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of the assignment or transfer by operation of law, he is bound to hold the fund in his hands for the benefit of the new "creditor"; the notice fixes the money in his hands, and he can no longer pay the "debt" to the original "creditor" without first satisfying the new "creditor."

If no consideration were given for the assignment, and it were not by deed, it may be revocable on the part of the assignor; but until it is revoked, it is valid and binding on the "debtor," who may pay to the assignee or other new "creditor" in compliance with the assignment, and such payment will be good against the assignor or original "creditor."

But it is always necessary for the "debtor" to assure himself that the assignment is the act of the original "creditor," or that the person otherwise standing in the shoes of such original "creditor" is the legal representative of or substitute for him, to whom performance should be rendered.

The "debtor" must also be clear that the fund is sufficiently well indicated, otherwise he may pay wrongfully.

Further, he cannot demand an indemnity from the assignee or other "creditor"; and if he pays the assignor, he can be compelled to pay over again to the assignee (a).

If a document relied on as an assignment be addressed by the assignor neither to his creditor nor to his "debtor," but only to some agent of his own, such as a solicitor, rent-collector, or bailiff, bidding him to pay a certain debt out of a certain fund, it is not an assignment at all, but only a power of attorney (b). It is a mere mandate and gives the "creditor" no definite

(a) Jones v. Farrell, 1 De G. & J. 208.

(b) Rodick v. Gandell, 1 De G. M. & G. 763; Bell v. L. & N. W. Rail. Co., 15 Beav. 548; Morrell

v. Wootten, 16 Beav. 197. Cp.
Malcolm v. Scott, 3 Ha. 39; Jones
v. Starkey, 16 Jur. 510; Field v.
Megaw, L. R. 4 C. P. 660;
Percival v. Dunn, 29 Ch. D. 128.

H

charge upon or right to that specific fund, and until it is communicated to the creditor, and assented to by him, it is revocable (c). The bankruptcy or death of the principal will operate as such a revocation (d).

As to whether and when an assignment is valid or not, see the cases cited in the former chapters on the Assignability of Choses in Action (e).

But it is to be observed here, the presence of a term in a contract, that "it shall not be assignable in any case whatever," will not prevent an assignment of all the beneficial interest thereunder being effected (ƒ). Further, it must be remembered that in respect of all cases not falling within the operation of the Judicature Act, 1873, or that of some other statutory enactment regulating the assignment of choses in action, no formal notice in writing is necessary to the "debtor"; and he will be bound by the assignment (which, also, need not be in writing, or if in writing, in no particular form) by the merest notice possible as in the old days and under the old cases. That is to say, a chance report in a newspaper, a casual conversation with someone long ago and long forgotten, may render the "debtor responsible to the new "creditor," and liable to pay twice if he has paid another.

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As to what notice and other formalities are requisite in cases under the Judicature Act, see reference thereto in Bk. III., Ch. II. (g).

As to the "debtor's" right of set-off and other defences known as "the equities," see Bk. II., Ch. II. (4).

Generally speaking, where there are adverse claims, the "debtor" may pay the money into Court, or bring the claimants to an issue (i).

(c) Scott v. Porcher, 3 Mer. 652; 17 R. R. 161; Greenway v. Atkinson, 29 W. R. 560.

(d) Ex parte Hall, 10 Ch. D. 615; In re Russell, 37 Sol. J. 212. But see Fitzgerald v. Stewart, 2 Russ. & M. 457.

(e) Ante, Bk. II.-Bk. IV.
(f) In re Turcan, 40 Ch. D. 5.
(g) Ante, p. 163.

(h) Ante, p. 104.

(i) Post, "Practice," Bk. VII., Ch. II.

The subject of priority of notice treated herein (j) is of great importance, and sometimes of difficulty, to the "debtor," and care must be taken in determining aright who is the person entitled to priority by reason of priority of such notice. And here let it be remembered that matter of priority is not affected by the question as to whether the interest of the assignor is vested or contingent, present or reversionary (k). Priority in such cases depends simply and solely on priority of notice (1).

A second assignee giving notice of his assignment will be equally entitled to priority when he has taken such assignment from the legal personal representative of the cestui que trust who made the assignment to a first assignee (m).

Neither debtors, fundholders, nor trustees of any kind are under any obligation to answer inquiries as to existing incumbrances (n).

Notice of an assignment need not be given by any particular person; neither by the assignor nor assignee ; it will be sufficient by whomsoever it be given, and will bind the "debtor" (o).

When the assigned funds are affected by successive trusts, notice must be given to the trustees for the assignor, not to the trustees of the original settlement, although it may happen that the latter have the actual control of the funds (p).

Notice of assignment of personalty vested in trustees, or of debts, should be given to all the trustees or debtors in writing (2).

New trustees are not affected by the notice of an assignment of the funds comprised in the settlement

(j) Bk. II., Ch. II., p. 86; Bk. III., Ch. II., p. 176.

(k) Dearle v. Hall, 3 Russ. 1; 27 R. R. 1.

(1) Ward v. Duncombe, (1893) Ap. Ca. 390. But see references

in n. (j), supra.

(m) Re Freshfield's Trusts, 11 Ch. D. 198.

(n) Low v. Bouverie, (1891) 3 Ch. 82; Re Tillott, (1892) 1 Ch. 88. (0) Lloyd v. Banks, L. R. 3 Ch. Ap. 488. And see "Notice" under Judicature Act, supra.

(p) Stephens v. Green, (1895) 2 Ch. 148.

(a) Re Hall, 7 L. R. Ir. 180.

given to their predecessors, nor are they bound to inquire from them whether they have received notice of any incumbrances; nor will the new trustees incur any liability if they, without fresh notice of the assignment, &c., distribute the trust funds before receiving any such notice; and a subsequent incumbrancer who gives notice to them may gain priority over a former incumbrancer who merely gave notice to the new trustees' predecessors (»).

A trustee who receives notice of an assignment of the trust fund effected by the cestui que trust, is not, in the absence of inquiry, bound to inform the person giving him the notice, that he himself has a prior assignment; and merely omitting to give such information will not postpone the trustees' right of priority (8).

Where notices of assignment are simultaneous, the assignments will take priority according to their respective dates of execution (†).

Notice of assignment given to the solicitors of trustees will only be effectual and valid if the former are actually authorized as agents to receive such notice (u).

The principle laid down in Dearle v. Hall, as to the effect of notice in the determination of priority of equitable rights, does not affect or apply to joint stock companies registered under the Companies Act of 1862 (r); on the other hand, the directors and secretary of a company might possibly be held personally liable if, disregarding a notice of a trust as to shares, they permitted such shares to be transferred contrary to such notice (w).

Notice given to the proper officers of the company,

(r) Phipps v. Lovegrove, L. R. 16 Eq. 80; Newman v. Newman, 28 C. D. 678. Cp. Ward v. Duncombe, supra (pp. 394, 395). (s) Re Lewer, 5 Ch. D. 61.

(t) Calisher v. Forbes, L. R. 7 Ch. Ap. 109; Johnstone v. Cox, 16 Ch. D. 571.

(u) Saffron Walden, &c. Co. v. Rayner, 14 Ch. D. 406, 410; Arden v. Arden, 29 Ch. D. 702; Re Frewen, 60 L. T. 953; English, &c. Investment Co. v. Brunton, (1892) 2 Q. B. 706.

(v) Companies Act, 1862, s. 30. (w) Healy on Companies, cited 1 Wh. & T. 126.

such as the secretary (x), or a director and actuary (y), or a director and auditor (z), has been held to be good. Even a verbal notice to a board of directors in the way of business has been held good (a); but not in course of a casual conversation with a clerk in the company's service (b).

The Rules of the Supreme Court direct that

Service of an order that debts, due or accruing to the debtor, liable under a judgment or order, shall be attached, or notice thereof to the garnishee, in such manner as the Court or judge shall direct, shall bind such debts in his hands (c).

If a garnishee neither forthwith pays the amount due from him to the debtor into Court (or an amount equal to the judgment or order), nor disputes the debt alleged to be due from him, nor appears upon summons, the Court or judge may order execution to be levied against him for the amount alleged to be due from him, or for the amount necessary to satisfy the judgment or order (d).

If the garnishee disputes his liability the Court or judge may order an issue to try such liability (e).

If the garnishee suggests that the debt due by him. is due to someone else, the Court or judge may order that third person to appear and state the nature of his claim (ƒ); with which matter the Court or judge may deal and direct as is fit (g).

Payment made by, or execution levied upon, the garnishee under any such proceeding as aforesaid, shall be a valid discharge to him as against the debtor,

(x) Société Générale de Paris v. Tramways, &c., 14 Q. B. D. 424. (y) Ex parte Hennessey, 1 Con. & Law. 559.

(2) Ex parte Waithman, 4 Deac. & Ch. 412.

(a) Re Agra Bank, L. R. 3 Ch. Ap. 555; Alletson v. Chichester, L. R. 10 C. P. 319.

(b) Ex parte Carbis, 4 Deac. & Ch. 354; Société Générale de Paris v. Tramways, supra.

(c) Ord. XLV. r. 2.
(d) Id. r. 3.
(e) Id. r. 4.
(f) Id. r. 5.
(g) Id. r. 6.

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