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4. In England, the matter has been complicated by the history of the law relating to the assignment of choses in action. At common law, except in the case of an annuity, a chose in action cannot be assigned at all. The inconvenience of the rule was avoided by permitting the assignee to sue in the name of the assignor [see reference in f. n. (n) to Section 780 of Halsbury, Vol. IV]. The case where the debtor consents and novatio is effected is really not an assignment. But Courts of Equity recognised equitable assignments from the earliest times [Ryall v. Rowles 1 W & TLC 98 and notes]. The assignment may be verbal (Halsbury, Vol. IV, Section 796). An agreement to assign is enough. [See Tudsbery on Equitable Assignments, pp. 53 and 54 and Ryall v. Rowles 1 W & TLC 111]. An agreement may be made out from a course of dealing between the parties. (Halsbury, Vol. IV, Section 796). An order to pay will be enough provided the intention is clear. William Brandts, Sons and Co. v. Dunlop Rubber Co., Ltd. (1905) AC 454. Then came the Judicature Act, Section 25 (1905) AC 454. The Act created no new rights but enabled the assignee to sue in his own name. It has not made assignable contracts which were not assignable in equity before. Nor does it impair the efficacy of equitable assignments which would previously have been valid (Halsbury, Vol. IV, Section 783). Mr. Anantakrishna Aiyar also contended that no particular form of assignment under the Statute is required, and relied on Halsbury, Vol. IV, Section 788, where it is said, "A direction or order by the creditor to pay the amount is sufficient" and reference is given to Harding v. Harding (1886) 17 QBD 442 and Brice v. Bannister (1878) 3 QBD 569. In the former (not a case of debt) the assignor George Harding writes the instruction to pay at the foot of the account furnished by the trustees. The case is similar to Rama Iyen v. Venkatachallam Pattar (1906) ILR 30 M 75 : 16 MLJ 554. Wills, J. recognises that, " before the judicature Act, it would have been impossible to give a legal title to Laura Harding, so as to enable her to sue in her own name in respect of this right of action; she could have maintained a suit in equity, but the legal title could not have been completed in her. Now it can be done." He then points out that the trustees assented to the assignment. "It seems to me that that fact carries us a step further, and imports into the case another doctrine of equity." Lord Alverston, C. J. in Brandts, Sons and Co. v. Dunlop Rubber (Co. (1904) 1 KB 387 at 394 thinks this is the real ground of the decision a remark not affected by the reversal of the decision by the House of Lords in William Brandts, Sons and Co. v. Dunlop Rubber Co., Ltd. (1905) AC 154 as 1 shall show lower down. In Brice v. Bannister (1878) 3 QBD 569 the only point argued and decided was that there can be a good equitable assignment of a future debt. It is true that Lord Coleridge, C. J. regarded it as a good assignment under the statute, but on appeal, this position was attacked and the counsel for the respondent supported the judgment on the ground that there was a good assignment in equity. Cotton, L. J. opens his judgment by saying that there was a " good equitable assignment." Brett, L. J., who dissented discusses the case only on that footing. None of the Lords Justices refers to the Statute. This has been pointed cult by. Chitty, L. J. in Durham Brothers v. Robertson (1898) 1 QB 765 at 773. It is necessary to refer to Brice v. Bannister (1878) 3 QBD 569. Lord Coleridge, C. J. held that the assignment was within the 25th section. The Court of Appeal decided the case quite apart from the Act. Cotton, L. J. expressly decided the case on the ground of equitable assignment. Bramwell, L.J. reluctantly assented to this view. Brett, L. J. dissented but on general principles. So soon as it was ascertained that there was a good equitable assignment, with power to give a discharge, it became unnecessary to consider whether it fell with in the Act or not. "In William Brandts, Sons and Co. v. Dunlop Rubber Co., Ltd. (1905) AC 154 Lord Macnaghten says in (p. 461) : " With the utmost deference to the Court of Appeal, I have great difficulty, in following their reasoning. The plaintiffs' case was put in two ways. It was presented as a case within Sub-section 6 of Section 25 of the Judicature Act. It was also presented as a simple case of equitable assignment perfected by notice. Unfortunately the stress of the argument was laid on the Judicature Act. The Court of Appeal devoted almost the whole of their attention to it. The substantial question the only question worth considering-was all but ignored. It was treated as subordinate to the question on the statute and bound up with it. The Lord Chief Justice, with whom the other members of the Court agree, says, "I come to the conclusion that this document does not fulfil that which is necessary in order to entitle the plaintiff to sue, on the ground that it is not an absolute assignment or an assignment at all within that section." Why that which would have been a good equitable assignment before the Statute should now be invalid and inoperative because it fails to come up to the requirements of the Statute, I confess 1 do not understand. The Statute does not forbid or destroy equitable assignments, or impair their efficacy in the slightest degree. When the rules of equity and the rules of the Common Law conflict, the rules of equity are to prevail. Before the Statute, there was a conflict as regards assignment of debts and other choses in action. At law it was considered necessary that the debtor should enter into some engagement with the assignee. That was never the rule in equity. In certain cases, the Judicature Act places the assignee in a better position than he was before. Whether the present case falls within the favoured class may be doubted. " But, " says the Lord Chief Justice, " the document does not, on the face of it, purport to be an assignment nor use the language of an assignment." " An equitable assignment does not always take that form. It may be addressed to the debtor. It may be couched in the language of command. It may be a courteous request. It may assume the form of mere permission. The language is immaterial if the meaning is plain." After the references I have made to Cotton and Brett, L. JJ. in Brine v. Bannister (1878) 3 QBD 569, to Chitty, L. J. in Durham Brothers v. Robertson (1898) 1 QB 765 and to Lord Macnaghten in William Brandts, Sons and Co. v. Dunlop Rubber Co., Ltd. (1905) AC 454, I confess I do not understand the sentence in Section 788 of Halsbury, Vol. IV. It seems to me conclusive from the . manner in which Lord Macnaghten deals with Lord Alverston, C. J.'s judgment that, an assignment to be under the statute must either "purport to be an assignment or use the language of an assignment."

7. I may point out that there arc other difficulties in the way of holding Ex. I to be an assignment. For the letter Ex. I to operate as an equitable assignment, the fund out of which the payment was to be made should be specified and if no fund is specified, the order does not operate as an equitable assignment. [Halsbury, Vol. IV, Section 801, p. 378] citing Percival v. Dunn (1885) 29 Ch D 128 where the order was handed to the third party as is the ease before [Ryall v. Rowles 1 W & T L C 112 citing Rodick v. Gandell 1 DCGM & G 763 : 43 ER 893]. But a more formidable difficulty is that the assignment of a debt must be of the whole debt. It is true that the word " absolute" in the English Statute does not occur in the Transfer of Property Act. But the effect of the word ' absolute ' is that it should not be by way of charge [Durham Brothers v. Robertson (1898) 1 QB 765] and the omission of the word permits an assignment of the debt by way of security [Mulraj Khatau v. Vishanath Prabhuram Vaidya (1912) ILR 37 Bom 198 at 210 : see also Venkatachelam Aiyar v. Subramania Aiyar (1912) 11 MLJ 245]. But the distinction between absolute transfers and transfers by way of security has nothing to do with the question whether the assignment should be of the whole or may be of a part. In my opinion the assignment of the debt must be of the whole and cannot be of part. The observations of Chitty, L. J. in Durham Brothers v. Roberston (1898) 1 QB 765 at page 774 are pertinent. " It does not say ' or any part of a debt or chose in action.' It appears to me as at present advised to be questionable whether an assignment or part of an entire debt is within the enactment. If it be, it would seem to leave it in the power of the original creditor to split up the single legal cause of action for the debt into as many separate legal causes of action as he might think fit." The right of assignment is not a common law right and is the creation of the Act and I do not think the Act ought to be construed so as to cause such obvious inconvenience to the debtor. Darling, J. expresses a similar doubt in Jones v. Humphreys (1902) 1 KB 10. Lord Alverstone, C. J. uses words to the same effect in Brandts, Sons and Co. v. Dunlop Rubber Co. (1904) 1 KB 387 at 395 and the reversal by the House of Lords in William Brandts Sons and Co. v. Dunlop Rubber Co., Ltd. (1905) AC 454 does not affect this portion of the Lord Chief Justice's judgment. The different opinion of Darling, J. in (1902) 1 K. B. at 14 does not convince me the decision being reversed by the Court of Appeal (on another point), as the reasons given do not meet the difficulties! pointed out by Chitty, L. J. in Durham Brothers v. Robertson (1898) 1 QB 765. He deduces his conclusions from the fact that a future debt may be assigned. In Sabjan Sahib v. Abdul Aziz Sahib (1917) 42 IC 684 at 693, Seshagiri Aiyar, J. makes an observation that the omission of the word 'absolute' was perhaps intended to settle the conflict in the English decisions. I have already pointed out that the word 'absolute' is used in contrast to 'by way of security' and has nothing to do with the point now raised. An assignment may be of the whole debt by way of security though when the security is worked out, a part only may suffice. There may be a series of assignments each of the whole debt by way of security. The assignees will then be in the position of a number of mortgagees. I am therefore of opinion for all these reasons that Ex. 1 is not an assignment or a valid assignment.