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CHAPTER VIII.

OF TRANSFERS OF ACTIONABLE CLAIMS.

130. A claim which the civil Courts recognise as affording Actionable

claim. grounds for relief is actionable whether a suit for its enforcement is or is not actually pending or likely to become necessary? 131. No transfer of any debt 2 or any beneficial interest in Transfer

of debts. moveable property shall have any operation against the debtor or against the person in whom the property is vested, until express notice of the transfer is given to him3, unless he is a party to or otherwise aware of such transfer *; and every dealing by such debtor or person, not being a party to or otherwise aware of, and not having received express notice of, a transfer, with the debt or property shall be valid as against such transfer 5.

Illustration. A owes money to B, who transfers the debt to C. B then demands the debt from A, who, having no notice of the transfer, pays B. The payment is valid, and C cannot sue A for the debt.

132. Every such notice must be in writing signed by the Notice to person making the transfer, or by his agent duly authorized be in writ

ing signed. in this behalf.

133. On receiving such notice, the debtor or person in whom Debtor to the property is vested shall give effect to the transfer unless give effect

to transfer. where the debtor resides, or the property is situate, in a foreign country and the title of the person in whose favour

Compare the narrower definition 8 Stocks v. Dobson, 4 D. M. G. 15. in the Code of Lower Canada, $ 1583: + That the obligor's consent is not the droit est réputé litigieux lorsqu'il necessary to the assignment of a comest incertain, disputé ou disputable mon money-bond, see I Mad. H. C. par le débiteur soit que le demande 139. See 36 & 37 Vic. c. 66, sec, 25 en soit intentée en justice, ou qu'il y (6): 1 Mad. H. C. 150. ait lieu de présumer qu'elle sera né- 5 12 Cal. 505, 506: Ryall v. Rowles, cessaire.' See, too, Code Civil, § 1700, 2 White and Tudor, L. C., 5th ed. * This does not include a decree, 12

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pp. 765-816.

Cal. 610.

the transfer is made is not complete according to the law of

such country'. Warranty 134. Where the transferor of a debt warrants the solvency of solvency of the debtor, the warranty, in the absence of a contract to the

contrary, applies only to his solvency at the time of the transfer, and is limited, where the transfer is made for consideration,

to the amount or value of such consideration. Discharge 135. Where an actionable claim 3 is sold, he against whom of person it is made is wholly discharged by paying to the buyer the whom price and incidental expenses of the sale, with interest on the claim is sold. price from the day that the buyer paid it.

Nothing in the former part of this section applies

(a) where the sale is made to the co-heir to, or co-proprietor of, the claim sold;

(6) where it is made to a creditor in payment of what is due to him;

(c) where it is made to the possessor of a property subject to the actionable claim;

(d) where the judgment of a competent Court has been delivered affirming the claim, or where the claim has been made

clear by evidence and is ready for judgment 4. Incapacity 136. No judge, pleader, mukhtár, clerk, bailiff or other of officers connected

officer connected with Courts of justice can buy any actionwith

able claim falling under the jurisdiction of the Court in which Courts of justice.

he exercises his functions 5. Liability of 137. The person to whom a debt or charge is transferred transferee of debt.

shall take it subject to all the liabilities to which the transferor was subject in respect thereof at the date of the transfer

· Fisher, $ 141: Sichel v. Raphael, N. W. P. had ruled in 1870 that it 10 Jur. N. S. 1165.

was not expedient that pleaders en* Code Civil, § 1695: Code of gaged in suits should become the Lower Canada, § 1577: Pothier, persons entitled to execute the decrees, Vente, 570.

2 N. W. P. 47. S 12 Cal. 470 : 13 Cal. 297.

& Crouch v. Credit Foncier of EngThis section is taken from the land, L. R., 8 Q. B. 380: Mangles v. Code of Lower Canada, $$ 1582, 1584. Dixon, 3 H. L. C. 735. The illustra It does not absolutely prevent the tion is not very appropriate. The buyer from recovering the full amount debenture not being negotiable

, B, of of the debt, 13 Cal. 145.

course, is in no better position than *9 Mad. 5, 9. The High Court the transferor A.

Illustration A debenture is issued in fraud of a public company to A. A sells and transfers the debenture to B, who has no notice of the fraud. The debenture is invalid in the hands of B. 138. When a debt is transferred for the purpose of securing Mortgaged

debt. an existing or future debt, the debt so transferred, if recovered by either the transferor or transferee, is applicable, first, in payment of the costs of such recovery; secondly, in or towards satisfaction of the amount for the time being secured by the transfer; and the residue, if any, belongs to the transferor 1

139. Nothing in this chapter applies to negotiable instru- Saving of ments ?

negotiable

instru· Davidson's Conv., 4th ed., vol. ii. bearer,' and therefore not negotiable, ments. part ii. p. 727. That the mortgagee of see i All. 732. As to the assignability a debt is liable for its loss if it becomes of contracts between Hindús, and the irrecoverable by his wilful default, see assignee's power to sue in his own Williams v. Price, 1 S. & S. 581. name, 4 Mad. H. C. 176. That a

• They are dealt with by Act contract for the delivery of shares at a XXVI of 1881, supra.

As to the future day is assignable, see 8 Bom. transfer of a promissory note made H. C., A. C. J. 133. As to the transpayable simply to the payee without fer of a mortgagee's rights as such, a the addition of the words order,' or Mad. 212.

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4 Wm. & Mary, Clandestine mort- The whole.

gages.

c. 16.

(6)-Acts of the Governor-General in Council.

Number and year.

Subject.

Extent of repeal.

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IX of 1842 Lease and release. The whole.
XXXI of 1854 Modes of convey- Section 17.

ing land. XI of 1855

Mesne profits and Section 1; in the title, the improvements. words to 'mesne profits

and,' and in the preamble 'to limit the liability for

mesne profits and. XXVII of 1866 Indian Trustee Act Section 31. IV of 1872 Panjáb Laws Act So far as it relates to Bengal

Regulations I of 1798 and

XVII of 1806.
XX of 1875

Central Provinces So far as it relates to Bengal
Laws Act.

Regulations I of 1798 and

XVII of 18061 XVIII of 1876 Oudh Laws Act . So far as it relates to Bengal

Regulation XVII of 1806. I of 1877 Specific Relief. In sections 35 and 36, the

words in writing.'

.

.

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(c)Regulations.

Number and year.

Subject.

Extent of repeal.

Bengal Regu- Conditional sales. The whole Regulation?

lation I of

1798. Bengal Regu- Redemption The whole Regulation!

lation XVII

of 1806. Bombay Regu- Acknowledgment Section 15?

lation V of of debts : In-
1827.

terest: Mort-
gages in posses-
sion.

1 As the Transfer of Property Act has not yet been extended to the Panjáb, these enactments are still in force in that Province,

As the Transfer of Property Act has not yet been extended to Bom. bay, this section is still in force.

ACT XXVIII OF 1866, SECS. 6-19.

(See p. 783, supra.)

POWERS OF MORTGAGEES.

6. Where any principal-money is secured or charged by deed Powers

incident to on any immoveable property, or on any interest therein, the person

mortgages. to whom such money shall for the time being be payable, his executors, administrators and assigns, shall, at any time after the expiration of one year from the time when such principal-money shall have become payable according to the terms of the deed, or after any interest on such principal-money shall have been in arrear for six months, or after any omission to pay any premium on any insurance which by the terms of the deed ought to be paid by the person entitled to the property subject to the charge, have the following powers to the same extent (but no more) as if they had been in terms conferred by the person creating the charge, namely

ist, a power to sell or concur with any other person in selling the whole or any part of the property by public auction or private contract, subject to any reasonable conditions he

may

think fit to make, and to rescind or vary contracts for sale, or buy-in and resell the property, from time to time, in like manner :

2nd, a power to appoint or obtain the appointment of a receiver of the rents and profits of the whole or any part of the property in manner hereinafter mentioned.

7. Receipts for purchase-money given by the person or persons Receipts exercising the power of sale hereby conferred shall be sufficient for pur

chasedischarges to the purchasers, who shall not be bound to see to the money. application of such purchase-money!

8. No such sale as last aforesaid shall be made until after six Notice months' notice in writing given to the person or one of the persons

before sale. entitled to the property subject to the charge, or affixed on some conspicuous part of such property ; but when a sale has been effected in professed exercise of the Purchaser

relieved powers hereby conferred, the title of the purchaser shall not be

from liable to be impeached on the ground that no case had arisen to inquiry as authorize the exercise of such power, or that no such notice as

to circumstances of

sale. 23 & 24 Vic., C. 145, 8. 12. VOL. I.

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