PART V. security to be settled by the master to indemnify him against the risk of not obtaining the renewal contracted for (a). In the case of a rent charged upon land, part of which was afterwards sold as free from incumbrance, indemnity was given by an equivalent charge upon other land contingent upon the rent being levied out of the land sold (b). Upon a purchase in fee simple free of incumbrance, indemnity against the claim of dower by the vendor's wife was given by the court ordering a sufficient portion of the purchasemoney to be set aside to meet the contingency (c). Where leasehold was sold, which was found to be subject to forfeiture under the covenants in a superior lease, the court refused specific performance, upon the ground that the defect was not the proper subject of compensation or indemnity, because the purchaser was liable to be entirely deprived of the property (d). Under an agreement to grant a lease with usual covenants, the lessor having no title to the minerals, the lessee was held entitled to have a lease executed with an absolute covenant for quiet enjoyment, in order to indemnify him against risk of loss from the mines being worked during the term (e). (a) Milligan v. Cooke, 16 Ves. 1. (b) Halsey v. Grant, 13 Ves. Horniblow v. Shirley, 13 Ves. 81. 73; (c) Wilson v. Williams, 3 Jur. N. S. 810. (d) Fildes v. Hooker, 3 Madd. 193. See Nouaille v. Flight, 7 Beav. 521; 13 L. J. C. 414. (e) Onions v. Cohen, 2 H. & M. 354; 34 L. J. C. 339. PART VI. ASSIGNMENT OF CONTRACTS. CHAPTER I. PRINCIPLES OF ASSIGNMENT. PAGE ..... Assignment at common law-in equity-under the Judicature 826 ..... 828 830 Assignee takes subject to equities against the assignor-equities 836 Assignment of debt by new agreement of the parties-assignment 838 AN assignment of the rights and liabilities arising out of contracts may occur :-by act or agreement of the parties;-by the assignment of estates and interests in land to which covenants running with the land are annexed;-by death transferring the estate of the deceased to his representatives;-by bankruptcy operating as an assignment in law for the benefit of creditors. Formerly marriage operated as an assignment of the wife's choses in action, provided the husband reduced them into possession in his wife's lifetime, or became her personal representative, but the law has since been altered as hereafter mentioned (a). By the rule of common law choses in action, under which class Assignment are included rights arising from a contract, and rights of action at common for breach of contract, are not assignable by act of the parties (b) ; (a) See post, Part VI., Chap. IV. Master v. Miller, 4 T. R. 340; 1 Sm. law. PART VI. and it is not competent for parties, though contracting in express terms with "assigns," to dispense with the rule and render the right of action assignable at law (c). Exceptions occur to this rule with bills of exchange, which were negotiable by the law merchant or general custom of merchants; and some other exceptions occur by custom and some by statute. These exceptions are referred to in this and the following chapter. Assignment in equity. The Court of Chancery, in the exercise of equitable jurisdiction treated the assignment of a legal chose in action as importing an agreement that the assignee should use the name of the assignor in proceedings at law to realise the chose in action; which agreement, if supported by a valuable consideration, the court would specifically enforce, and compel the assignor to allow his name to be used in proceedings at law on an indemnity against costs (d). Effect in law And the courts of law applied the same equitable construction of an assignment in the exercise of their summary jurisdiction over suitors, by setting aside or controlling any legal proceedings founded upon an intervention of the assignor in breach of his agreement to assign; as a plea of release given by him to the debtor, or of payment by the debtor to the assignor, in fraud of the assignee (e). The courts of law also gave a right of action to the assignee for any such intervention of the assignor which operated in breach of his agreement (f). Now under the Judicature Acts express provision is made for the assignment of a legal debt or chose in action; and the rules and practice of the courts of common law in protection of assignments are superseded in all courts by the rules of equity (g). Assignment By the Judicature Act, 1873, s. 25 (6), "any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal chose in action, of which express notice in writing shall have been given to the debtor, trustee, or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, 220. (e) Legh v. Legh, 1 B. & P. 447. See ante, p. 660, n. (9). (f) Gerard v. Lewis, L. R. 2 C. P. 305; 36 L. J. C. P. 173. See Aulton v. Atkins, 18 C. B. 249; 25 L. J. C. P. 229 Re Patrick, (1891) 1 Ch. 82; 60 L. J. C. 111. (g) See Judicature Act, 1873, s. 25 (6), (11). shall be and be deemed to have been effectual in law (subject to all equities which would have been entitled to priority over the right of the assignee if this Act had not passed) to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same, without the concurrence of the assignor"; but with the proviso that if the debtor has notice that such assignment is disputed by the assignor or any one claiming under him or of any other opposing claims he may require the parties to interplead or he may pay the money into court. The provisions of this section are retrospective and apply to an assignment of a chose in action made before the Act came into operation (h). СНАР. І. of Act. A voluntary assignment is within the Act; a valuable considera- Construction tion not being essential to support a legal assignment as against the assignor, or as against his debtor or trustee of the debt (i). The assignment of an indefinite and unascertained part of a debt, is insufficient, and it is doubtful if the statute permits the assignment of anything less than the entirety of the debt (j). A debt payable at a future date or upon a contingent event is a chose in action and assignable within the Act: as an assignment of money becoming due for work in progress of completion (); an assignment of the assignor's present or future balance at his banker's (). The assignment of a debt by way of mortgage to secure a smaller debt, with a proviso for redemption and reconveyance, is an "absolute assignment not purporting to be by way of charge only" within the Act (m). And the assignment of a debt upon trust to receive the amount and after retaining a certain sum due to the assignee to pay the surplus to the assignor is an absolute assignment within the Act (n). So an assignment of debts by several creditors to a trustee for collection, and payment rateably among the assignors is good (o). Where (h) Dibb v. Walker, (1893) 2 Ch. 429. (i) Walker v. Bradford Bk., 12 Q. B. D. 511; 53 L. J. Q. B. 280; Harding v. Harding, 17 Q. B. D. 442; 55 L. J. Q. B. 462. (j) Jones v. Humphreys, (1902) 1 K. B. 10 71 L. J. K. B. 23. See Durham v. Robertson, (1898) 1 Q. B. 765; 67 L. J. Q. B. 484. (k) Brice v. Bannister, 3 Q. B. D. 569; 47 L. J. Q. B. 722. See Western Wagon Co. v. West, (1892) 1 Ch. 271; 61 L. J. (1) Walker v. Bradford Bk., supra. (n) Burlinson v. Hall, 12 Q. B. D. 347; (0) Comfort v. Betts, (1891) 1 Q. B. 737; 60 L. J. Q. B. 656, PART VI. Notice to the debtor. Contracts incapable of assignment. Foreign contracts. Remedies of assignee. the interest of the assignee was made to depend upon the state of accounts between him and the assignor and on a future uncertain event coming to an end, the assignment was held not to be absolute (p). So where the assignment was expressed to be by way of security and contained an appointment of the assignee as the attorney of the assignor, it was also held to be outside the Act (2). -The notice to the debtor or trustee required by the Act may be given after the death of the assignor (r). And it is not required that the debtor or trustee should accept the notice in the sense of agreeing to be bound by it (s). Some contracts are of a kind incapable of assignment either at law or in equity by reason of importing the consideration of personal skill or confidence: as the contract of an artist to paint a picture, or of an author to write a book, or of a publisher to publish a book; which do not admit of the contractor substituting the skill or capacity or credit of an assignee (†). And a manufacturer of a special quality of goods, having accepted an order, cannot assign the order to another manufacturer and entitle him by supplying his own goods to charge the customer (u). But a contract that certain work shall be done, or goods supplied, without regard to the persons engaged, is assignable; and upon performance of all the conditions stipulated for, the assignee is entitled to the benefit of the contract; as a contract to let railway wagons for a term of years and to keep them in repair during the term for an annual payment (v). The same rules apply to the assignment of foreign contracts within the realm, unless assignable by universal custom; as is the case with the scrip and bonds of foreign governments issued as payable to bearer (x). The validity of an assignment of foreign contracts which are assigned abroad is governed by the law of the country where the assignment is made (y). The assignee of a legal debt or chose in action must pursue the remedy of his assignor, and in the court and with the proceedings (p) Durham v. Robertson, (1898) 1 Q. B. 765; 67 L. J. Q. B. 484. (q) Mercantile Bk. v. Evans, (1899) 2 (r) Walker v. Bradford Bk., supra. (t) Stevens v. Benning, 6 D. M. & G. (u) Per cur. British Wagon Co. v. Lea, 5 Q. B. D. 152; 49 L. J. Q. B. 321. See Johnson v. Raylton, 7 Q. B. D. 438; 50 L. J. Q. B. 753. (v) British Wagon Co. v. Lea, supra. (x) Goodwin v. Robarts, 1 Ap. Ca. 476; 45 L. J. Ex. 748. (y) Innes v. Dunlop, 8 T. R. 595; Lee v. Abdy, 17 Q. B. D. 309; Alcock v. Smith, (1892) 1 Ch. 238; 61 L. J. C. 161. |