against the trustees in bankruptcy of the trader, so far as it concerned moneys which might become due after the commencement of the bankruptcy. There was no debt due (r).

Upon the cases above cited and authorities given, together with the general convenience and reasonableness of such interpretation, it is submitted that the expression "debt or other legal chose in action" may be open to a generous interpretation so as to include within its meaning that wide class of interests which can, with any adequate show of reasoning, be brought under the operation of this sub-section.

(9) Western Wagon, &c. Co. v. West, (1892) 1 Ch. 271.

(r) Wilmot v. Alton, (1897) 1 Q. B. 17. See, also, Ex parte Nichols, 22 Ch. D. 782.

CHAPTER II.

REQUISITES OF A VALID ASSIGNMENT WITHIN THE ACT. ASSUMING we are satisfied that the particular interest with which we may be dealing falls within the category of a "debt or other legal chose in action," it will yet remain for us to consider whether the transaction which was intended to transfer the interest from its owner to another was such as to satisfy fully the terms of the Act.

In other words, what constitutes a valid assignment under the Act? What are the requisites of the sub-section which must be complied with in order that the assignee may have recourse to the rights and remedies thereby conferred, and the debtor or other obligor may be protected, in the event of his paying the assignee, against all claims by the assignor or any other person, in respect of the subject-matter of the assignment? The requisites are four:

(1) The assignment must be absolute.

(2) It must not purport to be by way of charge only.

(3) It must be by writing under the hand of the assignor.

(4) Express notice in writing must be given of the assignment, to the person from whom the debt or other chose in action is to be recovered.

(1) The Assignment must be Absolute.

Again, the Act does not define the term, which it should have done.

What is an absolute assignment ?

What is an assignment within the meaning of the Act? No particular form is prescribed or suggested. No statement is made as to whether it should be under seal or not. Further, the mode of transfer under the Act appears to be permissive, not imperative, so that assignments of legal choses in action may be made as before the Act. And a further question arises as to whether legal choses in action, which were previously assignable at law by the modes indicated by their special enactments, may not be legally assigned by a mere writing under the sub-section, which is universal in its language, and, being subsequent in date, may override prior Acts (a). But it would appear that any writing which can be construed into a transfer of the subject-matter will do, provided it is in effect an out-and-out transfer of the benefit in the chose in action, and provided, also, the particular chose in action is not governed in its mode of transfer by some other statutory enactment. For, it will not be safe to conclude, apart from either a clear declaration by the legislature, or judicial decision, that any previous or subsequent Act is in any way to be affected by this sub-section of the Judicature Act in respect of any particular class of choses in action with which such Act specially deals. It is not necessary to use the word "assign" nor any other particular words, so long as the effect of the writing is to transfer the interest to the assignee. It may be by deed, or simple writing, declaring or directing that the subject-matter shall thereby vest in the person to whom it is intended to transfer it. It might be thought that an "absolute " assignment meant one which was wholly unconditional and complete; but this is not so. An assignment may contain a clause providing for the re-vesting of the chose in action, or the fruits or part of the fruits thereof, in the assignor upon the happening of some event or the

(a) Trower, Judic. Act, 48.

fulfilment of some condition, and yet such an assignment may be absolute (b). An assignment may be absolute within the meaning of the sub-section although a trust is created by it in respect of the fruits of the subject-matter of the assignment for the benefit of the assignor. Thus a deed was executed by creditors of B., by which, after recital of an agreement that their debts should be assigned to A. on the terms that he should proceed to recover the same, and pay to them respectively, out of the aggregate amount recovered, such proportionate part thereof as should represent the individual debt due to them respectively, or such part thereof as might have been recovered, it was witnessed that they assigned their respective debts to A., to hold the same absolutely. Held, this was an absolute assignment within the meaning of the sub-section. It was said, further, the legal property in the debts was intended to pass, leaving only a trust; and that therefore there was an assignment which purported to be absolute, and which the parties intended to be so. There was nothing enabling the Court to limit the plain words of the Act. The assignment, in question, was intended to give the assignee all the rights conferred by the sub-section, and did, not only in point of form (for it used the word absolutely"), but also in intention of the parties, operate as an absolute assignment (c). So, too, a mortgage may be within the sub-section, as being an absolute assignment, although subject to a proviso for redemption (d); but it must transfer the property to the mortgagee. Previously to this Act, it was held that a cheque was not an equitable assignment of the drawer's

(b) Burlinson v. Hall [1884], 12 Q. B. D. 347; Ibberson v. Neck [1886], 2 T. L. R. 427. See, also, Buck v. Robson, 3 Q. B. D. 686; Ex parte Hall, In re Whitting, 10 Ch. D. 615; Walker v. Bradford Bank, 12 Q. B. D. 511.

(c) Comfort v. Betts, (1891) 1 Q. B. 737; Wiesener v. Rackow, 76 L. T. 448. And see In re Bell, Jeffery v. Sayles, (1896) 1 Ch. 1.

(d) Tancred v. Delagoa Bay Rail. Co. [1889], 23 Q. B. D. 239,