action is created by statute it is expressly made transferable at Chap. IX. law in a specified manner, and, where this is the case, it can, ferable by generally speaking, be transferred in equity also. By "trans- statute. ferable at law" it is meant that the transferee is enabled to maintain an action in his own name. Examples of this are afforded by the public funds, legal transfers of which can be effected only by entries made in the transfer books at the Banks of England or Ireland and signed by the party making the transfer or his attorney (d), or, if the stockholder obtains a stock certificate, by delivery of the certificate (e). of shares in A member of a corporation cannot assign his interest in the Assignment corporate property and introduce his assignee into the corporation corporations without statutory authority (f). Such authority is expressly given or companies. in the case of companies regulated by the Companies Clauses Consolidation Act, 1845, which provides for the transfer of shares in the company by deed delivered to the secretary, and the entry of a memorial thereof by the secretary of the company in the "register of transfers" (g). Mortgages and bonds (commonly called debentures) of the company issued under the powers of the same Act are transferable at law by registered deed (h). The shares of a company registered under the Companies Act, 1908, are transferable in the manner prescribed by the regulations of the company, i.e., generally by the execution of an instrument of transfer registered in the books of the company (i). It has been said that, in the case of shares in a company Shares of a registered under the Companies Act, 1908, notices given to the company. company of equitable interests or trusts would be absolutely inoperative to affect the company with any trust, by reason of the provisions of s. 27 of that Act (k). Where, however, the company has a lien or charge upon the shares for debts due from the holder, notice from an equitable assignee of shares given to the (d) The National Debt Act, 1870 (33 & 34 Vict. c. 71), s. 22. (e) Ib. Part V., as extended by 2 Ed. 7, c. 7, s. 11. (f) Duvergier v. Fellows, 5 Bing. 267; 34 R. R. 578; Blundell v. Winsor, 8 Sim. 601; 42 R. R. 242. As to incorporated companies, see Lindley on Companies, Bk. III., ch. 4, s. 5; s. 1 of the Companies Act, 1908 (8 Ed. 7, c. 69); Smith v. Anderson, 15 Ch. D. (g) & 9 Vict. c. 16, ss. 14, 15; (h) Ib. ss. 46, 47; Vertue v. East Anglian R. Co., 5 Ex. 280. (i) 8 Ed. 7, c. 69, S. 22; post, Chap. XVI. (k) Société de Paris v. Walker, 11 App. Cas. 20, 30, per Lord Selborne. Chap. IX. company will prevent the company from claiming priority in respect of debts incurred after such notice (7). Distringas. 5 Vict. c. 5. Other choses in action ssignable by statute. The equitable assignee should protect himself by proceedings under the Act 5 Vict. c. 5, by filing an affidavit and notice in the prescribed form in the Central Office of the Supreme Court, and serving an office copy of the affidavit and a duplicate notice on the company (m). The Rules provide that the service on the company shall have the same force and effect against the company as a writ of distringas duly issued under the Act 5 Vict. c. 5, s. 5, would have had (n); that is, to prevent the fund being dealt with without the person who issued the writ having an opportunity of asserting his claim (o). This effect of the notice served under the new procedure is temporary only; and it should be followed up by obtaining an order under s. 4 of 5 Vict. c. 5 (p), upon motion or petition in a summary way, without action, to restrain the company from permitting the transfer of the stock or shares, or from paying any dividend or dividends due or to become due thereon; or, in the case of the Bank of England, an injunction may be obtained against the bank, under 39 & 40 Geo. 3, c. 36, in an action against the person interested in the stock (q). The following classes of choses in action have been made. assignable at law by statute, so as to enable the assignee to sue in his own name: Promissory notes were made transferable by indorsement (r). Policies of life assurance were made transferable by assignment by an instrument in the words or to the effect prescribed (s), on written notice of the date and purport of the assignment being given to the assurance company at their principal place of business for the time being; and the dates of the receipt of notice are to regulate priority of claims under assignments (t), as between the company and the assignees (u). (1) Bradford Bank v. Briggs, 12 App. Cas. 29. (m) R. S. C., Ord. XLVI. (n) Ord. XLVI, r. 8. (0) See per Stuart, V.-C., in Wilkins v. Sibley, 4 Giff. 446, 447, and Etty v. Bridges, 2 Y. & C. C. C. 486; 60 R. R. 240. (p) See Re Blaksley, 23 Ch. D. 549; Re Prynne, 53 L. T. 465. Policies of Friendly Societies were excepted from the Act of Chap. IX. 1867, but they are assignable in the ordinary way and also by way of "nomination" under the provisions of the Friendly Societies Acts (x). A marine policy, that is, a contract of insurance against marine losses, is assignable, unless it contains terms expressly prohibiting assignment, so as to enable the assignee to sue in his own name (y). It may be assigned either before or after loss (y); but an assignment after the assignor has parted with his interest in the property is not valid, unless at the time he parted with the property the assignor expressly or impliedly agreed to assign the policy (y). Administration bonds are made assignable, on breach, by order of Court (z). Other instances of choses in action made transferable by statute are East India bonds (a), mortgage debentures of land companies under the Mortgage Debenture Act, 1865 (b), debentures and debenture stock issued under the Local Loans Act, 1875 (c), choses in action of companies where sold by the official liquidator (d), bail bonds (e), and replevin bonds (f). choses in Under the Trustee Act, 1893, the right to recover and receive Vesting of any debt or other thing in action subject to a trust will, on the action in new appointment of a new trustee, without any assignment, vest in trustees. the trustees, if the deed appointing the new trustee contains a declaration by the appointor that it shall so vest (g); and the like effect follows where a deed by which a retiring trustee is discharged under the Act contains such a declaration by the retiring and continuing trustees and by the other person, if any, empowered to appoint trustees (h). But these provisions do not extend to "any such share, stock, annuity, or property as is only transferable in books kept by a company or other body, or in (x) Re Griffin, [1902] 1 Ch. 135. (y) Marine Insurance Act, 1906 (6 Ed. 7, c. 41), ss. 50, 51. See Baker v. Adam, 102 L. T. 248. (z) 20 & 21 Vict. c. 77, ss. 21 & 22 Vict. c. 95, s. 15; Bennett, [1911] 2 Ch. 488. (a) 51 Geo. 3, c. 64, s. 4. 81, (b) 28 & 29 Vict. c. 78, s. 37, amended by 33 & 34 Vict. c. 20. (e) 38 & 39 Vict. c. 83, ss. 5, 6. Vict. c. 89), s. 157, now repealed by the (e) 4 Anne, c. 3, s. 20, repealed by (f) 11 Geo. 2, c. 19, s. 23, repealed by 44 & 45 Vict. c. 59. (g) 56 & 57 Vict. c. 53, s. 12 (1). This Act repealed and re-enacted the provisions of sect. 34 of the Conveyancing Act, 1881. (h) 56 & 57 Vict. c. 53, s. 12 (2). Chap. IX. manner prescribed by or under Act of Parliament” (i); this exception being for the purpose of reserving to companies and other bodies the right to require transfers to be made in the statutory or prescribed form. Assignment of debts and choses in action under Judicature Act. It is provided by the Supreme Court of Judicature Act, 1873 (k), that: "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, 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." It will be observed that, in order to make an assignment of a chose in action valid at law by virtue of the Act, four things are necessary: (1.) The assignment must be in writing signed by the assignor. (2.) It must be absolute, not purporting to be by way of charge only. A mortgage of a debt due to the mortgagor, made in the ordinary form of a conveyance with a proviso for redemption, is "an absolute assignment, not purporting to be by way of charge only," within this section (1), and the result is the same where there is an assignment subject to a trust (m). The assignment must in every case be absolute (n), and probably must be of the whole debt or other chose in action (o), or at any rate of a definite part of the debt (p). (i) 56 & 57 Vict. c. 53, s. 12 (3). (m) Comfort v. Betts, [1891] 1 Q. B. 737; Wiesener v. Rackow, 76 L. T. 448. (n) Mercantile Bank v. Evans, [1899] 2 Q. B. 613; Hughes v. Pump House Co., [1902] 2 K. B. 190. (0) Durham v. Robertson, sup. (p) Jones v. Humphreys, [1902] 1 K. B. 10; Skipper v. Holloway, [1910] 2 K. B. 630; Forster v. Baker, id. 636, (3.) The chose in action must be legal (q). The words "debt or other legal chose in action" mean "debt or right which the common law looks on as not assignable by reason of its being a chose in action, but which a Court of Equity deals with as being assignable" (r). "An assignment of a mere right of litigation is bad; but an assignment of property is valid, even although that property is incapable of being recovered without litigation" (s). Thus an executory contract of purchase, of which there has been no breach, so that no action can be brought upon the contract, but which must if necessary be enforced by action, is a chose in action assignable under this section (r); and so is a claim, under s. 68 of the Lands Clauses Act, 1845, for compensation for injuriously affecting land (t). (4.) Notice in writing of the assignment must be given to the debtor or trustee. The effect is that, until the prescribed notice is given, the assignee must sue in the same manner as if the Act had not been passed, i.e., in the name of the assignor; but after the prescribed notice is given, he can sue in his own name. And the notice produces its full effect even if not given till after the death of the assignor (u), or after the death of the assignee by his executor (x). Where an assignment is perfected according to the Act, an assignee takes subject to all equities capable of being enforced by the trustee or debtor against him at the date of the assignment (y), and it follows that an assignment perfected according to the Act confers no new rights on the assignee, but merely gives him a new way of enforcing his rights. Chap. IX. Occasionally the subject-matter of a contract is such as to Exceptional render it not transferable either at law or in equity; as where contracts not assignable. the contract involves personal skill or confidence, e.g., a contract between an author and a publisher that the one shall write and the other publish a book (z); or where it may make a difference to (1) See King v. Victoria Co., [1896] A. C. 250. (r) Torkington v. Magee, [1902] 2 K. B. 427; [1903] 1 K. B. 644. (8) Dawson v. G. N. & C. Rly., [1905] 1 K. B. 260, 271; see May v. Lane, 64 L. J. Q. B. 236; Swan Co. v. Maritime Co., [1907] 1 K. B. 116. (t) Dawson v. G. N. & C. Rly., sup. (u) Walker v. Bradford Bank, 12 Q. B. D. 511. (x) Bateman v. Hunt, [1904] 2 K. B. 530. (y) Ante, p. 138. (z) Per Abinger, C.B., Gibson v. Carruthers, 8 M. & W. 343; 58 R. R. 713; Stevens v. Benning, 1 K. & J. 168; Robson v. Drummond, 2 B. & Ad. 303; 36 |