¹ Much assistance in what follows has been derived from articles by Professor Bailey in 47 L.Q.R. 516 and 48 L.Q.R. 248 and 547; R. E. Megarry in 59 L.Q.R. 58 and 208; Professor Hollond in 59 L.Q.R. 129; and also from Dr. Marshall's The Assignment of Choses in Action (1950).

² “or other legal chose in action”—Judicature Act, 1873, s. 25 (6).

³ The common law allowed two main exceptions: the Crown had a prerogatival right both to assign and to receive assignment of debts; and debts embodied in negotiable instruments were freely transferable.

⁴ Re Westerton [1919] 2 Ch. 104.

⁵ The actual requirement is that X shall be given notice, but not necessarily by A.

⁶ Re Westerton, supra.

⁷ Skipper & Tucker v. Holloway [1910] 2 K.B. 630.Google Scholar

⁸ [1910] 2 K.B. 636.

⁹ [1921] 1 Ch. 349.

¹⁰ Because, as will be seen, all persons interested in the debt must be made parties to an action so that the matter is adjudicated once and for all.

¹¹ [1933] 1 K.B. 81, described by the trial judge as the most unsatisfactory case he ever had to deal with.

¹² For early examples see Perryer v. Halifax (1677) Rep.t.Finch 299; Squib v. Wynn (1717) 1 P.Wms. 378.

¹³ [1905] A.C. 454.

¹⁴ But not if the assignment related only to part. This is dealt with below.

¹⁵ Performing Right Society, Ltd v. London Theatre of Varieties, Ltd. [1924]Google Scholar A.C. 1. But the joinder of an assignee will not be required by the court if the assignor has retained no interest and the debtor does not object: Brandt's v. Dunlop, supra.

¹⁶ Assuming it is not a more expectancy. This is discussed below.

¹⁷ (1851) De G.M. & G. 176.

¹⁸ (1854) 2 Sm. & G. 18.

¹⁹ Per Sir John Stuart V.C. at p. 30.

²⁰ [1957] 1 W.L.R. 201.

²¹ Because his remedy against the company would be the exclusively equitable one of specific performance.

²² At p. 215.

²³ Supra.

²⁴ “ It may be counched in the language of command. It may be a courteous request. It may assume the form of more permission. The language is immaterial if the meaning is plain”: Brandt's v. Dunlop, supra, per Lord Macnaghten at p. 462. The case concerned a legal chose, but this statement applies to both.

²⁵ An example of an equitable chose which exists without a trust is a contractual right to have shares allotted. as in Letts v. I.R.C., supra

²⁶ American Restatement (1935).Google Scholar

²⁷ [1958] 3 W.L.R. 45, at p. 60.

²⁸ Supra.

²⁹ As a “ conveyance or transfer operating as a voluntary disposition intervivos” within Finance (1909–10) Act, 1910, s. 74.

³⁰ Per Morris L.J. at p. 61.

³¹ [1951] Ch. 669.

³² (1921) 124 L.T. 737.

³³ Per Lord Sterndale M.R. at p. 739.

³⁴ Middleton v. Pollock [1876] 2 Ch. 104 proceeded on this assumption.

³⁵ Or whoever else is responsible for the chose if it does not arise under a trust.

³⁶ (1828) 3 Russ. 1.

³⁷ See Bankruptcy Act, 1914, s. 38, and Rutter v. Eoerett [1895] 2 Ch. 872. But debts due or accruing due to the bankrupt in the course of his trade or business ” are perhaps unlikely to include many equitable choses.

³⁸ 59 L.Q.R. 62. No such claims are made for what follws, this being merely a diffident attempt to summarise the present position.

³⁹ This is true of both legal and equitable choses. A statutory assignment is not possible either, as only existing debts, etc., are included under s. 136 of the L.P.A., 1925.

⁴⁰ (1888) 13 App.Cas. 523. An assignment for value of “all the book debts due and owing or which … may become due and owing.”

⁴¹ The distinction is not always regarded: thus (a) is sometimes said to create a trust (e.g., per Thuslow L.C. in Legard v. Hodges (1792) 1 Ves.Jun. 477), but this is misleading. And cases which must fall within (b) do not always make it clear that they depend on a trust.

⁴² e.g., Earl of Suffolk v. Sir Richard Greenvill (1631) Nelson 15; Grouch v. Martin (1707) 2 Vern. 595.

⁴³ See, e.g., Wright v. Wright (1749) 1 Ves.Sen. 410.

⁴⁴ (1839) 4 My. & Cr. 647. A daughter who had been given shares by her father in consideration of natural love and affection was treated as a volunteer.

⁴⁵ Morrell v. Wotten (1852) 16 Beav. 197.

⁴⁶ Lechmere v. The Earl of Carlisle (1735) 3 P.Wms. 211.

⁴⁷ An early example is Pritchard v. Langher (1690) 2 Vern. 198. The debtor knew of the trust but paid the trustee. It was held he must make a further payment to the beneficiary.

⁴⁸ (1874) L.R. 18 Eq. 11 at p. 14.

⁴⁹ This appears from Middleton v. Pollock [1876] 2 Ch. 104.

⁵⁰ Ex p. Pye (1811) 18 Ves. 140 is the first of several examples.

⁵¹ Per Sir John Romilly M.R. in Bentley v. Mackay (1851) 15 Beav. 12 at p. 19.

⁵² (1806) 12 Ves. 39.

⁵³ (1862) 4 De G.F. & J. 264.

⁵⁴ Per Turner L.J. at p. 274.

⁵⁵ e.g., by Dr. Marshall at p. 98.

⁵⁶ (1342) 1 Hare 458. On appeal 1 Ph. 153.

⁵⁷ See per Bayley J. in Hodgson v. Anderson (1825) 3 B. & C. 842 at p. 853.

⁵⁸ In Harding v. Harding (1886) 17 Q.B.D. 442 (discussed below) the court held that one ground on which the assignment succeeded was that a trust had been created, but they stressed that the trust had been “accepted” by the trustees and seem to have regarded this as essential. See per Wills J. at p. 445 and per Grantham J. at p. 446.

⁵⁸ In Harding v. Harding (1886) 17 Q.B.D. 442 (discussed below) the court held that one ground on which the assignment succeeded was that a trust had been created, but they stressed that the trust had been “accepted” by the trustees and seem to have regarded this as essential. See per Wills J. at p. 445 and per Grantham J. at p. 446.

⁵⁹ See for example Bentley v. Mackay (1851) 15 Beav. 12. (The case was mainly concerned with whether there had later been a declaration of trust by the beneficiary.)

⁶⁰ However he could give the trustee the legal right to sue in his name by means of a power of attorney. But this was normally revoked by his death and so would be useless for example for the gift of a life insurance policy.

⁶¹ (1834) 3 My. & K. 36.

⁶² At p. 42.

⁶³ [1891] 1 Ch. 82. The events occured before the Judicature Act, 1873, came into effect.

⁶⁴ At p. 87. Rather curiously he said that this was “within the principle of Kekewick v. Manning ” (supra) but that was a decision on the assignment of an equitable chose.

⁶⁵ The exact requirements are considered below.

⁶⁶ See Salmond & Winfield, Law of Contract, p. 408.

⁶⁷ Judicature Act, 1873, s. 25 (6); Law of Property Act, 1925, s. 136. Can we not “return in peace to the general principles”? asks Prof. Bailey in 48 L.Q.R. at p. 569.

⁶⁸ (1880) 14 Ch.D. 179.

⁶⁹ Described by Prof. Bailey as “unanswerable” in 48 L.Q.R. 547 at p. 563.

⁷⁰ Supra.

⁷¹ (1886) 17 Q.B.D. 442.

⁷² Per Wills J. at p. 445.

⁷³ [1899] 1 Ch. 408.

⁷⁴ Which was not a negotiable instrument.

⁷⁵ At p. 412.

⁷⁶ (1874) L.R. 18 Eq. 315.

⁷⁷ 48 L.Q.R. 565.

⁷⁸ It was urged on the court in Re Williams [1917] 1 Ch. 1, but it was held that only a revocable mandate and not an assignment was intended.

⁷⁹ [1919] 2 Ch. 104 at p. 111.

⁸⁰ [1942] 2 K.B. 1.

⁸¹ Professor Hollond has suggested that the notice to a debtor should be effective from the time of posting: 59 L.Q.R. 131.

⁸² See the dictum to this effect by Fletcher Moulton L.J. in Glegg v. Bromley [1912]Google Scholar 3 K.B. 474 at p. 487.

⁸³ 59 L.Q.R. 129 and 208.

⁸⁴ Supra.

⁸⁵ 59 L.Q.R. 133.

⁸⁶ Supra, at p. 412.

⁸⁷ An oral assignment was upheld in Tibbits v. George (1836) 5 A. & E. 107. But this was made for consideration and so operated contractually.

⁸⁸ Milroy v. Lord, supra.

⁸⁹ This is confined to cases of companies registered under the Companies Acts.

⁹⁰ Companies Act, 1948Google Scholar, s. 73.

⁹¹ s. 26.

⁹² [1949] Ch. 78; [1952] 1 Ch. 499.

⁹³ At p. 510.

⁹⁴ Similarly Re Fry [1946] Ch. 312 where Treasury consent to the transfer was necessary under the Defence Act, 1939, and had not been obtained before the donor died.

⁹⁵ Assuming the second of the four methods described above was rightly rejected.

⁹⁶ See ante, p. 105.

⁹⁷ See Re Bowden [1936]Google Scholar Ch. 71 per Bennett J. at p. 74.

⁹⁸ Forster v. Baker; Re Steel Wing Co., supra.

⁹⁹ This objection does not arise in the case of an equitable assignment because the assignor is made a party to the action and so there is one adjudication on the whole debt.

¹ Williams v. Everett (1811) 14 East 582 makes it clear that this promise is essential.

² (1868) L.R. 3 Q.B. 753.

³ At pp. 758, 759. The principle was derived from Walker v. Rostron (1843) 9 M. & W. 411.

⁴ [1958] 1 Q.B. 448.

⁵ Williams v. Everett, supra.

⁶ Per Bayley J., in Holland v. Anderson, supra.